Simula Life

My local bookstore is a pretty good one—as book stores go.  It regularly brings in authors (both renowned and good).  Its reader recommendations are generally excellent.  It purveys only a minimum of kitsch (greeting cards and such).  Its shelves are well stocked…  Well, yes.   And yet no: The bookstore has succumbed to the now well-entrenched Simula-life genre—by which I mean the kind of how-to books designed to aid the curious, the clueless, or the merely incomplete in how to achieve spiritual peace, emotional balance, world class business acumen, an amazing culinary sense… (One could go on.)

Now, in one sense, this is really great.  The books testify to a certain native curiousity and an admirable American drive at self-betterment.  At the same time, these how-to books seem like—this is going to sound really harsh here—instruction manuals for remedial living.  It’s as if—and sadly, maybe this is right—without these books about how to get to X or Y, our culture had failed to equip us for knowing how to live.  It’s like the travel guide approach to human life.  The Michelin guide to relationships.  The complete AAA Trip Tik (with points of interest) for young couples or for the borderline middle-aged.

I know, I know—this is awfully harsh on my part.  And I kind of know I’m wrong here.  I must be in a bad mood.  I don’t know why.  I just got back from Paris.  Maybe that’s it.  I went to lots of cafes (with my laptop to finish a talk I had to give).  The Parisians had no laptops in the cafes.  They were sipping those intensely strong little espressos, talking in twos and fours and fives.   At the outside tables (they braved the cold) they smoked their Gitanes and their Gauloises.  O.K.–I know, you shouldn’t romanticize an entire culture on the basis of cigarette brands and laptops absent from boulevard cafes.

Still, there’s my bookstore back home, with all these instruction manual books for healthy, happy, tranquil, rewarding, successful living.  It occurs to me that the healthy living books probably prescribe happiness….  The happiness books probably prescribe tranquility….  The tranquility books probably…  You get the idea.  Everything is a means to something else.  (The “how to use time wisely books” probably confirm the point.)

It occurs to me that instead of buying all these books, one could just hire a stunt person to live one’s life.  They could report back:  “Yep, you broke a six-minute mile this morning and yesterday you learned to make this amazing Thai appetizer!”  It also occurs to me, one could just buy an entire collection of these books, put them end to end in a big bookshelf.  Tell friends about it: “Yep, could have gone through a rough patch up there—yeah on the third shelf from the top on the right side.  Bought the book instead.”

Harsh, man.  Harsh.

Posted in Experimental, Nature/Culture | Tagged , , , | 4 Comments

Law School Faculties and the Enneagram

Finally, the day came when Professor X retired. You and your friends on the faculty attended her goodbye party and smiled and clapped at appropriate moments. But inside, you whooped and hollered and sang a little song, something not quite as mean as “Ding Dong, the Witch is Dead,” but close. Then, even better, Professor Y got a lateral offer from another school. You shook your head mournfully in hallway conversations and agreed that this was a serious loss. But, again, to yourselves, you and your faculty friends murmured “Score! Another one gone and another one gone….This place is actually going to be great!”  This could go on for a while. And yet eerily, the faculty discussions seem to be repeating themselves.  The subject matter may change, but your new colleagues seem to have stepped into the shoes of the missing ones.  Sure, there are some updates.  The faculty did not replicate itself cell for cell. Still, there are times when you feel like you are playing a game of whack-a-mole. Just when you thought one was underground for good, up pops another just like it. (This phenomenon is not confined to law school faculties, nor to faculties of any kind. Think of any workplace you have inhabited, except perhaps the coffee-shop-home-office. Also, the “You” is fungible.  Maybe You are Me. (See recent Schlag post.) But maybe You are not-Me and waiting for Me to retire or leave.)

Why the feeling of Groundhog Day? Maybe there are only so many types of people. Nine, to be exact. That is the idea behind the Enneagram, a personality typing system that was formalized in the 20th century, but has roots that go much further back in history.

(Which one are you?)

The Enneagram, like all of the various kinds of personality testing and typing (Meyers-Briggs, etc.), has an allure. It is fun, in a navel-gazing way, to try to figure out what type you are and to think about how knowing this might unlock your potential, or make you a better human being. The Enneagram describes the healthy and disintegrated versions of each personality type, the types to which each type is drawn, and the types with which each will always have the most friction. The other thing about the Enneagram that is appealing, and perhaps weirdly comforting, is that even if everyone achieves their healthiest versions of themselves, vast differences in outlook, demeanor, and sense of what is right and just will remain. In other words, in some sense we will always be stuck with the same nine people. (There are, of course, many ways to arrive at a similar conclusion without accepting the Enneagram as the explanation.)  So maybe instead of waiting for people to retire or depart for other schools, we should aim to be the healthiest versions of ourselves, and to cultivate a workplace where that is true for as many people as possible.  To paraphrase John Lennon, we can be nine but live as one. Now that ought to be easy…

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Hugo: A Love Affair with . . .

You thought I was going to say “cinema.” That would be too obvious. Yes, Martin Scorsese’s latest movie pays homage to the magic of film. For those who have not seen it nor read the many reviews, the plot revolves around Hugo (Asa Butterfield) a 12 year old boy who lives in a Paris train station some time between world wars.  Hugo’s dual quests involve fixing an eerily beautiful automaton and then discovering the secret of its creator.  The creator turns out to be the director Georges Melies (Ben Kingsely), a real-life early genius of film who melded his magician’s bent for sleight of hand with the infinite possibilities of the new medium. Hugo knows Melies only as “Papa Georges,” the broken and melancholy owner of a toy shop in the station.

How does Hugo connect the dots between the automaton, Papa Georges, and Georges Melies? With the indispensable help of ….an academic! Rene Tabard (Michael Stuhlberg) is a film historian, a nerdy and obsessed young man who kept the flame of Melies’ work alive by studying and documenting it.  Hugo and his friend Isabelle (Chloe Moretz) are reading Tabard’s book in the library when the author himself walks up behind them. The children inform him that there is one crucial mistake in his book, which is that it assumes that Melies died in the Great War. The children assure Tabard that Melies is very much alive, and Tabard returns the favor by sharing with them the library he has collected of Melies’ work, including what he believes to be the director’s only remaining in-tact film.  Without Tabard, the children and the world would have lost the story of this early film genius and would have had no reason to find and reconstitute his lyrical and entrancing movies.

That is academia at its best, toiling away at obscure subjects for the love of doing so, work that has no apparent market value but that keeps flames of knowledge alive.  Fiction in this case, but during these times of constant questioning of academia, resonant nonetheless

By now you have filled in the title of this post.  “Hugo: A Love Affair with Academics.”

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Law School Hiring (The Faculty Meeting–Appointments)

“O.K. Let’s begin….

We have two agenda items: the  promotion of Professor X which we will deal with first and the appointments matter–Frank Wright and Mary Prescott–which we will deal with second.  Tony?”

“I would just like to say, in regards to appointments, that I favor Frank Wright.  It seems to me that his scholarship on administrative law is very much like the kind of work I do.  In fact, I would say that Frank really reminds me of me.   An earlier version of me.  By contrast, the other candidate, Mary Prescott, reminds me of other people.   Some of whom frankly really aren’t pulling their weight.”

“Yes.  Susan.”

“There are lots of problem with Frank Wright’s course package.  He seems to be a bit of luxury.   And the thing is, Frank Wright is very close in approach to Tony, as indeed Tony himself says.   One thing we need to remember here is that, at tenure, I received 4 votes against me. I think we should all remember that.”


“Well, that’s not the sort of behavior we really want to reward here—you know, people like Tony looking down on me.”

“But Susan, your work really does warrant looking down upon.  It’s just like our candidate’s writing.  Her work reminds me a lot of you actually.  Look at pages 34-36 of her job talk   That’s the sort of thing you would have written.”

“Well, yes, of course, I would.  But you can only understand pages 34-36 in light of what was said on pages 43-45.   The bottom line is that Mary Prescott reminds me of me.  And so she will contribute to the law school in (many) many ways.  By contrast, Frank Wright reminds me of you, Tony, and that’s an unpleasant reminder.  We don’t need more of you.   The law school should be looking to downsize you.  And simultaneously, the law school should be spending far greater resources validating what I do.”

“Could we get back to the appointments issue?  We do have limited time here.  Veronica?”

“I don’t really understand the disagreement here at all.  How is any of this about me?”

“Thank you Veronica.”

“I would like 32 credits for constitutional law.”

“Brian, please, let’s raise our hands.”


“I have a suggestion just to break the deadlock.   Could we simply cut to the chase and go straight to talking about me?”

“Are you saying, Tony, that we should just skip appointments all together?”

“No.  Not at all.   I’m just saying that I (or me, depending on how you look at it) would be a good place to start.  We start talking about me and my accomplishments and move on from there.  If it leads to an appointment–good.  And if it doesn’t, well then, at least, we’ll have covered the main points.   Should I make a motion?”


“Please, let’s raise our hands.”


“If I can intervene here, I just want to make a few broad points on process.  Appointments is essentially an identity issue….”

Posted in Experimental, Random Jurisprudence, The BAT Cave | Tagged , , , | 11 Comments

David Segal’s Paper Chase and Some Musings on Legal Education

Legal education has changed a lot since its depiction in The Paper Chase, in which the imposing Professor Kingsfield grilled James T. Hart into “thinking like a lawyer.”

But you could be forgiven for thinking that all law professors stalk around their classrooms humiliating students with questions posed in fake British accents after reading David Segal’s piece in the New York Times.  Still, regardless of Segal’s one-sidedness, inaccuracies and  overstatements, there are some things to take to heart from his article.  At the same time, despite the several excellent critiques of the article already out there in the blawgosphere, including in particular this one by Frank Pasquale, there remain one or two things to say in defense of legal education and legal academia.  So in decidedly un-Kingsfield like fashion, what follows are some open-ended musings about what we, as law professors, could do better and what we already do well.

We, as a profession, could certainly do a better job of instilling the full range of attributes that a thoughtful, precise and dedicated lawyer should bring to her profession.  Some of these attributes are indeed skill or craft-like, in the sense that Segal and some of the lawyers he interviewed focus on.  Many of those are better learned on the job.  To the extent that is not the case, many law schools (including mine) have robust and excellent clinical programs, in which students acquire skills in the context of thoughtful opportunities to reflect on what they are doing.  Still, many law schools can and should continue to expand on these opportunities, to the extent that they can be done well and are not prohibitively expensive.

Other sorts of attributes are much harder to acquire during a hectic law practice.  They include the ability to distinguish legal doctrine from broader theory; to discern policy arguments from legal arguments; and to look ahead (and sometimes behind) to attempt to assess the broader consequences of a legal strategy.  These sorts of things, we might call them lawyering-and-intellectual life skills, require time and space to cultivate.   While I think that, in the aggregate, law professors (including clinical professors) teach this full range of skills, we do not, as institutions, do a particularly good job of disaggregating them for our students, nor of impressing on our students the importance of sufficient exposure to all of them.  Going forward, we should think about how and when we are teaching (respectively) doctrine, structure, practice, and theory, and whether we are doing each sufficiently clearly, deeply, and well.  This will enable law schools to take up, and take on, the Segal critique and to respond in ways that are not completely defensive or, on the other hand, completely capitulating to the demands of corporate law firms.  To a significant extent, this is the project that former Dean Ed Rubin has embarked on, and I think it is an important one.  At its essence, it is about how to fashion a stronger pedagogy for legal education for all students, for the long and short runs.  It is not, as Segal’s article might lead one to believe, about turning law schools into better conveyor belts for firms.

This leads naturally to what most law schools already do well, which is to begin the process of training students to practice law in a context that also furthers (or for some students, provides their only exposure to) a liberal arts education.  We could lop off a year of law school and make it much cheaper for students.  We could also turn to the 100% trade school model of legal education, though that in all likelihood would make law school more, not less, expensive.  But either path would entail a significant loss to the legal profession and the people it serves.  For most law students, legal education provides their only opportunity to learn about the role that law reform has played in our country’s history.  For many, they learn for the first time about the structure of our government, the history of separation of powers, the uniqueness of the bill of rights, and the singularity of this nation’s embrace of the role of private citizens to shape the law.

As future lawyers, whether they realize it or not, our students will wield immense power over their clients’ lives.  For them to be inducted into the distinctly American version of the legal profession without at least a brief stop along the way to consider where it came from, what it has done, and what it could mean in their hands would do a tremendous disservice to them, to their future clients, and to the legal system that, for better or worse, shapes and determines access to economic, social, and political life in America.  Law professors collectively do irreplaceable work by providing this broader context for our students.

An integral part of being able to provide this deeper education is our ability to engage in research and writing.  Scholarship–at its essence the attempt to add knowledge to the world–is intimately connected to this kind of teaching.  While I agree that, at the moment, there is a bit of an over-production problem in terms of legal scholarship, the solution is not to eviscerate the enterprise altogether.  Instead, the tack should be to take the opportunity to think about what sort of thinking scholars in particular are situated to do.  Chief Justice Roberts may enjoy taking cheap shots at scholarship that appears unrelated to legal problems presented to him in real time, but our teaching would be much weaker if all we did was draft amicus briefs (whether as actual briefs or as articles) for the courts.  (Many of us do this in any event out of a sense of service to the profession, another fact overlooked by Segal.)  If the privilege and opportunity to investigate the history, structures, and effects of the law were exercised only to solve narrow legal problems, vast swathes of understanding, critique, and knowledge production would be swept aside, to the detriment of our students, their future clients, and a country held together by some sense of adherence to its obscure yet ubiquitous legal system.

Rather than react defensively to the current mood of reconsidering legal education, I hope we can try to think constructively about how to maintain the trajectory of modernization and improvement that has been under way for some time.  I hope we can also continue to make the case for why the many people who will find themselves in need of legal representation will be better off if their lawyers have mastered much more than a  narrow set of skills.  If and when the state is standing between you and your health, your loved ones, your belongings or your freedom, you will want much more than someone who knows how to fill out the forms.

Posted in Politics, The BAT Cave | Tagged , , | 1 Comment

Is Neuroscience the Death of Free Will?

So reads the title of a recent opinion piece in the New York Times by Professor Eddy Nahmias.   It warrants a bit of attention if not for its substance, then at least for what it illustrates about the contemporary state of much academic thought.

The author’s thesis is that neuroscientists are wrong to declare the death (or impending death) of free will.  The author argues that the neuroscientist’s claims are predicated upon impoverished conceptions of free will—conceptions that are no longer held in philosophical circles.

Just because I want to be  helpful, here are a few conceptions of free will that will get you (often very rapidly) in trouble:

Here’s another bad way to go:

And then there’s this all-time favorite:

And this (in any form no matter how attenuated or elegant) is what you will want to avoid:

And for my last bit of help, here is a place where you almost surely do not want to go.  The aesthetics here in combination with the serial latinates ought to be, for readers familiar with this blog, a sure tip-off that this is a dead end–in fact the worst kind of dead end: the extremely elaborated, highly complicated, rigorously hypertrophied deadend.

If you ever encounter anything like this, run.  Change departments.  Reconsider your life/career choices.   Drop out.  Anything.

So much for my attempts to help.   Back to Professor Nahmias’  post.  What interests me with his post is not his description of the over-enthusiasm on the part of the neuroscientists in declaring the death of free will.  In this regard, I found Professor Nahmias’ arguments persuasive.  In fact, to go even further than Professor Nahmias, it is not at all clear just how the neuroscientists could falsify the existence of something (free will) that is so ethereal, underspecified and quasi-theological in character.

So let’s leave the neuroscientists aside.

As for Professor Nahmias’ arguments for free will–these seem considerably weaker.  Consider:

Neuroscientific discoveries over the next century will uncover how consciousness and thinking work the way they do because our complex brains work the way they do…  These discoveries about how our brains work can also explain how free will works rather than explaining it away. 

O.K. and now already, we are into difficulties (not lapses of logic mind you, but difficulties.)  The principal difficulty is found in that phrase “explain how free will works.”   Perhaps science might someday describe how free will works.  But description is not explanation and it is hard to see how a robust explanation of free will would not, in the very fact of its articulation, obliterate its ostensible object of inquiry (free will).  To put it bluntly: once explained it seems unclear how free will could survive the explaining.  Of course, describing how free will operates might be a different matter.  But offering a causal account seems self-defeating–akin to seeking a causal force behind the unmoved mover.

Things get worse:

But first, we need to define free will in a more reasonable and useful way.  Many philosophers, including me, understand free will as a set of capacities for imagining future courses of action, deliberating about one’s reasons for choosing them, planning one’s actions in light of this deliberation and controlling actions in the face of competing desires. 

Notice that here we are deeply enmeshed in the language of free will:  imagining, deliberating, choosing, planning, and controlling.   Who or what will be doing this?  Answer: Some agency called,  “c-a-p-a-c-i-t-i-e-s”.   What is c-a-p-a-c-i-t-i-e-s?  It’s not entirely clear.  What is clear from the argument is that c-a-p-a-c-i-t-i-e-s  is, at the very least, an agency capable of imagining, deliberating, choosing…   Perhaps this is O.K.  Still it all feels a bit like Moliere’s dormitive principle:  How does opium put men to sleep?  It has a dormitive principle.   How is it that free will is possible?   We have the capacity for it.  Yes right.  If you want more on “faculty explanations” (how is X possible?  It is rendered possible by Y.  What is Y?  Y is the thing that has the potential, capacity, tendency, etc. to produce X) see my essay Law and Phrenology.)

We act of our own free will to the extent that we have the opportunity to exercise these capacities, without unreasonable external or internal pressure. 

Exactly so.  To elaborate just a bit,  “free will” seems to be an indispensable aspect of morality—and its concepts of responsibility, blame, etc.  Dispense with free will and our law and morals will suffer if not a death blow, then at least grievous injury.

Indeed a recent article in Scientific American recounts a study where apparent belief or disbelief in free will seemed to affect people’s propensity to cheat.  (More determinism = more it’s not my fault.)  For my part, I was deeply influenced by determinism when I first encountered it in college (it was a school where you could not possibly fail a course unless you said deliberately mean and vicious things to your professors).   I used determinism to get an extension on my sociology paper.  Said I, in a display of brazenness and freshman aplomb unlikely to be matched by co-blogger:  “Well, I don’t know why I’m late, but it doesn’t matter.  There has to be a cause.”   To which the professor asked for elaboration–someting on the order of: and what cause is that?  My answer was to say that it really didn’t matter what the cause was, but simply that there had to be one and that it had brought about it’s effect–namely, the impending lateness of my paper.   I got the extension.  (To my students: do not try this with me.)

In any event, there is a great deal at stake.

But that, of course, cuts both ways:  There’s a lot at stake too if free will is in fact an illusion.

O.K. Now we’re in trouble.  “We act…”  Who is this “We” here?  The name of the agency capable of acting with free will?   “We have the opportunity….”  An opportunity?   The sort of thing that establishes the possibility of selection or rejection?    In a free will kind of way?   To put it somewhat churlishly,  is the author saying anything more than:  We have free will when we can act in ways that accord with conditions that enable free will?

Let’s move on:

This conception of free will represents a longstanding and dominant view in philosophy, though it is typically ignored by scientists who conclude that free will is an illusion.  It also turns out that most non-philosophers have intuitions about free and responsible action that track this conception of free will.  Researchers in the new field of experimental philosophy study what “the folk” think about philosophical issues and why. For instance, my collaborators and I have found that most people think that free will and responsibility are compatible with determinism, the thesis that all events are part of a law-like chain of events such that earlier events necessitate later events.[3]

So what?  Folks once believed in Kobolds and wizards.  Burning witches was once the height of common sense.  In my field (law) many people routinely believe that they can actually discern the framers’ intent.   To say it again: So what?

Now, if you sense here a certain impatience on my part with Professor Nahmias’ view, you are right.   The reason is simple.   I have the sense that this is not fundamentally a dispute about free will (its existence or absence) but about other things.  And in fact, Professor Nahmias adverts to these other things when he says:

We are responsible for our actions roughly to the extent that we possess these capacities and we have opportunities to exercise them. 

To put it differently “free will” seems to be an indispensable aspect of morality—and its concepts of responsibility, blame, etc.  Dispense with free will and our law and morals will suffer if not a death blow, then at least grievous injury.  There is, in short, a lot at stake.

But that, of course, cuts both ways:  There’s a lot at stake too if free will is in fact an illusion.

I suppose what gets me is that I’ve never come across a conception of free will that is not either quasi-theological or an unsuccessful attempt at secularization or both.   We continue to be plagued with disciplines that have not come to terms with the residually theological character of their architectures and operations (e.g. moral philosophy and law) and thus persist in mapping out research agendas that are, ab initio, misguided.

Best to leave free will alone and admit that we really don’t know much about what’s happening.   That, of course, is very hard for academics to do:  Academics are not generally rewarded (except in my case) for saying, “We really don’t know much about what’s going on; here are some ways to think about it all.”   On the contrary, academics are generally rewarded for rehearsing and refining the paradigms within which they operate.   (So much the worse for academia.)

Posted in Nature/Culture, The BAT Cave | Tagged , , | 2 Comments

Cain, Cows, the Economy and the Environment

Herman Cain unleashed an advertisement in Iowa, claiming that the EPA’s plans to regulate methane from cows and dust from farms would be the death knell for Iowa farmers.  Truth, or even truthiness, as Steven Colbert would say, do not appear to be hallmarks of Cain’s campaign, and this ad is no exception.  Neither of the assertions in it are true. The EPA has no plans to regulate methane from cows, nor dust from agriculture. Leaving Cain aside, however, the bigger recurring story is the apparent appeal of the “jobs v. environment” rhetoric, addressed recently on the BAT site here.

(But before we leave the ever-popular subject of cows and methane behind, here is a PSA on the topic from Animal Planet, a British outfit that produces environmental animation shorts:)

Back to the larger issue.  One way to counter the “economy v. environment” rhetoric is to resort to facts.  A recent article in the Washington Post took that approach.  Among the facts recounted in the story were the results of a study of four heavily polluting industries: “The researchers concluded that higher spending to comply with environment rules does not cause ‘a significant change’ in industry employment. When jobs were lost, they were often made up elsewhere in the same industry. For every $1 million companies spent, as many as 11/net jobs were added to the economy.”  This resonates with my similar assertion in the previous post, that there is no credible evidence that environmental protection harms an otherwise sound economy.

Another way to counter the rhetoric is to focus on what kind of economy we want.  In other words, there certainly could be more economic development if we eliminated all laws and regulations aimed at protecting the environment.  But do we want to go back to the days of raw sewage in our rivers and smog so thick in LA that on occasion the populace was warned to stay indoors and school was cancelled? Most Americans would reject that extreme version of an unregulated economy.  Raising it as a possibility is a way to redirect the conversation to what is actually at stake, which is how to shape an economy with sufficient guarantees of livelihood, health, and other important values, including natural places in which to live, play and wonder.

Finally, to the extent that environmental regulation imposes costs on business, the effect on jobs is often indirect. Industries choose whether to comply with environmental regulations and continue operating, or instead to close up shop.  The determining factor for them is usually profit.  To the extent that there is any accuracy to the “environment v. economy” debate, in other words, it should properly be described as “profit v. environment,” not “jobs v. environment.”  While I have never been an optimist about the “natural capitalism” thesis, a very important contribution from that literature is that some firms have chosen to incorporate environmental (and social) benefits into their understanding of what it means to do “good” business. Many firms, of course, do not. They make the decision to turn environmental regulation into a job killer.  It’s a choice, not an inevitability.  (And as a mournful aside, we might add that the lives, and therefore inevitably the jobs, of 11 men in the Gulf of Mexico would have been saved had there been adequate environmental regulation of that industry.  Tragically, in that case and others, failure to regulate was the killer.)


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

The Critique of Normativity

OK—this one is deep inside the academy (and destined for the most inaccessible corners of the Bat Cave).   A while back, I wrote “The Critique of Normativity.”   It had thee parts (all three of which are on my law school website here).   The Critique hit a nerve.   Several.   Actually, it might have been the  hypothalamus.

But anyway.

I’ve thought about it from to time.  And in fact I thought about it just yesterday when I talked to my jurisprudence class about the generally moribund state of contemporary American legal thought.  I put it to them this way:  There are about 7,000 legal academics in the U.S. and more than 97% of them confine their scholarship to legal problems they know they can resolve in the approved juridical idioms.   And if they can’t resolve the problems in the approved juridical idioms (i.e. issue a normative prescription pleasing to law review editors) they don’t address the problems at all.

What’s wrong with this picture?  Lots of things.    If you just missed them, let me offer a slightly more pointed version:  The settled practice, in the American law school world (see Spam Jurisprudence) is to address only those legal problems we know we can fix and to disregard the rest.  Still don’t see a problem?  O.K. Imagine, if they did this in medicine.

Posted in Random Jurisprudence, The BAT Cave | Tagged , , | 1 Comment

Tips for Legal Commentators: How to Talk to the Press

Sometimes, legal commentators (law professors and whatnot) are ambushed by the press asking for commentary on a case just handed down.  What to say?   Sometimes one just doesn’t know.   Here then, by way of suggestion, is a list of plausible takes, ready for use in a pinch:

The unresolved problem:

“Yes, it is a tough issue.  We can expect that it will end up in the Supreme Court sooner or later.”

The unexpected decision:

“Well,  I don’t think anyone really expected this.   People are going to look at the opinion very closely to see what it means for them.”

The interminable/incomprehensible highly bureaucratic opinion:

“More than anything, what this decision does is put everyone on their toes.  I think there are going to be a lot of lawyers’ phones ringing this coming week.” Continue reading

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The Economy versus the Environment? Not! (Or Why to Be Tigger Instead of Eeyore this Halloween)

Jobs versus the Environment.  It’s an old rhetorical battle that has recently acquired new life.  Here are some examples of its past.  In the 1970s and 80s, when the Clean Air and Clean Water Acts were passed and initially enforced, industry protested that compliance would kill them.  Guess what?  They survived, and the economy grew.  And again, in the late 1980s, when the hole in the ozone layer was discovered and several nations, led by the United States, decided to phase out chlorofluorocarbons (CFCs), industry fretted that consumers and the economy would suffer.  Guess what? They didn’t. The transition was smooth, and the elimination of CFCs was an international collective action success story. One last example: the hue and cry from the gas and auto industries about removing lead, a proven health hazard, from gasoline.  One last guess?  Industry adapted, our environment improved, and health risks were averted. In the aggregate, there is no evidence that strong environmental enforcement threatens a sound economy.  To the contrary, over the long run, economies adapt well to laws that protect the environment.

On a local level and within short time frames, environmental protection can affect industry’s options, and therefore job opportunities.  When a coal-fired power plant shuts down due to its inability to comply with the Clean Air Act, people lose jobs and governments lose income.  Likewise, when a mine is not permitted because its construction would contaminate water supplies, jobs are not created.  Or, in the context in which these arguments have recently been raised with success, when natural gas extraction proceeds with the least amount of governmental regulation, jobs and income can be produced more quickly than they could without regulation.

Is that the show-stopper? Are we, as many natural gas, coal, and other extractive industry proponents argue, so badly off that we have to lurch at every well pad at the expense of health and the environment?  It is a very pessimistic view to hold.  The word “the economy” is not and should not be a self-executing trump card.  The question always is “what kind of economy, and for whom?”  Environmentalists are often cast as Eyore, full of mope and gloom as they predict the end of the planet.  But in their “the economy will shrivel and die if we take protective measures toward health and the environment” mode, it is the anti-conservationists who play Eyore while those wanting to protect the environment bounce cheerfully like Tigger:  “We should do both!  We can protect our health and the planet and still provide people with livelihoods!”

Here are some reasons to side with Tigger. First, short-term profits at the expense of environmental health and safety are not, in the medium or long runs, economically sound.  Today’s booming gas field is tomorrow’s ghost-town, with an expensive tab for reclamation that is hard to collect.  Corporations keep the profits, but the jobs are long gone and communities are often left with less than they had before the boom. We, especially throughout the American West, have lived through this time and again.  Second, the economic debt for pursuing a solely fossil-fuel dependent economy is cumulative.  Every step we take that adds to global atmospheric greenhouse gas concentrations commits us to greater environmental and economic costs to address the moving-target effects of climate change. Third, and most modestly, a precautionary approach that asks industry to wait for better science and technology before unleashing fracking and its unknown consequences on economically disadvantaged communities is simply sound governance.  Can’t our political and business leaders at least be optimistic enough to say yes to that? For the long term health of our environment and economy, let’s hope there are more Tiggers than Eeyores.

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Theoretical Unspecifiables (Theory Moves)

Theoretical Unspecifiable: [thee-uh-ret-i-kuhl un-spes-uh-fahy-uh-buhl] Noun Phrase

In a theory or a mode of thought, an unspecified (and unspecifiable) term used to resolve gaps, contradictions, incommensurabilities and paradoxes.  A theoretical unspecifiable is conceptually nearly vacant (and inaccessible to theorization) but at the same time sufficiently important to have the appearance of meaning and content.

Examples:  God, faith, judgment, Moliere’s dormitive principle, the thing in itself.

Antonym: concept

See also:  The concept of theoretical unspecifiable was previously elaborated under the name of “theoretical unmentionable” in Pierre Schlag, Contradiction and Denial 87 Mich L. Rev. 1216, 1222-23  (1989). Professor Val D. Ricks, however, rightly pointed out that theoretical unmentionables are not so much unmentionable as they are indescribable.  Val D. Ricks, Contract Law and Christian Conscience, 2003 B.Y.U. L. Rev. 993 (2003). Below is a slightly revised version.

Any theory or mode of thought has certain flaws, gaps, contradictions, paradoxes and other such intellectual embarasments that, Continue reading

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Jobs, Death, Philanthropy and Taxes

As a former user of pc’s and various other non-Apple tech products, I still have the fervor of the newly converted. I love my MacBook Pro, my iPhone and iPad, and think everything Apple is faster, more intuitive, less buggy, and just, well, better in every way. It is easy to join the chorus: Steve Jobs was a genius, and our technological lives are better and more beautiful thanks to him. But there is at least one way in which Jobs’ northern rival surpassed him.  Jobs, unlike Bill Gates, was not a public philanthropist.  During his life, Jobs did not make it known that he gave money to charity, and was subject to criticism as a result. Even in death, it is not clear whether Jobs donated any of his vast fortune. By contrast, Bill Gates is famous for his giving, both personal and corporate.  The Bill and Melinda Gates Foundation gives away at least $1.5 billion each year.  Less well known are the ways in which Microsoft funds pure research by, for example, providing grants to academics who work in areas with no immediate market value or application.  Apple is known for the opposite– a conspicuous absence of corporate giving.

In light of these facts, should we be celebrating Jobs’s life so uncritically? As Elizabeth Warren would point out, he did not make all that money on his own.  Yes, he was a genius, but was he more than that?  If he gave anonymously, about which there is much speculation, we may never know.

Yet, speaking of Elizabeth Warren, her solution is not to rely on the individual philanthropic preferences of the fabulously wealthy.  Her solution is to tax them fairly for the ways they have benefited from the historical and present benefits of a peaceful, safe, secure, and, until now, well-infrastructured society.  Warren Buffet agrees.  So maybe we should not be critical of Jobs. Maybe instead we should think about why philanthropy of all kinds, including by off-the-charts rich people, seems to have replaced the role of governments.

There are tremendous upsides to philanthropy, just as there are upsides to allowing for the accumulation of some degree of wealth.  But they are no substitute for the shared and universal investment by all the people that can be made through good government.  Here are some institutions that are not making up the difference through philanthropy:  public schools, social services, and environmental protection agencies.  And that’s leaving out basic services not traditionally associated with philanthropic giving, such as transportation infrastructure and policing.  (On the perils of turning to a philanthropy-driven model for public schools, see Diane Ravitch’s article in the Sept. 29, 2011 issue of The New York Review of Books.  For a few killer facts (sadly, literally so) about the effects of underfunded environmental regulation, see Peter Maas’s review of books about the BP oil spill in the same issue. And for a broad-side and elegant critique of the general withdrawal of the state from its role as safeguard of the common good, see the late Tony Judt’s Ill Fares the Land.)

This is part of what the 99% are protesting.

So, in the wake of Steve Jobs’ recent passing, maybe we should criticize our political leaders instead of Jobs. We may think less of wealthy people who choose not to give away some of their money.  But ultimately the fault is ours as a nation for failing to recoup what we have invested in them, thereby putting ourselves in the vulnerable position of pining for their beneficence.

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AALS Law School Hiring and Recruitment: How to Get a Job as a French Intellectual (The Interview)

Today, there is a great wealth of advice available to faculty candidates who wish to become law professors.  One of the little known avenues for becoming a law professor (much neglected in even the best existing literature) is to get a job as a resident French intellectual.

Many applicants will have overlooked this possibility at the AALS recruitment conference this past weekend, but now that it’s past, it is time to consider a make-over.

Imagine the surprise at your call-backs when you arrive at the law schools as a freshly minted, full-fledged French intellectual!   Not only will you evoke surprise and break expectations–always a good thing with law professors–but you’ll cause everyone to take a new look at you.

In an effort to help out, Continue reading

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Narcissistic Interpretation (Theory Moves)

Narcissistic Interpretation: [nahr-suhsis-tik in-tur-pri-tey-shuhn] Noun Phrase

A tendency to systematically misread the work of others in a way that confirms one’s world view or satisfies one’s psychological, political or professional needs.

Antonym: charity in interpretation

See also: déformation professionelle; taking words out of context;

In philosophy, the principle of “charity in interpretation” admonishes the critic or the interpreter to try to make sense of the statements or texts of others in ways that render these statements or texts appealing.  To practice charity in interpretation, one looks first to see how Continue reading

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Remembering Derrick Bell

Derrick Bell died last week at the age of 80.  Though his passing was overshadowed by the death of Steve Jobs, Bell’s achievements were recounted in the New York Times and elsewhere:  First African American law professor to be tenured at Harvard Law School; First, and perhaps only, tenured Harvard Law Professor to give up his position as a form of political protest.

Bell will also be remembered for his path-breaking scholarship.  In Brown v Board of Education and the Interest Convergence Dilemma, Bell argued that the outcome of Brown was as much a product of other factors, including the realpolitik of U.S. statecraft, as of beneficent attitudes toward black progress.  It was bad foreign policy for the U.S. to continue to discriminate against blacks, and this, according to Bell, reflected a larger theme in civil rights law.  Whites, Bell observed, would only advance the civil rights interests of blacks when it served white interests to do so.  It is a sobering and skeptical thesis, but it was an important antidote to the dry and abstracted debates about neutral constitutional principles, and it served as a building block for Bell’s larger message.  In all of his scholarly work, from Neutral Principles through the narrative explorations with his fictional interlocutor, Geneva Crenshaw, Bell pushed us to see that legal principles can only go as far as politics will allow.  While some found Bell’s message to be overly cynical or even stereotyping of whites, others, including this writer, found it refreshingly open and even hopeful.  First, although his views were sometimes caricatured, Bell acknowledged that some whites are motivated by equality, anti-subordination, and other altruistic principles.  Bell’s point was that without other motivations, the numbers often won’t add up to achieve racially progressive policies: “Here, as in the abolition of slavery, there were whites for whom recognition of the racial equality principle was sufficient motivation. But, as with abolition, the number who would act on morality alone was insufficient to bring about the desired racial reform.”

Second, Derrick Bell, as a person, was warm and encouraging of all students interested in using the law to make the world more just.  He gave a speech at Berkeley in 1990 during my third year of law school, after he had taken his leave from Harvard to protest the school’s failure to hire African American women as tenure track professors.  Before his lecture, Professor Bell led us in a song, “Swing Low, Sweet Chariot.” He transformed the courtroom that we associated with our collective anxiety about moot court into a church, a concert hall, a celebration of black music, spirituality and overcoming injustice. The message, echoed in his writings, was to go out there and do good things.  Make the world a place where the most expansive civil rights agenda will flourish.  The law will land where it will, reflecting the converged interests of the many and the few, so push the world a bit, even as you advocate for legal change. For my law school friends and me, that was Bell’s message, delivered in a medium that brought us to our feet and made us sing.

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Middleness, Moderation, Compromise, and Other Inflexible Positions

Some Democratic politicians and commentators are wistfully wondering whether Occupy Wall Street and its national counterparts might not be a progressive equivalent of the right’s Tea Party Movement.

A bit late–dontcha think?   And ironic as well.  Because it signifies a 180 degree turn.   And one that may be way too late for President Obama.   Indeed, if President Obama loses the next election, it surely won’t be because he embraced the progressives or the left.    On the contrary, if President Obama loses the next election, it’s much more likely that the explanation can be found in numerous, very non-ironic, photographs much like this one:

President Obama and the OIRA Administrator

For those of you not privy to the small and insular world of law professors or D.C. regulatory agency lawyers, the other guy in the picture is Cass Sunstein, head of an obscure, Continue reading

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America—The Young? (Full-On Decadence)

It is a commonplace that America is a young country.   The idea rests on an implicit frame of comparison (Europe) as well as the ascription of an origin in 1776 or 1789 or some such date.  The idea also rests on a certain cultural ethos typically ascribed to America. Indeed, for much of the last half of the twentieth century,  America had an undeniable youthful élan.   America was the home of rock n’ roll, wide open highways,  and endless strut. Continue reading

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Religion, Sex and Politics

Aren’t those the three things not to discuss with friends and relatives? Yet all three were on my mind one winter afternoon in the Uffizi Museum in Florence, Italy as I wandered lazily through rooms stuffed with iconic renaissance art.  I reached back to dusty memories from high school art history as I took in the paintings by Raphael (a few), Boticelli (a lot, including the famous Birth of Venus), Titian and Veronese.  Crowding out my effort to recall facts about who used light and perspective in new ways and who revived classical iconography were the following intrusive thoughts.  First, about religion, which went something like the following: So much of this art would not have happened without the Church.  (Not that the Church was the sole funder.  The Medici family and other wealthy Italian patrons played their crucial role in bankrolling the Renaissance.  But… the Sistine Chapel.  I think I can stop there.) The art does not excuse, let alone justify, any of the harms, past or continuing, done in the Church’s name, but could all of this art have happened without the Church?  It is one of those unanswerable, midnight-in-the-freshman-dorm kind of questions.  But it might occur to you (at least it did to me) as you wander the halls of the Uffizi, or the Vatican, or the Museo dell’Arte, where Michelangelo’s David stares sternly and perpetually at the horizon.  And if it does, it will add to the reasons why you cannot land exactly where Christopher Hitchens does, so firmly and adamantly opposed to those who take God as their inspiration. Continue reading

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David Brooks v. Belgium

David Brooks has a column this morning, “The Lost Decade,” in which he describes our bad economy as an “emergent condition”—one where the condition (viewed as a whole) is worse than the sum  of its parts.  He then suggests that the big problem is ideologues of the left and right who focus on just one particular part.   According to Brooks, they should instead take a more holistic view of the economy and adopt a holistic response.

There are a number of problems with this analysis–of which I will mention two.   Continue reading

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Legal Formalism (A Refresher on Form)

O.K. for you law people, this will all be pretty familiar.   For you non-law people, this is  an acid challenge—a test of your tolerance for excruciatingly picayune legal exegesis.   One bit of solace I can offer you is that, conveniently, you need not know or learn any law here.  What will be important here is not the substance or the semantics, but the form and the grammar.    The other bit of solace I can offer is that formalism in law bears some similarity to (some) formalism in other domains.   William James, the great American pragmatist, was on to this:

In manners we find formalists and free-and-easy persons. In government, authoritarians and anarchists. In literature, purists or academicals, and realists. In art, classics and romantics. You recognize these contrasts as familiar; well, in philosophy we have a very similar contrast expressed in the pair of terms “rationalist” and “empiricist,” “empiricist” meaning your lover of facts in all their crude variety, “rationalist” meaning your devotee to abstract and eternal principles. No one can live an hour without both facts and principles, so it is a difference rather of emphasis; yet it breeds antipathies of the most pungent character between those who lay the emphasis differently; and we shall find it extraordinarily convenient to express a certain contrast in men’s ways of taking their universe, by talking of the “empiricist” and of the “rationalist” temper. These terms make the contrast simple and massive.

I will add, at the risk of a certain juridical parochialism and a total neglect of theological precedent, that legal formalism (or Langdellian formalism, as I will call it) is—well, it’s almost the pure form.  Exquisite in its exactitude and decisive in its determinations.   At least, that was the plan. Continue reading

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Some thoughts about bats

Bats in various parts of the world, including North America, are at risk from a lethal fungus that is killing them in droves. Elizabeth Kolbert has written eloquently about this in The New Yorker.  We have not yet seen her or anyone else investigate whether we should be similarly worried about our BAT caves– places where eccentric, perceptually different, sometimes upside-down thinking happens. There certainly have been attacks on academia and publicly funded higher education of late.  But we are not sure we have seen the BATs themselves or their investigative reporters step forward to explain why anyone should care or be concerned. Maybe that will start to happen soon, and even here. In the mean time, here is a photo of a bat cave:

Not a BAT cave.  Those look like this:

But note the similarities…

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My Dinner at Langdell’s

It was one of those cold wet April Cambridge mornings. Too wet for fog, but too indifferent for rain. My head ached. My lips were dry and my tongue felt bloated. The fever had surely come back. Worse–the laudanum was wearing off. Tonight would be dinner at Langdell’s. To say I was apprehensive does not quite capture my condition. It was to be an important affair. I had been asked to attend. It felt like a convocation of sorts–though to what end, I remained unaware.
Still, it occurred to me that I would have to finish what I started.   The shock would be rude, but I would have to follow through–either here or somewhere else.
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The Job Interview

Hiring season has arrived. Some law schools have already arranged for on-campus interviews of entry level candidates. Others have made their way through the applicant forms submitted through the American Association of Law Schools (the AALS FAR forms, in the biz) and have filled up their days in DC from dawn ’til dusk with interviews.  On the applicant side, presumably the many people aiming to land a law professor job are honing their thirty-minute interview skills, hoping that the committees in DC are not composed of too many people like John Cleese:  .

Continue reading

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Kandinsky or Hart? Aesthetics. No. 1

Kandinsky or Hart?

Pierre Schlag

Beta Version 1.0

In 1927, Heisenberg introduced his uncertainty principle. By 1934, Wittgenstein was breaking with his early work. In 1923, Kandinsky was putting the finishing touches on Composition VIII:

And in 1958, H.L.A. Hart, the great jurisprudential thinker, was dividing up the world of law into cores and peripheries:

Arresting, isn’t it?

Admittedly, we could be a bit more graphically charitable to H.L.A. Hart.  Hence…

Figure 1: The Dispersed Core/Periphery Field:   To be fair to Hart, the core/periphery thing could look something like this:

Or maybe like this:

Figure 2:  With Policy or Principle Analysis:  If we actually took account of policies and principles, the field might look a bit like this:

Figure 3:  Reductivism (e.g., L&E)   If a law and economics thinker got hold of the dispersed field, then (for good and bad) it might look like this:

Figure 4: Reformalization:   If instead a legal formalist (say, a pro-rules guy like Justice Scalia) came upon a core/periphery dispersed field, then the dispersion of cases (see Figure 1 above) would be subsumed into a new category:

Figure 5:  The Nexus/Totality of Circumstances Move:   A deformalizer, a pro-standards person, by contrast, would disaggregate a category into a set of mobile elements thereby producing a kind of “nexus” or a “totality of circumstances” test.  The category becomes dynamic.  It moves (it distends and is distended) to include (or exclude) all manner of things.    Hence, in an appropriate case, the category above (Figure 4)  might take on a new shape–such as:

Figure 6:  The Hard Case #1–Condensation  Sooner or later the dispersed field condenses at various points and we encounter one variant of the proverbial hard case:

Things can get worse.  Much worse.

Figure 7:  The Hard Case #2–Impacted Precedents  

Figure 8:  The Hard Case # 3–The Pre- or Un-Formalized Field.  The exact opposite of impacted precedents is the pre- or un-formalized field (in which case it is difficult to even articulate what is going on).   This is a lot like what cyber-law looked like when legal academics realized that simply transposing ordinary bodies of law (contracts, torts, property, etc.) would not work.

[To be continued]

The idea for the above as well as some of the ideas for the images were drawn from Duncan Kennedy’s, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. Leg. Ed. 518 (1986) and my article, The Aesthetics of American Law, 115 Harvard L. Rev. 1047 (2002).  The beginning part of  this essay comes from something I wrote in Issue 1 of  The Crit (   That essay goes off in a different direction.

This is a preliminary effort–the thing is under construction.  

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When Art Mattered: Woody Allen’s Midnight in Paris

Midnight in Paris, Woody Allen’s latest film, is a love letter to Paris.  (Like all Woody Allen films, it is also a love letter to beautiful women.  Even the horrible Inez (Rachel McAdams) is sumptuous. And who can resist Carla Bruni as a brainy -beautiful museum guide?)  Gil, played with perfect romantic befuddlement by Owen Wilson, longs for the Paris of the twenties, when Hemingway, the Fitzgeralds, and Picasso gathered at late night soirees and sought Gertrude Stein’s advice.  The movie also promotes but ultimately tempers nostalgic longing.  Romantics of every age, the film reveals, long for the romance of the past.  What is most striking, however, is not the larger point about nostalgia generally, but what Gil was nostalgic for, which is a time when art seemed to matter.  Art and writing and the bohemian cultures that surrounded them were serious but also fun in a way that surely has been romanticized, but for good reason.  The vision, even if it is not real, of an entire culture that embraced art is tantalizing.  Today, art and writing still matter, but the places where bohemianism and intense intellectual engagement about art and ideas take place are small, fragmented and scattered.  They are underground, localized, and/or digitized and remote.  I mean this as description, not criticism.  There are possibilities in the new and networked ways of taking art seriously.  But how then will particular places, like Paris, become metaphors for for our romantic longings of the future?  Where will we project our fantasies?  Onto invisibles 1’s and 0’s flying through space?  Gil’s desire to be born ceaselessly back to the past can be satisfied by moving to the Paris of today.  But where will romantics of the future long to be when the physical world offers no resting place for nostalgia?

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