"... which vary with their attitudes toward religion, which in turn derive from their religious beliefs and affiliations, or lack thereof." They "form confident views without any empirical basis."
Fact-free constitutional adjudication is abetted by constitutional lawyers (prominently including professors of constitutional law), who “know little about their proper subject matter— a complex of political, social, and economic phenomena. They know only cases. An exclusive diet of Supreme Court opinions is a recipe for intellectual malnutrition.”
See, for example, Utah Highway Patrol Ass’n v. American Atheists, Inc., 132 S. Ct. 12 (2011) (dissent from denial of certiorari) (“Establishment Clause jurisprudence [is] in shambles,” “nebulous,” “erratic,” “no principled basis,” “Establishment Clause purgatory,” “impenetrable,” “ad hoc patchwork,” “limbo,” “incapable of consistent application,” “our mess,” “little more than intuition and a tape measure”); Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398– 99 (1993) (concurring opinion) (a “geometry of crooked lines and wavering shapes,” a “ghoul in a late-night horror movie” that can’t be slain even though “no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart”).
I'd have given credit to the Justices responsible for those vivid words — Thomas and Scalia, respectively.
AND: By the way, quoting Scalia and Thomas doesn't very well support the proposition that no one is satisfied (though the proposition is probably true or close to true).
[The $666 figure] is a universally understood symbol of the Antichrist or Devil — one of our culture's most violent religious images. Implicitly, but unmistakably and obviously intentionally, [the Dean] used his powers to set faculty salaries as an occasion to brand his perceived opponents as the Antichrist.
They mostly exist as a way for law schools to evaluate law professors for promotion and tenure, based partly on what they have to say and partly on their success in placing articles in prestigious law reviews. The judge, lawyer or ordinary reader looking for accessible and timely accounts or critiques of legal developments is much better off turning to the many excellent law blogs.
Well, that should get some links from blogs to the NYT, which needs traffic and isn't going to get much from law reviews. The on-line game is so much more energetic and invigorating than the tedious slog to write the unreadable stuff that can be placed — placed, like an unread book is placed on a shelf — somewhere prestigious.
Ever stop in the middle of trying to read a law review article and say to yourself: What am I reading? What this is is a line on somebody else's resume. It wasn't meant to be read. It was meant to be a title with a citation that would be a line on someone else's resume. And how many law review articles will you write before you rankle at perversely worrying 100 pages into a conventional style and form to be edited by students who will strain to eradicate whatever shred of personality made it through to your final draft? At what point will your earnest effort decline into the cynical production of verbiage to be condensed into a single line on your resume?
Liptak cites a new survey of "2,000 law professors, lawyers, judges and student editors," which found that "Law professors were more critical than any other group." Guess who the lawprofs blamed? Students. I've been through this before. I told you 7 years ago about an article I wrote back in 1994 called "Who's to Blame for Law Reviews?" You can read that if you want, but it is a law review article — albeit a very short one — so I'm sure you don't want to read it. The link on "I told you 7 years ago" goes to a blog post, summarizing what I will now compress even further: Don't blame the students, professor. They're your students.
Do law professors realize how much law students are relying on Wikipedia for summaries and insights into the cases we are assigning? In the old days, students spent a lot of money on commercial outlines, stuff like this. I've never looked at any of those books, not as a student and not as a teacher, though over the years, I've had many students ask me to recommend one. Back when I was a law student — I graduated in 1981 — you wouldn't want the professor to know you were the sort of person who'd need or want to use a study guide, so it always surprised me that students would ask me, and I had no answer to the question other than to be careful: These things can be out of date, they may contain errors, and you can be wasting time on a lot of detail that I am not including and missing things that I will develop in class.
The best view of what will be on the exam is what we're talking about in class, which is based on the assigned readings, so why would you put time into reading some questionable alternative material instead of reading the casebook, taking notes on that book, paying attention in class, and condensing your reading and class notes into an outline that forces you to understand precisely those things that the exam will be about?
These days, from what I've heard, students have shifted to Wikipedia, which has lots of great entries for the cases that we read.
I love Wikipedia. I think it is one of the greatest things that has happened in the history of mankind. But you've got to know what it is and what it is not. Who is writing and tweaking those articles on important Supreme Court cases? They're quite well done, but that means they are done by lawyers, law students, and law academics. These contributors offset each other and enforce Wikipedia norms of neutrality, but, of course, law folk are expert at embedding political and policy preferences in seemingly neutral material. (That's what makes the cases so hard to read and understand.)
The first time a student in my class referred openly to Wikipedia, he quoted something that was a bit off. Perhaps it described a state constitutional law provision as banning racial discrimination when what it banned was using race as factor in affirmative action. It was something that needed better editing in Wikipedia.
It immediately occurred to me that a very efficient way to write an exam in this course would be to quote the Wikipedia entry on various cases and, for each, ask whether it is inaccurate. One could pick 10 statements about 10 cases — or 20 statements about 20 case — and ask the student to pick the 3 — or 5 or 6 — that you believe to be most inaccurate and explain why.
It's fine to use Wikipedia. I love it. But you've got to know what you are dealing with.
The notion that women are "polite" in some special way needs examination. Women may have developed a strategy that gets called politeness that works in many situations. But let's be honest about what that really is and why it developed, both biologically and culturally.
No one is engaging in physical combat here. It's verbal sparring, and there's an emotional element that affects your predisposition to that kind of fighting.
There's no reason to think women are less able than men in verbal argument, but there is an emotional aspect to it. Still, when you do verbal argument, you are using emotion. You can't extract all emotion.
Lawyers know this perhaps more than philosophers.
Philosophers are stewing in their own juice. They think the juice needs more women, because lack of women is not the current taste.
They're going through an awkward phase of trying to add women. But women are not passively accepting the role as ingredient in their foul stew.
Why should they?!
Where do those female undergraduates in philosophy go if not to philosophy grad programs?
I bet they go to law school, which would be an extremely rational thing to do.
Although if philosophy departments are desperate enough [about needing] to display chunks of female floating in their gloppy gumbo, it may be a good bet for a few individuals to offer themselves up as the women philosophers, at least for a while, and these women may play the game especially well if they package themselves as specialists in "women in philosophy" issues.
Circa 1970, females entering law teaching would do "Women in the Law" and "Family Law" topics. When I was graduating from law school in 1981 and going into a law teaching job search, one of my female lawprofs advised me (and other women) to resist getting assigned Family Law or any of those women-associated topics. Get right to the seemingly "male" things like Contracts and Corporations.
The cooking metaphor began in the post proper, and the philosophers introduced it.
I just want to warn women to be very careful if any of these aliens displays a text — written in abstruse language — titled "To Serve Women."
"And what makes you mad is that this little twerp has come along and exposed how it's done. Do any of you care why this is being done? It matters to me who is doing it. I've accepted that it's being done just like a lot of you have. But... who is doing it... why are they doing it? Are any of you interested in that aspect of this? Well, of course they say national security, and then when they say national security, 'Oh, oh, okay, okay, fine, fine.' And then you forget about it. Well, you don't forget about it, you just assume. I think everybody's walking around at some level of consciousness, thinking that if somebody wants to find out about them, they can. In addition to that, everybody, if you go to these social networks, Facebook, Twitter, everybody, or a lot of people are volunteering every bit of information about themselves without having to be spied on. Putting a lot of trust in everybody, putting a lot of trust in their fellow citizens, in their friends, in government...."
That's Rush Limbaugh, thinking out loud — which the previous post about the WaPo-Pew poll and the interplay of partisanship and ideology made me think of. It's a fascinating monologue, with Rush saying he's "in a holding pattern just to wait and see, because, as you know, I do everything I can to avoid the conventional wisdom of the day, to follow the crowd." I'm sure his antagonists have no idea he's so measured and thoughtful. It's practically Obamaesque. Or do you think Obama merely poses as thoughtful? The extent to which Obama and Rush pretend to be working through the issues is a mystery we're never going to solve. Anyway, I recommend the Rush monologue, which has him interacting with "Mr. Snerdley," whom we never hear, so we never know what input he's actually getting from his producer/engineer James Golden. Rush tells us "Snerdley's livid at" Edward Snowden, that Snerdley's talking about trying Snowden for "treason" for "giving away... secrets." The implied participation of Snerdley, whose thinking, we're told "may represent the thinking of a lot of you," enhances the dialogic quality of the monologue.
ADDED: I say "enhances the dialogic quality" because Rush's thinking out loud from his "holding pattern" already involves him going back and forth taking different viewpoints. I notice and appreciate this because it feels similar to what I do as a law professor to show students what's going on in a case. But as a law professor, I'm not trying to get to my own answer. Developing the issue and the various arguments and opinions is the end in itself. Sometimes a student will ask me what I think, and I like to say that's irrelevant, but if I have an opinion — if — I'll admit it just to give them more power to try to extract any bias I might have injected into the discussion.
Says the Washington Post in line 2 of a front-page teaser. The first line is: "Barack Obama, Agonizer in Chief" — which implicates a stereotype about law professors.
(Do we agonize? Maybe the law school class is some sort of theater of agonizing over whatever it is we're talking about as we do what we can't do — or we'd be lying/putting ourselves out of work — just tell the students what the answer is.)
But when I click on the link I get to this Ruth Marcus column which begins: "No doubt: Barack Obama has what it takes to be a terrific law student. It’s less clear those are the ingredients of a successful president." So... not even a law professor. A law student. I guess the WaPo couldn't bring itself to tease us with "The U.S. needs a leader, not a law student."
Marcus tells us that a "terrific law student" analyzes everything "in a dispassionate, balanced way" without necessarily really taking much of a position, which is what, she says, Obama did in his speech last week at the National Defense University. "Barack Obama... the Agonizer" is at least way better than "George W. Bush... the Decider," because Obama must be better than Bush, because Bush was terrible. Bush was so not terrific. Bush, Marcus tells us, "decided too precipitously and agonized too little." But Obama is just too thoughtful.
Marcus compares Obama's speech to "scribbling exam answers in a blue book." She calls him "ever the A-plus student," even as she looks ready to give him a C- as he calls Guantanamo "this legacy problem" that ought to be "resolved, consistent with our commitment to the rule of law."
This answer doesn’t even pass the law student test. How, exactly? That the solution is elusive does not justify this blatant dodge.
The lawprof in me wants to say that if Obama's speech is the text to be understood, Marcus is the one who's not a terrific student. Her writing rests on the presumption that the words of his speech are the same words that run through his head as he thinks about the various problems and the words that he speaks in private. I say "her writing" because I'm not deluded enough to think that the words in the Washington Post are the words inside Marcus's head. She's arguing to him and his advisers that he needs to do something different and he's not getting away with the seemingly dispassionate, balanced analysis. She'd like to manipulate his mind.
And Obama, in his speech, was attempting to manipulate our minds. The performance in the Theater of Agonizing is for a purpose. We can try to discern his purpose — perhaps to get us to trust in his caretaking and to be patient while he continues to do the things that need to be done and not to look too closely at the incoherencies and possible illegalities. This is what leaders do.
"I’m sure that there’s a Brooklyn-specific backstory to this, but it has to be read against the background of plummeting applications, especially to lower-tier-but-expensive schools like Brooklyn. Making it easier to get rid of faculty may be essential to their survival, enough so that they’re willing to take the inevitable hit in terms of recruiting."
Says Instapundit. What part of that hurts the Brooklynites the most? I'm guessing "lower-tier." Brooklyn comes in at #80 on the U.S. News ranking. I think people at that level would like you to consider them "second tier."
I suspect the new definition of "Adequate Cause" for termination of tenured faculty is a gesture of some kind, intended to show students that their opinion really matters but highly unlikely to lead anyone losing his job. Maybe it creates some pressure on faculty not to be toxic. I doubt it. The really toxic people tend to be delusional. Put some pressure on that person citing the "Adequate Cause" provision and watch what happens. Maybe you could do it well enough that the person will relocate or retire, but it might get bizarre. If toxicity is encapsulated, do you lance it?
(Note: I was a visiting professor at Brooklyn Law School in Fall 2007 and Spring 2008, but I have no idea whether this rule relates to any specific person who might be poisoning the experience there or whether it's a fairly empty gesture.)
That's in response to a New Yorker article quoting something Cruz said in a speech 3 years ago. (What Cruz said back then, at an Americans for Prosperity conference, was that when he was at Harvard Law School "There were fewer declared Republicans in the faculty when we were there than Communists! There was one Republican. But there were twelve who would say they were Marxists who believed in the Communists overthrowing the United States government.")
The Cruz spokesperson called it "curious that the New Yorker would dredge up a three-year-old speech and call it 'news.'"
Curious... there's a noncommittal word. I don't see anything wrong with digging stuff out of old Cruz speeches. He's a new character on the national stage, so it's not like old territory is being reworked. It was an inflammatory statement, and he needs to stand by it (and back it up), defend it as hyperbole, or concede he was wrong. The New Yorker writer, Jane Mayer, was following up after Barbara Boxer had compared Cruz to Joseph McCarthy. That was pretty inflammatory too (as I said at the time). What Boxer said made it a valid line of inquiry for Mayer and not odd at all. What you say to your base will be heard by the outsiders too, and any politician needs to be prepared for that. Republicans hoping for a new star better not forget how badly Mitt Romney faltered when he had to deal with the 47% remark he'd used on the insider group. This Cruz quote is the same kind of thing. Don't minimize it.
Mayer talked to Charles Fried, the Harvard lawprof who was probably the one Republican referred to by Cruz. Fried says:
"I have not taken a poll, but I would be surprised if there were any members of the faculty who ‘believed in the Communists overthrowing the U.S. government".... Fried acknowledged that "there were a certain number (twelve seems to me too high) who were quite radical, but I doubt if any had allegiance or sympathy with anything called ‘the Communists,’ who at that time (unlike the thirties and forties) were in quite bad odor among radical intellectuals.” He pointed out that by the nineteen-nineties, Communist states were widely regarded as tyrannical. From Fried’s perspective, the radicals on the faculty were "a pain in the neck." But he says that Cruz’s assertion that they were Communists “misunderstands what they were about."
Clearly, it was rhetoric to call the Critical Legal Studies professors "Marxists" who believed in "Communist" revolution, and Cruz chose to do that at a particular place and time. Cruz is accountable for that. It's a shibboleth of the right to rely on the words "Marxist" and "Communist." It wasn't the way the lefty lawprofs of the time talked about themselves. I have a vivid memory of saying to a CLS lawprof — a very good friend, during a casual conversation — "I'd like to know about the connection between CLS and Marxism." She snapped: "There's none." I got the message: You sound right wing. It was understood that to sound right wing was to become toxic.
Left-liberal rights analysis submerges the student in legal rhetoric, but, because of its inherent vacuousness, can provide no more than an emotional stance against the legal order. The instrumental Marxist approach is highly critical of law, but also dismissive. It is no help in coming to grips with the particularity of rules and rhetoric, because it treats them, a priori, as mere window dressing. In each case, left theory fails left students because it offers no base for the mastery of ambivalence. What is needed is to think about law in a way that will allow one to enter into it, to criticize without utterly rejecting it, and to manipulate it without self-abandonment to their system of thinking and doing.
In the previous post, we're talking about what Jesus wrote in the sand and what he said out loud, in the New Testament story where the scribes and Pharisees present Jesus with the question of what to do with a woman who was caught in the act of adultery. In the Gospel text, we're told Jesus that wrote on the ground, but not what he wrote, and we're told that he subsequently spoke and said "Let him who is without sin among you be the first to throw a stone at her."
I'm putting up a separate post because I found the scene that sydney said he loved in the movie "The King of Kings." Made in 1927, it's a silent movie, so no one is saying anything out loud. We see what Jesus says written out on the intertitles, and we also see what he writes in the sand.
Beautiful filmmaking, particularly as the sand-words, not written in Roman letters, transform into our English words, naming the sins that the men in the crowd realize they've committed, and that's why they all turn and walk away.
That's not an accurate depiction of what happens in the biblical text though. The movie shows a mob on the verge of stoning the woman and Jesus intervenes and announces his rule about casting the first stone. Only thereafter, does he write the names of the sins in the sand. But in the Bible story, there is no angry mob with stones in hand. There are scribes and Pharisees demanding that Jesus deliver a legal opinion. Jesus bends down and writes on the ground instead of answering the question. Only after they persist does he stand up and pronounce his new rule, which causes the scribes and Pharisees to walk away — "beginning with the older ones." The movie would have you see the members of the mob acknowledging their sins and their consequent lack of qualification to cast the first stone. But the text has intellectuals trying to box Jesus in on a question of law, and Jesus getting the better of a conversation he didn't want to have in the first place.
It's not surprising that a movie plays up the visible drama, and it's also not surprising that when I — a law professor — read the text, I see something akin to a law school class. The professors try to stump the student and the student transcends their tricky game. To me, the part where Jesus bends over and writes in the sand is like what happens in a law school class when the lawprof poses a difficult hypothetical and the students bend their heads down and go through motions of writing. They don't want to answer. It's not that they're writing something magically revelatory and startling. But if the lawprof keeps pushing and calls on someone, an answer will be spoken out loud.
I guess the law-professorly interpretation of the text isn't terribly cinematic. It's no wonder the movies present an angry mob with stones in hand and Jesus miraculously knowing and changing the hearts of the sinners. (And the adulteress is an actress evincing exactly the form of sexiness that was fashionable in the year the movie was made. I love the eyeliner!)
But to me the lawprof interpretation is thrilling and dramatic. The professors think they've got the upper hand. They know the legal text and it's tough. And then the brilliant student who will soon be the greatest professor of all gets on top of the dialogue and says something they must accept as correct: If you're going to have strict rules and severe mechanisms of enforcement, you must apply them equally to everyone. This is the structural safeguard of equal protection of the laws that is the necessary component of a democratic system. If there can't be exceptions and special treatment for preferred people, legislatures will resist imposing harsh rules and painful punishments.
In this context, let me give you my favorite Justice Scalia quote, which happens to include one of the key words of Christianity: "Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me."
"... to just hop in, teach from the hip, and turn this upheaval into a Con Law experience like no other. Doesn’t Columbia Law have one professor like that? Doesn’t Columbia have any professors who want to teach just because interacting with young people and shaping minds about constitutional theory is kind of fun?"
Doesn’t Columbia even have any professors who at least want to send the message that lawprofs teach because interacting with young people and shaping minds about constitutional theory is kind of fun?
It's also interesting that at Columbia, a law professor is missing classes because she's going through a divorce. Back in the 1980s, when my first marriage broke up, it happened to coincide with a research grant that gave me a full semester off to write. I've always believed it would have been much better to have had classes to give some structure to those days.
Meanwhile, Instapundit links to Steven Bainbridge who talks about Columbia's solution of lumping 200 students together in one big class. What's the big deal if the teacher is lecturing, which, per Bainbridge, is a good idea anyway.
I suspect the students would have a few questions like: Why am I paying so much tuition if all I'm getting is something I could be watching on the Internet? And why are you paid so much money to lecture in person in front of people who could just as well be watching video of whoever is the very best lawprof lecturer on this subject?
His legal arguments were subtly presented applications to specific problems of a classic liberal philosophy which, in turn, was grounded in his belief that law must take its authority from what ordinary people would recognise as moral virtue....
Perhaps Dworkin's greatest achievement was his insistence on a rights-based theory of law, expounded in his first and most influential book, Taking Rights Seriously (1977), in which he proposed an alternative both to Hart's legal positivism and to the newly minted theories of the Harvard philosopher of law John Rawls....
He remained an unapologetic, indeed proud, liberal Democrat, unshaken in his loyalty to the New Deal tradition set by his hero Franklin D Roosevelt, even as such ideas became less and less widely held. It is possible that this shifting of the political centre of gravity under him deprived him of a more prominent career as a public intellectual.
Read the whole thing. Click on the Dworkin tag to see what we were saying about him while he was alive.
When I went to law school beginning in 1978, at NYU — where Dworkin taught — nothing was taken more seriously than "Taking Rights Seriously." That was just before the outburst that was Critical Legal Studies, in a time and a place where we were expected to believe that rights were real. Shame on you if you suspected they were inventions of judges.
There may be a couple of solutions, but one is obviously the best, and that's what Miller did. The students got some "lulz," other profs experienced twinges of vicarious pain, and Miller got to teach the world 2 more lessons — what not to do and what to do.
