Balkinization  

Tuesday, February 06, 2007

Let's Be Very Clear: Ted Haggard is a Zero on the Kinsey Scale

JB

From the New York Times:
One of four ministers who oversaw three weeks of intensive counseling for the Rev. Ted Haggard said the disgraced minister emerged convinced that he is ''completely heterosexual.''

So is he really a 0 on the Kinsey scale, or at most a 1? Does the fact that Haggard admits to only one same-sex experience mean that he is "completely heterosexual," or does it mean only that he has lacked opportunities?

For reasons I've explained elsewhere, I think this is the continuation of a very sad story. Obviously, Haggard and his associates can declare him to be anything they like. What makes the story sad is the use of the term "completely". It is clearly very important to the ministers-- and to Haggard himself-- that he not have any speck of homosexual desire, for to have any such desire, no matter how small, would be polluting. It is, sad to say, all too similar to the Jim Crow theory that one drop of black blood made you black and therefore socially inferior to "pure" whites.

The Kinsey scale, whatever its limitations, was premised on the assumption that sexual orientation in human populations is not a matter of either opposite-sex or same-sex, or of healthy desires and polluted ones; rather it involves a continuum of possible orientations that are spread across a population distribution-- as are so many other human traits. What Haggard and his friends particularly want to deny is this fact, because it changes the meaning of normalcy and undermines their way of seeing the world.

Breaking down the vote

Sandy Levinson

The Washington Post has a breakdown of yesterday's 49-47 vote regarding bringing the statement of opposition to the surge to the floor for debate and an eventual vote. 60 votes were required to cut off debate, so it doesn't matter if a majojrity of the senators (representing, incidentally, a substantial majority of the American population) voted to do so, since the Senate continues to be the single most undemocratic institution in our national polity, thanks to our defective Constitution.

The breakdown offers a variety of opportunities for rumination: Democrats split 46-1 (with Tim Johnson not voting) in favor of the debate; Republicans voted 45-2 (two not voting) against. (Harry Reid, incidentally, was the one Democratic "no" vote, which makes me think that he was voting "no" for completely tactical reasons.) The two Republican nays were Norm Coleman and Susan Collins, both of whom are no doubt concerned that they will face the justified wrath of their constituencies when they run for re-election in 2008. What this means, of course, is that John Warner and Chuck Hagel, among others, remained party (and Bush) loyalists on this one. Interestingly enough, John McCain and Mel Martinez, the new Republican national chairman, chose to be absent themselves from this vote. The two independents, Lieberman and Sanders, split.

Of the 16 female senators, 11 voted to end debate, four voted no and one (Democrat Mary Landrieu) did not cast a vote. Males, on the other hand, split 43-38 (with 3 not voting) in favor of the Republican "no" position. Regionally, the South, as always in recent years, proved to be the heart of Bush support, splitting 20-10 against debate (with two not voting). Equally unsurprising is that the Northeast was 13-5 in favor of moving forward with the debate. Baby boomers were considerably more likely to support moving on (26-18, with three not voting) than were "pre-boomers" (i.e., people my age), who voted 29-24 (1 not voting against) against debating the bipartisan resolution. Finally, and most tantalizingly, it turns out that Leos, Libras and Scorpios were especially likely to vote "yes" on moving forward (4-1, 7-2 and 8-4 (one not voting), respectively), whereas Virgos (6-3, one not voting) seemed most adamant against a full debate. The outlying Leo, incidentally, was Elizabeth Dole, who shares that sign with, among others, Barack Obama.

I leave it to others to mull over the full implications of these breakdowns, including the fact that one of our country's premier newspapers offers a breakdown by astrological sign.

Monday, February 05, 2007

Two Concepts of Commander-in-Chief

JB

Just as there are two inconsistent theories of the idea of the "Unitary Executive," there are two inconsistent theories of the term "Commander-in-Chief."

Under the first theory, the Constitution's designation of the President's as Commander-in-Chief means that the military is and should be ultimately under the control of civilian government and its requirements of republican government and the rule of law. This idea is designed to head off the tendency in many countries that begin as democracies for the military increasingly to dominate civilian authority, eventually, in the limiting case, leading to overt military disobedience of civilian authority and military coups.

The Framers distrusted the idea of standing armies and feared the degeneration of democracies into dictatorships, a distrust that is evidenced in several features of the Constitution-- the requirement that army appropriations must be regularly renewed, the Second Amendment's right to bear arms (so as to counter an oppressive federal army) and civilian control of the military, as embodied in the idea of the President as Commander-in-Chief and Article I section 8's delegation to Congress of law making and appropriations power over military matters.

Implicit in the very notion of civilian control of the military is that the President is a civilian, not a military official; because the President would be subject to the rule of law (including Congressional regulations and appropriations under Article I, section 8), so too would be the military that the President directed.

The second conception of the President as Commander-in-Chief is that the President stands at the head of the armed forces of the United States and therefore that he is and should be entrusted with all important decisions regarding the conduct and use of the armed forces. Under this conception, Congress may not interfere with the President's use of the military (despite textual authority for doing so in Article I, section 8) because this would undermine or interfere with the Presidential chain of command. This idea is analogous to but not identical with the version of unitary executive theory that says that Congress may not regulate an expansive set of inherently executive functions.

The problem with the second conception of Commander-in-Chief is that it turns the Framers' principle of civilian control over the military on its head, realizing the Framers' fears in a different way. The danger now is not that the military will act independently and pressure the civilian government into capitulation but that the President will see the opportunity to use his position as head of the military to escape Congressional and judicial control; he will use control of the military and patriotic appeals to take the country into a series of misguided wars or to establish quasi-dictatorial powers.

Both scenarios are troublesome constitutionally. The Framers feared both Caesars-- military officials who bully republican forces and ultimately take over civilian government-- and monarchs-- who sit at the head of civilian government and use their power over the military to disregard legislative and judicial controls.

In order to secure civilian control of the military, the civilian authority that controls the military must *itself* be subject to legal controls by the other branches; otherwise it will be tempted to use its control over the military to dominate the remainder of civilian government. The President can dominate politics by emphasizing threats-- whether real or imagined-- to national security and by engaging the military in repeated wars, whether wise or unwise. The framers well understood that incompetent or vainglorious leaders have moved from one unwise military conflict to another in order to dominate the political agenda and maintain their political control. Because national security is the source of the President's political independence and rhetorical authority, Presidents who lack good judgment will be tempted to use that independence and that authority for all that they are worth. Such a President will increasingly identify the good of the nation with himself and with his ability to make decisions; he will castigate critics as unpatriotic or as undermining the military chain of command in time of war. This is Caesarism by a different route.

Thus, *precisely* because the President is Commander-in-Chief, and ultimately in control of the military, someone else in civilian government who is not under his control must be able to check his adventures and hold him accountable to law.

That is why the two different theories of "Commander-in-Chief" are inconsistent with each other. You can have the President exercise civilian control over the armed forces. (Theory one). And you can have the President effectively immune from Congressional control over how he uses the armed forces in his control. (Theory two). But you can't have both. Otherwise Presidents may use the military to maximize their political power and to minimize legal constraints on their actions. This lethal combination ultimately destroys republican government. In the alternative, the country may get an incompetent President who gets the country into disastrous and wasteful conflicts with no effective way to stop him. That tempts Congress to turn to the military to discipline or forestall the President, which ultimately undermines civilian control of the military. What the Congress gains by stopping a runaway President it loses by weakening the principle of civilian control in encouraging the military to act as a counterweight to the White House.

All this came to mind as I considered this despairing analysis by James Fallows, who is greatly worried that the Bush Administration may soon find an excuse to attack Iran:

If we could trust the Administration’s ability to judge America’s rational self-interest, there would be no need to constrain its threatening gestures toward Iran. Everyone would understand that this was part of the negotiation process; no one would worry that the Administration would finally take a step as self-destructive as beginning or inviting a war.

But no one can any longer trust the Administration to recognize and defend America’s rational self-interest — not when the President says he will carry out a policy even if opposed by everyone except his wife and dog, not when the Vice President refuses to concede any mistake or misjudgment in the handling of Iraq. According to the constitutional chain of command, those two men literally have the power to order a strike that would be disastrous for their nation. The Congress has no official way to prevent them from doing so — it is interesting, and alarming, to think that in practice the safety valve might be the professional military, trained to revere the chain of command but faced with what its members would recognize as ruinous instructions.


But as Fallows recognizes, our constitutional system cannot afford this particular safety valve. The military must follow civilian orders. The way out of the danger is not to look to the military to discipline the President. Congress must reassert civilian control over over the Presidency through its Article I, section 8 powers.

It is true that the President sometimes needs to make threats that he does not intend to carry out in order to be a credible bargainer on the international stage. But to do this he must also have credibility at home-- people have to trust that he will act reasonably and not get the country into a disastrous conflict-- as he has before-- and disregard wise counsel and recalcitrant evidence-- as he has before. The President must regain the trust of Congress before he can usefully engage in saber rattling. Until he does so, Congress must rein him in. The current Democratic strategy of nonbinding resolutions, I fear, will not be enough. They will be too easily disregarded. The Democrats have assumed that nonbinding resolutions will signal to the President that he is isolated politically. That will do nothing. This President already knows that he is isolated politically. He already knows that the public is against him and he plans to proceed in any case. Like any headstrong individual, this President needs to understand that there will be real consequences for not acting responsibly.

This Administration has undermined the constitutional system in general and the Presidency in particular. Executive discretion in a system of separated powers requires trust and confidence in the quality of executive leadership by the other branches and by the American people themselves. The Administration has been so insistent on maximizing executive authority through foolish decisions that it has destroyed those elements of trust and confidence. As a result, the other branches must now check the President. The Administration that sought to increase Presidential authority may well end up diminishing it.


Sunday, February 04, 2007

Has self-interest really been abolished as the primary motive of economic activity?

Sandy Levinson

A superb article in Sunday's New York Times elaborates the way that the federal government is increasingly "privatizing" basic functions of government by hiring corporations. Much could be said--indeed, Paul Krugman has an apt column in Monday's Times--but the really key point is made by David Walker, the Comptroller General of the United States: “There’s something civil servants have that the private sector doesn’t. And that is the duty of loyalty to the greater good — the duty of loyalty to the collective best interest of all rather than the interest of a few. Companies have duties of loyalty to their shareholders, not to the country.”

Private market buffs are caught in an intellectual bind, which is to explainwhy Mr. Walker is wrong. After all, the basic argument of market economists is that made by Bernard de Mandeville in the 18th century, that "private vice leads to public virtue." I.e., people motivated by crass self interest will nonetheless serve the public good by inventing products and services that other people will want to buy. We call such people entrepeneurs, who serve a vital function in our society, but no one really believes that Michael Dell is motivated to serve the country rather than, at best, the shareholders of Dell. (And free marketeers always have a problem with "agency costs," explaining why corporate managers who may own relatively little stock will put the shareholders' interests ahead of their own with regard, say, to compensation packages and perks of office.)

So my point is this: If Mr. Walker is wrong, then we would expect free-market economists to applaud company management and workers who regularly ask "is this good for the country" rather than "is the good for shareholders and the economic interests of my family." I know of no such economists who do so. And Milton Friedman famously argued many years ago that companies should not contribute to charities (which, to be sure, often serve the contributors' own self interests in developing local reputations as philanthropists by giving away other peoples' money), but should instead relentlessly serve the interests of their shareholders, who could decide on their own whom to contribute to. Is Friedman's insight now rejected by free-market conservatives? Should we throw away our Mandeville and Adam Smith and instead talk about wired-in impulses on the part of corporate executives to serve the public good even at the cost of the interests of the companies for whom employees work? The Times' story ends by describing a recent session with a Homeland Security Administration official speaking to denizens of big business seeking government congtracts. "Joe Haddock, a Sikorsky Helicopters executive, summed up the tone of the session. 'To us contractors,' Mr. Haddock said, 'money is always a good thing.'” Indeed.

The Bush Administration--which, by the way, has, because of our defective Constitution, 716 remaining days in office--is not only manifestly incompetent and, one increasingly suspects, spectacularly corrupt--but also operates under a theory of privatization that absolutely contradicts the most basic insights of the free-market ideology that they ostensibly subscribe to. What am I missing (besides my taxpayer dollars that are going to the coffers of Bush company friends who are looting the public treasury)?

The Future of Blogging and Legal Scholarship

JB

My interview with the Yale Law Report (available here) has generated lots of thoughtful commentary in the blogosphere:

Please send any links to other discussions that I've missed.

There is also an very interesting discussion and set of papers from the April 26, 2006 conference at the Berkman Center.

I'll also be addressing some of these issues at a symposium at New York Law School on February 16th. The conference has a great lineup of panelists and promises to be lots of fun.

My general practice for free standing documents that I embed in the blog is not to turn on comments, but if you want to comment on the original interview, on my Yale Law Journal Pocket Part essay, (itself part of a larger symposium) or any of the commentaries, please feel free to do so here.

Associates of the World, Unite!

David Luban

A few days ago, Brian posted here on the subject of the economics of corporate law firms. Sandy Levinson responded:


One may be averse to applying Marxist analysis these days, but I think the relationship between young associates and their partners is precisely what Marx analyzed as expropriation by bosses of the surplus value generated by their workers. It's hard to feel much sympathy for a "working class" making $160,000/year, but, presumably, they’re generating much more than that in fees that are appropriated by the partners, since, even at $800/hour, the partners can't generate enough billable hours to add up to their million dollar income.

I’d like to expand on Sandy’s comment; I’ve thought for years that large law firms might be one of the handful of venues in which volume 1 of Capital applies in almost pure form.

With overhead, an associate costs a law firm about double her salary. So, a first-year associate at a blue-chip law firm who makes $150,000 costs the firm $300,000. On average, first-year associates’ billing rate is in the $200/hour vicinity (higher in the major law firms). Thus the associate must bill 1,500 hours simply to pay for herself. Because not every hour can be billed, that is about 1,800 hours of actual work, or 36 hours per week over a 50-week work-year – six hours a day, six days a week. This is what, in volume 1 of Capital, Marx called the paid part of the laborer’s day: the part of the day in which the worker recoups the price of her labor-power or, in Marx’s terms, reproduces her labor-power.

The rest of the day is the "unpaid labor" generating the surplus-value that the partners appropriate. Remember, each additional billable hour over and above the paid part of the day nets $200 to the partners. An associate billing 2,200 hours a year is billing 44 hours a week (and working 53), yielding 8 hours a week of surplus labor, or $1,600 to the partners each week: $80,000 each year. If the associate goes up to 2,500 billable hours a year, she is billing 50 hours a week (and working 60), yielding fourteen hours of surplus labor, or $2,800 to the partners. Each year, that’s $140,000 of profits to the partner per associate, as compared to $80,000 if the associate works "only" 53 hours a week. So, the partner stands to profit an extra $60,000 annually by inducing the associate to up her hours from 8.8 hours a day, six days a week, to 10 hours a day, six days a week.

Next, consider how leveraged the partnership is (that is, the associate-to-partner ratio). Obviously, it is risky to take on an extra first-year associate, who costs $300,000 for the year; but, if you have enough clients to generate the work, you stand to gain between $80,000 and $140,000 a year (more, if you can get the associate to go up to 12 hours a day or to work on Sundays) by risking the investment on the extra associate. The most prominent and profitable firms are also the most leveraged: their prominence brings in the clients, and their leverage brings in the profits. Depending on whether the associates bill 2,200 or 2,500 hours per year, four-to-one leverage yields each partner between $320,000 and $560,000, over and above what the partner brings in through her own billings.

Of course, the profits per partner depend on maintaining a high associate-to-partner ratio. That gives the firm a strong inducement to make it very hard to become a partner. The higher the firm’s leverage, the more intense the competition between the associates for partnership. Profits per partner and competitiveness among associates rise and fall together.

The easiest way for associates to compete with each other is by lengthening their work-day, in an arms race that challenges what the human body and soul can bear. Ten hours a day, six days a week? Why not twelve hours, seven days a week? Why not fourteen? This is great for the partners, who (remember) net $200 for each additional hour an associate bills. Furthermore, if the associate is doing more demanding work, for wealthier clients, the firm can bill the associate’s time at a higher rate than the baseline of $200 per hour.

However, the quality of the associate’s work will not necessarily enhance her chances to make partner, because regardless of the absolute quality of the work, the partnership needs to winnow out associates in order to maintain the leverage on which per-partner profits depend. In a law firm leveraged four-to-one, three out of every four associates must fail to make partner, regardless of their lawyerly excellence in absolute terms. (All of this was explained years ago in Marc Galanter’s and Thomas Palay’s path-breaking Tournament of Lawyers.)

The result is just what Karl Marx predicts: the "capitalist" (here, the law partner) has an overwhelming incentive to intensify and lengthen the associate’s work day, and put more competitive stress on the associate.

No wonder associates bail out as soon as they can. Yet this has bad effects on the law firms: after all, they invest a lot of money training associates, and the high turnover rate is wasteful in both human and economic terms. The firms are hemorrhaging young people. (There’s a hemorrhage at the other end as well, as large firms force many partners out in their early 50s because their billing rate is too high, and the firm would rather dump them than adjust their rate downward, due to the pressure that would put on its entire rate-structure. But that’s another story for another post.) In human terms, higher turnover means lower interpersonal loyalty at large firms, which goes with lower collegiality, greater alienation, greater temptation to commodify intrafirm professional relationships, more emphasis on the bottom line, greater incentive to intensify and lengthen associate’s work days, and – therefore – higher turnover. It’s a vicious spiral, and thoughtful law partners have lamented it for years without having any idea how to stop it.

Couldn't the partners simply settle for less money? The problem is that then higher-paying firms will lure away the firm's stars -- their rainmakers and the rainmakers' clients -- and the firm is likely to collapse. Marx understood this, too; he thought it was fatuous to suppose that exploitation, together with the intensification and lengthening of the work day, could be ended if only individual capitalists were "less greedy." Few non-Marxist economists would disagree.

Furthermore, as Galanter and Palay explain, there is another good reason why firms emphasize profits over other values. Suppose that every lawyer in a firm is asked to rank-order the top ten things he or she values about the job. Some emphasize the money; some, interesting clients; some, the opportunity for pro bono; some, flexible and humane hours; some, an interesting practice area; some, the opportunity to live abroad; some, avoiding lots of travel; some, great colleagues. And so on. Money might not be at the top of the list for many lawyers in the firm (maybe not for any); but money will almost always be among the top three or four. More importantly, money may be the only thing that is in the top three for every single lawyer in the firm. That makes money the easiest thing to coordinate on. The larger the firm, the harder it is to customize a package for each lawyer, and the more likely it is that every lawyer will confront more or less the same package. You will simply not be offered the option of less money and more collegiality; the high-money-low-other-stuff package becomes the off-the-rack choice for everyone.

The big, unanswered question: how long can a system with these characteristics maintain itself? Indefinitely? Of course, Marx would have said that the point isn't to analyze the world; the point is to change it.

Migration to New Blogger Complete

JB

We've switched the blog over to New Blogger overnight. Please bear with us as we try to deal with all the bugs that will inevitably ensue. If people have experiences (good or bad) with New Blogger, feel free to discuss them (and offer advice) in the comments section.

A special note to the members of our Balkinization community-- the folks who regularly write all the comments to the various postings: The New Blogger software may require you to get your own Google accounts (if you have not already done so).


Friday, February 02, 2007

State Laws Aimed at Bloggers? Not So Fast

JB

Several states are considering laws that would hold bloggers responsible for defamatory statements made on their websites, including notice-and-take-down obligations, National Journal's Beltway Blogroll reports.

Most of these attempts may be doomed to failure. The are probably preempted by Section 230 of the 1996 Telecommunications Act, which provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." It also provides that "Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."

Consider the most likely proposals-- notice and take down rules. These would treat defamation in much the same way that intellectual property issues are treated by section 512 of the Digital Millennium Copyright Act. Under these schemes, once the blogger is notified that content on the site posted by someone else is defamatory, the blogger has a certain number of days to remove the content or face criminal prosecution or civil liability for the injury caused by the defamation. There is a pretty good argument that such statutes would in effect treat the blogger as the publisher or speaker of the defamatory content, because they would hold the blogger responsible for the continued presence of the defamatory content on the website. If that is so, then the notice and take down provision is preempted by federal law.

Note that there is nothing wrong with holding bloggers responsible for defamatory content that they themselves produce, as long as the states' rules are consistent with the constitutional rules of New York Times v. Sullivan and later cases. Section 230 only affects state laws that try to hold a blogger liable for content posted by someone else.

Money can't buy you love, but it might buy you science

JB

The Guardian online reports that the American Enterprise Institute, funded by a generous grant from Exxon and from the Mobil Oil Corporation, has begun offering $10,000 to scientists who are willing to write essays that call into question the findings on a recently released UN report on global warming.
Letters sent by the American Enterprise Institute (AEI), an ExxonMobil-funded thinktank with close links to the Bush administration, offered the payments for articles that emphasise the shortcomings of a report from the UN's Intergovernmental Panel on Climate Change (IPCC). Travel expenses and additional payments were also offered.

Who can blame the AEI, really? What is free enterprise but the ability of individuals and organizations to offer and to supply services that other individuals and organizations might want? Businesses need scientific credibility so that they can better rebut the conclusions of scientists that undermine their favored business models. The AEI, a think tank, which, as its name implies, is not entirely averse to the promotion of American business interests, is happy to spread some cash around in search of worthy scientists who will say what Exxon and Mobil already believe. It's a simple case of demand meeting supply.

I know what you are probably thinking: This is not simply the meeting of supply and demand; it is a thinly veiled attempt to undermine the integrity of professional and scientific norms. Professionalism, you will say, is distinct from mere market clearing behavior. It is not directed at the satisfaction of revealed preferences in a market; rather it seeks truth according to recognized standards of professional inquiry; it promotes professional integrity over profit maximization.

Perhaps all that is so. But who is to say that there are not scientists out there who would find an extra $10,000 completely consistent with their understandings of professional integrity? Perhaps there is a body of scientists who believe that the threat of global warming is not very serious or is not due to human economic activity, and perhaps they have been heretofore silenced by the overwhelming consensus of the scientific community to the contrary. Naturally, they are a bit shy about expressing their views. An extra 10,000 dollars, at the margin, might be just enough to overcome their natural diffidence.

Understood in this way, the AEI is not undermining science or professional integrity. Far from it. Rather, the AEI is engaged in an exercise in scientific empowerment, the sort of scientific empowerment that also supports the interests and positions of the corporations that contribute to the American Enterprise Institute. It's a win-win proposition. Who among us can be against such a positive-sum game?

Interview on Blogging and Legal Scholarship with Yale Law Report

JB

I did this interview about blogging with the Yale Law Report on November 8th, 2006. A shorter version will appear in the magazine sometime in the spring. In the meantime, here's the full version. I've written a more scholarly essay on blogging and legal scholarship here, addressing many of the same themes.

* * * * * *

Balkin Talks Blogs

Online, Knight Professor of Constitutional Law and the First Amendment Jack M. Balkin is best known for the blog Balkinization, a political and legal blog that he founded and maintains. Professor Balkin recently sat down for a Q & A with the Yale Law Report to give his thoughts on the legal blogosphere and how it's changing the nature of legal discussion and legal education.

YLR: It seems there are several different models as far as the tone and perspective and subjects that legal blogs tackle. What blogs are out there and how do they differ from one another?

Balkin: There are now dozens if not hundreds of legal blogs. Let me mention just a few that illustrate the various types. The Volokh Conspiracy [http://volokh.com/], which was started by Eugene Volokh at UCLA, and Balkinization [http://balkin.blogspot.com/], which I started, are group blogs. The Volokh Conspiracy has a conservative to libertarian perspective and about ten or so regular contributors. It discusses law and public policy at a very sophisticated level, but it also has discussions of popular culture; it has puzzle contests and jokes, and it’s great fun. It’s an example of how blogging transcends existing categories and expectations. My blog, Balkinization, has a mostly liberal perspective with around five or six regular contributors. It offers fairly serious discussions of constitutional law, legal theory, and politics. That was deliberate; we decided that we wanted a particular voice and a particular style, so we don’t have much in the way of gossip or discussions of popular culture. People come to us when they want to read academic views about law and politics at a fairly high level.

The Becker-Posner blog [http://www.becker-posner-blog.com/] is a joint blog by Gary Becker and Richard Posner. Once a week, they pick a topic, and one writes a short essay, and the other responds. People write comments on the blog, and they respond to them. It’s a fairly structured approach to the medium.

Althouse [http://althouse.blogspot.com/], by contrast, is run by a single person, Ann Althouse, a law professor at Wisconsin who talks about law and politics in a very personal way. She’s a moderate to conservative pundit who tells you how she feels about things—including popular culture-- and she offers some legal analysis in the bargain. Instapundit [http://www.instapundit.com/] is run by Glenn Reynolds, who teaches at the University of Tennessee Law School (he’s also a YLS alum). He has one of the oldest blogs (he started in 2001) and one of the most widely read, with millions of readers. As the name implies, his blog is pure punditry, from a conservative to libertarian perspective. He offers short snippets—sometimes just a single sentence-- of his views on an enormous number of different topics, and he links to stories and articles that he finds interesting or that his readers send to him. The tone is very different than say, Becker-Posner and Balkinization.

Legal Theory Blog [http://lsolum.blogspot.com/] is a one man operation run by Larry Solum at Illinois. It is really a tour de force and it must take an enormous amount of work. It’s strictly devoted to academics. Any time a new paper comes out on SSRN (the Social Science Research Network—an online depository for drafts of new scholarship) that Larry thinks is interesting, he’ll republish the abstract and provide a link. He’ll tell you about all the new academic books that have recently been published; he will tell you about academic conferences that are coming up; he gives you basic introductions to important legal and philosophical concepts, he suggests reading lists for particular topics; in short, he’s a one-man clearinghouse for the academic world. It’s simply amazing what he is able to do by himself, and he performs an invaluable service.

The Georgetown [http://gulcfac.typepad.com/georgetown_university_law/] and Chicago Law [http://uchicagolaw.typepad.com/] blogs are devoted to serious discussion of academic issues along the lines of Balkinization. They consist of law faculty at particular law schools who have decided to blog together.

The postings on these blogs, generally speaking, are short. On Balkinization, we have adopted a certain style— we do mostly free standing essays, so our postings can be quite long, up to 5,000 words, but usually they average about 1,000 words to 2,000 words, about twice as long as the average op-ed in a newspaper. On the other hand, on Althouse or Instapundit, the posts can be really short, perhaps a few sentences or a single paragraph.

Many legal blogs now specialize on particular fields like election law, disability law, corporate law, and tax law. Brian Leiter [http://leiterreports.typepad.com/] at the University of Texas runs Leiter’s Law School Reports, a blog that’s basically professional gossip about who’s getting offers and visits and who’s moving where.

Lawyers outside of the legal academy also blog, and they make some very valuable contributions. How Appealing [http://howappealing.law.com/] is run by Howard Bashman, who’s a litigator in Philadelphia. He tells you everything that’s happening in the world of appellate litigation. He links to op-eds on legal topics in the major newspapers, to recent decisions in the circuit courts and the Supreme Court, and to a wide range of legal commentary in the blogosphere. I should also mention SCOTUS Blog [http://www.scotusblog.com/movabletype/], which covers Supreme Court litigation and commentary and offers very sophisticated analysis—from the litigator’s perspective-- of what the Court is doing and why.

If you are looking for legal gossip outside the legal academy, there’s Above the Law [http://www.abovethelaw.com/], run by YLS alum David Lat, who began his blogging career under the pseudonym Article III Groupie at a blog called Underneath Their Robes [http://underneaththeirrobes.blogs.com/]. These two blogs provide entertaining commentary and bits of gossip about lawyers, judges and clerks.

Blogging is only one aspect of how legal writing is changing. You can’t really understand how online media affect traditional legal scholarship without taking into account the Social Science Research Network (SSRN) and the proliferation of law professors’ personal websites. When I write a draft of a new article, I put a copy on my website, [www.balkin.com] and a copy on SSRN. In effect, I’ve published the draft. This transforms the pace of legal scholarship. People can read the new drafts as soon as I am finished with them. The final versions may appear in law reviews months or even years later, but why wait for the law reviews when you can publish (and read) scholarship immediately on SSRN? Moreover, intellectual arbitrageurs like Larry Solum will tell you when the new pieces come out and how they fit into the existing scholarly conversation.

YLR: How is legal blogging changing legal discussion and legal education?

Balkin: Blogging changes the relationship between law professors and their audiences because professors can reach more people. It changes the relationship between law professors and journalists because law professors don’t need journalists to get their ideas out to the broader public; conversely, blogging makes it easier for journalists to find the right experts to interview. It changes the timing and pace of legal scholarship because law professors can talk about cases the day they come down, driving the discussion forward in a very short time rather than through a series of law review articles that may take years to appear. Just as the Internet collapses the news cycle, it also collapses the publication and discussion cycle. It produces a type of legal writing that is more journalistic, more personal, and more driven by current events.

Compared with traditional legal scholarship, blogging produces a different combination of analysis and opinion. The conversation is more informal, and it progresses very quickly. People also use sources differently: they cite to supporting information or authorities by linking to them, so that you can see the evidence for yourself.

This morning [November 8th, 2006] I wrote a post on the South Dakota law banning most types of abortion, which was defeated in a popular referendum. I used the referendum to discuss a recent article written by my colleague Reva Siegel in the online version of American Prospect, as well as an article she hasn’t officially published yet, providing links to both. In this example I’m not only talking about the news, I’m connecting it to other political commentary and to the latest legal scholarship. It’s a kind of legal discussion we haven’t seen much of before.

This is the first generation of law students who are going to law school after the rise of the blogosphere. If you went to law school a few years ago, you were totally immersed in the experience of a single law school, and your professors (and the law library) were the main sources of expertise. Now law students can hear legal opinions from law professors and their fellow students around the country-- and around the world-- on almost any topic they desire. The blogosphere becomes part of your legal education. That didn’t really exist before.

Law students are not merely consumers of these blogs, they’re also producers. There are at least a dozen students currently writing blogs at Yale Law School. At other law schools, there are probably hundreds of student-run blogs. Some of them talk about the experience of being a law student; others offer legal and political commentary, and still others combine legal analysis with discussions of their hobbies, interests, and personal lives. Student-edited law reviews have been transformed by online legal publishing. Most law reviews have an online presence, many publish articles simultaneously in print and online versions, and several have started online publications that are hybrids between traditional journals and blogs. Blogs are an incredibly creative medium; there’s an enormous number of things you can do with them, and they are going to have all sorts of interesting and unexpected effects on legal culture.

YLR: When did you start writing your blog?

Balkin: January, 2003.

YLR: Why did you start?

I run the Information Society Project here at Yale and I’m interested in the relationship between the Internet, democracy and free speech. In the fall of 2002 we held an ISP conference on what was then the new phenomenon of blogging—one of the first academic conferences, in fact. We invited Glenn Reynolds from Instapundit, Jeff Jarvis from Buzzmachine [http://www.buzzmachine.com/]; Josh Marshall from Talking Points Memo [http://talkingpointsmemo.com/], and several other prominent bloggers. I was fascinated by the legal issues that blogging raised, but even more fascinated by how it was changing the public sphere and political discussion.

A few months later I had dinner with Glenn Reynolds and Eugene Volokh (who began his blog in April 2002). Glenn said, “Jack, you’d be good at this; you should start your own blog.” And so I did, the very next week.

Blogging is both a way of participating in the Internet and a way of learning about it. I have learned more about how the Internet affects public discourse from being a blogger than I would ever have learned from reading what other people had to say about it. There’s no substitute for participating in the medium if you want to understand what the medium does: how it affects your relationships with other people; how it affects the work and the status of law academics; how it affects the dissemination of legal ideas throughout society; how it changes the law professor’s calling; how it changes the nature of legal education. It’s much easier to see what’s happening from a blogger’s perspective.

YLR: People pull a lot of information from your blog.

Balkin: It’s completely changed my relationship with the mass media. The mass media used to have a small number of law professors they’d regularly call on the phone; these law professors always had to be ready to talk and to talk on anything, even if it wasn’t in their field of expertise. The blogosphere allows people to advertise their expertise by showing what they can do; they put their views out there for everyone to see. If you’re a journalist and you want to know about the Military Commissions Act, you know that you can talk to Marty Lederman or me, or better yet you just read our blog posts; they’ll tell you everything we have to say about the Military Commissions Act.

This not only makes it easier for journalists to find expert opinion, but it allows expert opinion to route around traditional media gatekeepers and reach the public directly. Several sites have sprung up that help people do this. Memeorandum [http://www.memeorandum.com/] collects links to major news stories and matches them with links to prominent blogs that cover those stories and comment on them. Similarly, Technorati [http://www.technorati.com/] lets you find out what people are saying about a particular topic in the blogosphere.

The blogosphere not only routes around the traditional mass media, it also gloms onto it, commenting on it and criticizing it. Conversely, the traditional mass media increasingly turn to the blogosphere for fresh content, and it’s no accident that newspapers and magazines are becoming more interactive in their online versions and even starting their own blogs. The shape and structure of the public sphere is being transformed by the blogosphere.

YLR: How often do you post to Balkinization? What inspires you to post?

Balkin: I tend to be driven by what’s in the morning news, by what I’m working on in my scholarship, and by what other bloggers and legal scholars are talking about. Take my post on the South Dakota abortion ban. I’d been following the South Dakota referendum, first, because it’s in the morning papers, second, because I’m working on a book on Roe v. Wade, and third, because Reva Siegel is a colleague and friend of mine who’s been working on similar issues. It’s a convergence of all three things.

Balkinization did a series of posts on the controversies about torture and the NSA domestic surveillance program, as well as a series of posts on the Military Commissions Act as it was being drafted. Marty Lederman and I got very involved in these issues as a natural outgrowth of our interest in the effect of 9/11 and the War on Terror on civil liberties. Marty is a former OLC lawyer, and both of us are part of an academic listserv on torture issues that features some of the most interesting people talking about these topics. And the news kept generating legal issues for us to talk about. After a while, we found ourselves caught up in the cycle of events and we tried to give a legal analysis of what was happening more or less in real time.

YLR: This never would have happened so quickly in the past.

Balkin: After a while, people began to send us drafts of the military commissions bill as they were being marked up in Congress. Things were changing in the bill at a fairly rapid pace, and people wanted to know what was actually going on. We tried to explain how the drafts were changing, where the problems were, what parts of the bill to focus on, what was a genuine civil liberties problem and what was not. Legal scholarship could never do this before because you could never do on-the-spot analysis.

YLR: Some of the YLS faculty blog on your site, right?

Balkin: Ian Ayres is a regular contributor. I invite all YLS faculty to write on the blog, and several have, including Bruce Ackerman, Bob Gordon, Oona Hathaway, Dan Kahan and Peter Schuck. Every year I send out a note to the Yale Law School faculty reminding them that the blog is available to them and inviting them to write for it. Most of our colleagues still prefer to express themselves through forms of traditional scholarship: law reviews and books. A smaller number have adapted to the world of the op-ed. Most faculty don’t yet see how their work could usefully be articulated in a blog. That will take some time. My suspicion is that the younger you are, the easier it will be for you to adapt yourself to this format. There are many exceptions to the rule, of course. Basically, I think people stick with what they know how to do well, and people who have succeeded very well at traditional scholarship will continue to want to do that.

The most successful blogs tend to be run by younger law professors who aren’t necessarily at the top-ten schools. That’s because if you’re an established professor at a top-ten school, you are already probably getting significant positive reinforcement for what you are doing. But if you’re a law professor who’s trying to establish a name for yourself, you quite understandably feel that not enough people are paying attention to what you’re saying. The blogosphere is a wonderful way for you to put your ideas out there and gain an audience for ideas you think are valuable and worthwhile. Blogging democratizes legal commentary; it publicizes the scholarship and the expertise of a large number of law professors who would not have gotten a voice before.

YLR: In the past you said that blogs help break down partisan divisions. Do you think that’s still true?

Balkin: Blogs simultaneously increase and decrease partisanship. On the one hand, they make it easier for people to find views that they already agree with. If you are a conservative, you can find conservative blogs to read; if you are a liberal you can find liberal blogs. Blogs aren’t unique in this respect; you can also easily find conservative or liberal books that conform to your views, as well as newspapers, television programs and talk radio. But blogs—and the Web more generally-- have this important difference: the way a blog cites to something is by linking to it. When people criticize each other, they’re always linking to things they criticize, and this creates the possibility of being exposed to ideas and opinions you wouldn’t otherwise have been exposed to.

Search engines—which are the primary way most people navigate the Internet-- have a related effect. They can take you places-- and confront you with pages-- that are in some sense relevant to the subject you are searching for but that may not take the viewpoint you expected or that you support. As a medium, the World Wide Web encourages surfing and exploration and serendipitous discovery. Hence blogs—and the World Wide Web more generally—both accentuate and ameliorate polarization.

People tend to focus on the first effect, and indeed, they tend to blame polarization on the Internet to the exclusion of other media like talk radio, which, I think, are probably are more responsible. But people don’t recognize that blogs have a second, ameliorating effect on political discourse. They don’t yet realize that the Internet may be actually be better than traditional mass media in this respect, especially because contemporary marketing techniques increasingly seek out segmented audiences for books, television programs and radio talk shows. People point to general interest newspapers as the key remaining method for exposing people to a wide variety of views and opinions, but these newspapers are also available on the Web, and indeed, increasing numbers of young people read them only on the Web. Moreover, the Web versions of major newspapers increasingly allow interactivity and links to opinions from many different perspectives that their print versions do not. Finally, reading the news using aggregator sites like Memeorandum and Technorati puts different views in front of you in ways that traditional media do not.

YLR: How would you define the success of your blog?

Balkin: We consider our blog successful if we can provide serious commentary on legal issues, and if people who want that commentary are getting it. Our audience tends to include lawyers, law professors, law students, judges, judicial clerks, reporters who cover the legal beat, staffers on Capitol Hill, policy people and people at think tanks. We’re happy if they read us and take us seriously. If the goal of the blog were to attract everybody, we’d have to do a very different blog. It would have to be much more aimed at popular culture or political punditry. Even so, we’ve been surprised at how many of our regular readers don’t fall into any of the categories I just mentioned. They’re ordinary citizens who are interested in the law and civil rights, and they just want to know what’s going on. They read the blog faithfully, and we get emails from them all the time.

YLR: How many readers do you average?

Balkin: For some time we averaged about 60,000 readers per month, but starting in September 2006, it jumped up to well over 100,000. That was partly because of our coverage of the military commissions bill.

Balkinization attracts a fair number of readers, but it’s by no means among the most popular blogs. We’ve been averaging 80,000 readers a month recently, but the most popular blogs will get that traffic in a single day.

Blog readership, like many other features of the Internet, is distributed according to what mathematicians call a power law— or more precisely, a related type of distribution called lognormal. The most popular blog might get an enormous number of readers—in the millions—but the readership for the second-most popular blog might be only half that. The readership drops off very quickly as you go down the list. By the time you get to the hundredth most popular blog, the total readership is far smaller, but the difference between the hundredth and the hundred and first isn’t very great. If you plot the rank order against the number of readers on a graph, the data points swoop down quickly and then level out, producing the now-famous “long tail” of blogs that receive fairly small but consistent numbers of readers. That distribution, I should add, is quite important in generating and preserving both commonality of experience and enormous diversity of content on the Internet. Many people read the most popular blogs and visit the most linked to Internet sites, which, in turn, often link to less well-known sites and advertise and drive traffic to them. Conversely, the long tail of the distribution means that even the most specialized or unique perspectives can find a niche of loyal readers. My colleague Yochai Benkler’s new book, The Wealth of Networks, gives the best account of this phenomenon and its consequences for democracy.

YLR: What happens when people post hastily? When they regret what they’ve written?

Balkin: Good blogging requires a certain kind of skill and discipline. Many law professors are perfectionists, and they will not publish anything unless they’ve gone over it dozens of times. That doesn’t really work here. To blog you must develop the ability to articulate your thoughts relatively quickly and briefly, and you must have the courage to publish them. The medium lets you correct things later on, but you have to be willing to admit when you were wrong.

YLR: How long does an average post take you?

Balkin: It depends. The story I did on abortion this morning took about an hour to write and revise. I once wrote a very long post on Dred Scott and Kelo, which is about 5,000 words, and it took me a week or more to work on it. It’s really a law review article; I just never submitted it to a law review. Marty Lederman has written substantial articles on torture or military commissions where he’s taken days to hone the argument to get it just right, because he’s making some very complicated legal analyses. So, the posts can take anywhere from an hour to a week or so.

YLR: Do some posts end up as law review articles?

Balkin: Sure. A lot of things I post eventually wind up as parts of law review articles. I’ve been working on issues of abortion law, constitutional change and constitutional interpretation for several years now. Many posts are on these topics. A series of posts on the national surveillance state worked their way into an article that Sandy Levinson and I just published in Fordham, as well as a lecture that I recently gave at the University of Minnesota, which will be published next year. Blogging serves as a scratch pad to test out new ideas that can be polished and later published as part of my “official” scholarship.

YLR: Are you ever afraid that if you post an idea, someone will take your idea and run with it?

Balkin: Actually, the reverse is more like it. Stating an idea in the blogosphere is a way of staking a claim to it, because once you’ve blogged it, you’ve published it, and you can prove when you did it. Not only that, but other people can cite to your argument. Law reviews increasingly cite to blog posts just as they cite to news articles or op-eds. Blogging lets you tell the world that you are working on something new and here is the initial formulation.

Posting ideas on your blog is also a form of advertising, both for your ideas and for the fact that you have them. I should note that Balkinization doesn’t take commercial advertisements. Some blogs do, but we don’t. However, we do have one kind of advertising—we advertise our academic publications and our ideas. The right hand column of the blog has pictures of recent books by people who write for the blog, with links to make it easy to buy the book. Academics often talk about their work on their blogs, as well as the conferences they are attending and the speeches they are giving. Whenever I post a draft of a new article on SSRN, I usually try to write a blog post about it; when I publish a new book, I try to talk about the book. I encourage the people who write for the blog to do that as well.

YLR: Do you have anyone who does technical work?

Balkin: I do most of the technical work, but it’s not very difficult. Blogger (a hosting company now owned by Google) provides the software we use; it takes a bit of effort to figure out how to design the blog and add features to it. Most of my fellow bloggers don’t worry about that too much; they use very basic features and leave the other problems to me. I’m in charge of making sure that the page looks clean and well organized, but it’s not particularly difficult programming; it requires basic knowledge of how to code web pages but not much more than that.

Blogging was designed to be incredibly easy to do. That’s its great democratic advantage. You can start your own blog without knowing how to design a web page. In fact, people can write for my blog without knowing anything about computers or computer programming.

YLR: How about the evolution of the blog? Where is it going?

Balkin: Well for one thing there will probably be more video. We’ve seen the beginnings of this with YouTube. You can now put videos from YouTube on your blogs, and eventually more and more people will create their own videos and put them on their blogs. Podcasting—which essentially involves blogging using audio files—has already existed for some time. The future of the blog is multimedia. Text won’t go away—it will just be supplemented.

In the legal academy, you will get an increasing integration between blogs and legal scholarship, between blogs and what you read in law reviews. As I mentioned, law reviews are already experimenting with blogs as adjuncts to their online presence. There will be more connections between blogs and SSRN and other online publications. More and more legal scholarship will occur in blog formats, or link to blogs, or cite to blogs, and the distinctions between blogging and other forms of legal scholarship will begin to blur, even if some important differences remain. As this happens, you’ll see the public persona of law professors migrate to their blogs.

All this will take time. As I mentioned before, most law professors still don’t view blogging or online publication as particularly important to what they do; indeed, they may see it as distraction. New media will take hold more quickly among younger professors, and among students, in places where people are trying to gain audiences and give voice to their ideas. Eventually the importance of online media will become clear and the practice will migrate throughout the legal academy. In the long run, I expect, blogging will be viewed not as a new form of scholarship so much as a sort of hybrid of scholarship, teaching, and service. That’s the way I tend to think of it: I’m doing a public service-- reaching new audiences both inside and outside law schools, talking about legal ideas and conveying them to a mass audience. Over time online media will change our notion of what a law professor is, what the law professor’s vocation is and who his or her audience is.

But don’t expect all this to happen overnight. The culture of legal institutions changes slowly. Most people who currently serve as gatekeepers for status, jobs and opportunities in American law schools got where they are the old-fashioned way. They are not likely to embrace new-fangled media or methods unless it becomes clear to them that they provide real advantages. It may take a generation for law professors to figure out how online media transform what we do for a living.

Thursday, February 01, 2007

A Pragmatic View of Natural Law

Brian Tamanaha

One of the themes in my recent book, Law as a Means to an End (sidebar), centers on the adverse consequences of the gradual loss of belief in natural law over the past several centuries. Many in the founding generation and throughout the nineteenth century accepted some version of natural law or natural principles. It was widely thought that these principles were built into the common law and had a background role in the constitutional arrangement. But we have not thought about the law in these terms for a long time. Now the Constitution and the law are seen as positive declarations of rules that we can alter in any way we desire, and that we can use to serve whatever ends we desire. Natural law has no recognized place in this scheme (other than a residual sense in the Bill of Rights). Although law was once thought to have a built in core of principles, it is now seen as an empty vessel.

The book elaborates on the worrisome implications of this shift, but I do not advocate a return to natural law because, in my view, society, culture, the economy, politics, and law have changed so much that those long lost views cannot and should not be recovered.

I should also admit that I don’t believe in natural law, at least not in the traditional sense of timeless, universal, objective fundamental principles. Reading a lot of John Dewey, Richard Rorty, and other pragmatists has made it impossible for me. Pragmatists assert that there are no such things as timeless, universal, absolute, objective principles. These are human ideas that arise, take hold, and are given meaning in specific social-cultural contexts. Appending the label “natural law”—or today: “human rights”—and calling them objective and universal is a way of according them emphasis and a higher status, but they are socially invented ways of speaking about socially constructed norms.

It must be emphasized that a pragmatist can deny that “natural principles” are objective, yet still recognize that many people believe that they are objective and universal and that this belief can have positive social consequences (as William James argued with respect to religious beliefs). From a pragmatic perspective, these beliefs are useful and valuable to that extent.

A pragmatist will also insist, however, that we must consider the negative consequences of these beliefs. Dewey wrote that “one of the chief offices of the idea of [natural law and justice] in political and judicial practice has been to consecrate the existent state of affairs, whatever its distribution of advantages and disadvantages, of benefits and losses; and to idealize, rationalize, moralize, the physically given.” We must remember that bad things have been done, and will be done, in the name of natural law or natural rights (this prudential concern is the core of my article on the contemporary relevance of legal positivism).

Opponents castigate pragmatists for being moral relativists. The charge seems to fit the pragmatists, except for this consideration: criticizing someone as a “relativist” is meaningful only if it is possible to be a non-relativist.

These critics—let’s call them “objectivists”—deny that their position is a relativist one because objective natural principles really do exist. When making this claim, objectivists are saying not only that they believe that these principles exist, but more so that they do in fact exist.

The pragmatist will respond that, while the belief of objectivists in natural principles is sincere and has consequences (when they act on this belief), the claim itself is wrong—there are no such things as universal, objective, absolute principles. The referent of the claim does not exist. If it is meant by the objectivist as a factual claim, it is false. If it is a metaphysical claim, then it is a myth or fiction on a par with belief in the existence of ghosts.

Assuming these responses are correct (a big assumption, which cannot be discussed here), the charge of relativism senseless. It has no bite because objectivists are in exactly the same position as pragmatists—they too have no objective, universal grounding for their principles. One could say that we all are relativists—and the objectivists just don't know it—but a better understanding is that the term relativism is misleading and inapt because it posits an alternative position that is not available.

These passages from Isaiah Berlin (“Subjective Versus Objective Ethics”) help explain this view:

"The fallacy of this position [denouncing Hume for subverting moral order by arguing that "objective" truths applies to logical and empirical realms, but not normative] consists in the tacit assumption that ethics, which is, alas, subjective, might in principle have been objective, although it has been shown by Hume's cold reasoning not to be so in fact. But if Hume is right...then he is in effect implying (though he never himself saw this clearly enough) that ethical statements are in principle different in the way they are used from logical or descriptive statements, and the distinction between subjective and objective may turn out to not apply to them at all."

Berlin goes on to indicate his agreement:

"Can a world be conceived in which normative statements acquired 'objective status'? It is only when we realize that this is a meaningless suggestion--that the note of regret which the word 'subjective' often expresses springs from what has been called a pseudo-lament,' because it deplores the absence not of something which could be present..., but of something whose presence cannot be conceived, of which to say that it is present is to utter a meaningless phrase--it is only then that we grasp the unsuitability of such an epithet as 'subjective' when applied to ethical, political or other normative disciplines."

A reader might accept these passages, yet not be able to shake the despondent feeling that we have been thrown into relativism. Yes, but that’s because we previously thought (mistakenly) that we were not in that position. A better way of describing matters is that we are now “disappointed objectivists” rather than “relativists.”

The good news is that a pragmatist will insist that we can still talk about right and wrong—about good and valuable principles—without making apologies. Shorn of the former objectivist language and its supportive belief structures, these kinds of statements remain what they have always been: normative claims invoked in discourse. Granted, they are no longer bolstered by the former objectivist beliefs, but the bottom line has not changed: One must still persuade an interlocutor in any normative exchange that one’s normative claim should be accepted. Even in the old days, when the arguments were couched in terms of natural principles, there was plentiful disagreement on moral and legal claims.

Does the pragmatic view leave open the possibility of constructing a natural law position? Maybe. It would have to be brought down to earth, empirically grounded, and argued for in pragmatic terms. H.L.A. Hart argued that there is a minimum content of “natural law”—that is, universally applicable—based upon the core requirements necessary for humans to live together peaceably in a social group. A pragmatist would find this kind of argument unobjectionable. Another possible approach, gaining attention of late, is to build upon some form of “moral naturalism,” which argues that moral norms are natural facts based upon our existence. An important new article on this subject is Larry Solum’s “Natural Justice,” which sets out a detailed argument about the implications of natural justice for judging. The pragmatist in me is concerned about precisely what is claimed by invoking the term “natural” here (other than identifying its grounding in us), but I find the specifics of his account of virtue in judging attractive and convincing.

To return to a point I made at the outset—natural law principles of the past are beyond recovery. Nostalgia is pointless, and revivalist movements can be reactionary precisely because they require us to suppress much that has changed. We can construct a sound view of integrity in law that is realistic and comports with who we are now. There is no option but to build with the pieces that we have at hand.

Wednesday, January 31, 2007

Audio of NSA Oral Argument

Marty Lederman

The U.S. Court of Appeals has made available an audio recording of today's oral argument in the NSA electronic surveillance case, at this link. The file, however, appears to be enormous, and my computer is telling me it will take hours to download. (If anyone has ideas on expediting the process, please let me know.)

[UPDATE: It appears that it is now available as an mp3 file, which should "only" take an hour or so to download.]

[QUASI-SUBSTANTIVE UPDATE: It was not a very active bench. Judge Gibbons is obviously very interested in the standing question, which was the subject of at least half the argument. No very telling clues as to the judges' thoughts on the merits or the state secrets privilege, except that when Greg Garre suggested that the government's statutory argument would not require a finding that the AUMF has implicitly repealed FISA, Judge Gilman indicated that he disagreed. Judge Gilman is correct -- the government's AUMF argument would, indeed, require a finding that the AUMF has implicitly repealed the "exclusive means" provision of FISA. See pages 4-5 of this letter.]

A Slice of Information About Corporate Law Firms and Legal Academia

Brian Tamanaha

The National Law Journal recently (Jan. 15, 2007) listed the ten law schools with the highest percentage of graduates hired by the top 250 firms in 2006:

Columbia Law School (69.6%)
University of Pennsylvania (68.2%)
University of Chicago (65.1%)
Harvard Law School (59.2%)
Duke Law School (58.8%)
NYU Law School (56.6%)
Cornell Law School (56.0%)
Stanford Law School (54.9%)
Univ. of Michigan (54.3%)
Univ. of Virginia (54.1%)

These numbers do not count graduates who work initially in judicial clerkships, so the actual percentage of graduates going to these firms is higher. [Yale was ranked 15th, with 46.8%, but many of its graduates enter clerkships.].

A similar table for non-elite law schools (outside the top 30 or so) would likely show that only 5% to 10% of graduates enter these firms, and for many schools the percentage is much lower.

How much do these new graduates earn, and how many hours do they work?

Several top New York law firms just announced an increase in the base pay for first year associates to $160,000, up from $145,000, and other firms indicated that they would match the increase.

A National Law Journal (Jan. 22, 2007) survey revealed that most top law firms paid year end bonuses in 2006 that ranged from $30,000 to $65,000. Several firms pegged bonuses to hours billed. For example, senior associates at DLA Piper who billed more than 2,500 hours could receive bonuses of up to $95,200. [An associate must work about 3,000 hours to bill 2,500 hours, at least for honest billing. Averaged over a period of 52 weeks, not allowing for vacations or holidays, that comes about 58 hours a week. Although 2,500 hours is extreme, it is not unusual for associates at these firms to bill upwards of 2,200 hours.]

First year associates at many top law firms this year will earn in excess of $175,000 (in base salary and bonus). Supreme Court Justices earn $184,400; Federal Court of Appeals Judges earn $159,100; Federal District Judges earn $150,000. Judges on the highest court in the State of New York earn $155,000.

Despite earning more than top judges, young associates at law firms complain that they are underpaid, citing the inhumane hours they are required to work, and the relatively modest sums they earn compared to the million (plus) dollars taken home by partners. Associates point out that 2006 was an excellent year for corporate law firms (with revenue up by 10% in some firms), and feel they should get more of the expanding pie. Partners don’t want to reduce their take, so firms are increasing the number of new hires--the top 250 firms now average 50 new hires each year--as the most direct way to generate additional revenue.

The result: A pyramidal structure in law firms with a large, wide base of young associates working 70 or so hours a week in offices with a thousand or more lawyers. Almost 80% of associates—4 out of 5—leave their firm within the first five years.

Some have argued that this system produces an irrational allocation of talent, time and money. Let’s assume that graduates from the top law schools (and top graduates from non-elite law schools) are the best and brightest in law. Yet much of the work assigned to associates in these firms, at least in the first few years, is mind-numbing drudgery—work that can be done by anyone who is smart and responsible (as many law graduates are). Firms hire top graduates because, as one partner put it: “Our clients expect us to have the highest quality, and they know it takes a competitive compensation.” A more cynical interpretation of what is going on is that law firms hire and churn through top (arguably overqualified) graduates to do mundane work mainly to justify the exorbitant fees firms charge their clients.

There are two obvious winners in this system: corporate lawyers and law schools.

Partners reap oodles of money (though a few resent that they earn less than bankers and CEOs). Associates are also winners—complaints aside, the money is hard to beat—but they pay a price for every dollar they take home.

Law schools are also winners. Tuition at elite private law schools is approaching $40,000. Add another $15,000 a year in expenses, and the cost of a law degree exceeds $150,000 (not counting opportunity cost). Students who borrow to cover their education pay much more. Despite this expense, getting a law degree still pays off handsomely for anyone in line for a corporate law job. For a $150,000 investment, a graduate can earn $800,000 to $900,000 in the first five years alone, and much more over time. Given this expected rate of return, it seems likely that tuition at elite institutions will continue to increase at a solid clip.

This way of thinking, however, forces graduates to take the corporate law firm route, at least for a few years after graduation, as a means to finance the cost of law school. Indeed, this factor probably already contributes to the high percentage of elite graduates currently going to corporate firms. Many students come into law school with different aspirations, and later decide to go to law firms to pay off their hefty loans. Loan forgiveness programs help alleviate some of this (only selected positions qualify), but the financial pressure is still formidable.

Beyond tuition, law schools benefit because many corporate lawyers donate generously to alma mater. The more they earn, the more they are able and willing to give. Law schools work on the gratitude, school pride, and competitive instincts of partners and associates to implore and induce them to contribute to endowments that, for the top schools, already total hundreds of millions of dollars (over a billion for several).

These are comfortable times for elite law schools and their faculties. Although professor pay is not known for private schools, a fair guess is that senior professors at elite law schools earn in the neighborhood of $250,000 (the figure given by Justice Breyer following an informal poll). A recent NLJ report revealed that a significant number of professors supplement their pay by handling cases or consulting on the side.

A few words can be said about the losers in this system.

Judges are not doing well. They do not work the insane hours of associates, but most work hard nonetheless, under trying circumstances. Many are highly accomplished. They play a central role within the system. When evaluated by just about any measure other than hours billed for corporate clients—merit, knowledge, value, experience—it is bizarre that leading judges earn less money than first year associates at corporate law firms.

Many students at non-elite law schools are not doing well. As indicated earlier, only the top 5% to 10% of graduates from non-elite schools obtain the choice corporate law jobs (with a much lower percentage at many schools). The remaining 95% of graduates will earn substantially less initially (many in the $50,000 to $70,000 range), and over their careers. These lawyers mainly serve individual clients or work in government positions. When adjusted for inflation, their pay has decreased in the last couple of decades (see Heinz, Urban Lawyers 2005), while loan payments have gone up.

Tuition increases at non-elite schools have kept pace with elite schools—lagging by a few thousand—so non-elite graduates pay almost the same amount for a law degree but have significantly lower expected earnings. Law school may still be a sound investment for these graduates, but not necessarily for those who had a solid earning potential before entering law school, and not for older students. There is another nasty twist. Many of the top students at non-elite schools—the ones with a decent chance to land corporate law jobs—get substantial scholarships (which schools use to lure highly credentialed students to boost their rankings), while those lower in the class often pay full price. As a result, the students who are likely to earn far less subsidize the education of the students who will earn a great deal more.

Non-elite law schools are in an uneasy situation. Driven by the rankings, they compete for students with scholarships. They compete to hire promising scholars, but lose out to the higher pay and more luxurious circumstances of the elite schools. Many of their students and graduates are unhappy when they realize that their job prospects are not as rosy as they had assumed coming in. Most of the graduates earn less and donate less to their schools, resulting in smaller endowments and heavy reliance on tuition for revenue. Non-elite law schools must raise tuition to compete in the rankings and keep up with top institutions, but earnings for graduates remain stagnant—an ominous combination of factors. Meanwhile, the gap between elite and non-elite widens as the former accumulate a huge resource advantage.

I don’t pretend to know what it all means for the future of the legal profession or legal academia, but one point is clear. A stark differentiation has developed in the legal profession, separating the corporate bar from everyone else, and this is matched by a correspondingly sharp differentiation of law schools. Think about it in loose sports terms: the top programs feed the major leagues, while everyone else feeds the minor leagues, with a few exceptions and relatively little movement across these two differentiated systems. Given this divide, it seems sensible to ask whether non-elite law schools ought to develop a different model of education that better matches the jobs and careers of their graduates.

An interesting natural experiment in the Senate: The Darryl Levinson thesis revisited

Sandy Levinson

There is an unusually interesting story in today's Washington Post, tellingly titled "For GOP, Discord in Dissent," on the growing tensions in the Senate with regard to expressing disapproval (or support) for Bush's escalation (or whatever you think it is). What I find most interesting are the following paragraphs:

Republican leaders had hoped to divide Senate opinion largely along party lines, to allow Bush to argue that any outright statement opposing his plan was
politically motivated partisanship. ...

Instead, rival measures continue to proliferate.... "Resolutions are flying like snowflakes around here," Specter said.

One group of ruminating Republicans is made up of the 20 GOP
senators who will face voters in 2008.... The Warner measure has attracted at
least three potentially vulnerable Republicans -- Sens. Susan Collins (Maine),
Norm Coleman (Minn.) and Gordon Smith (Ore.). Sen. Lamar Alexander (Tenn.), another Republican whose term will expire in two years, said he was speaking for many of his GOP colleagues in asserting, "I'm not persuaded that sending 21,500 troops into a civil war in Baghdad is a good idea, but I haven't found a resolution I can support."

So what we see is a wonderful natural experiment with regard to the two variables that Darryl (no relation) Levinson emphasizes as key to explaining the behavior of legislators of the president's own party (since it isn't any genuine concern for maintaining the institutional prerogatives of Congress, as Madison wrongly asserted): Their strong desire, on the one hand, to be good members of the party team, coupled with an equally strong desire to be re-elected. One can be certain that almost all of the Republicans (who besides Hagel?) would continue to act like sheep if Bush's numbers were substantially higher. What is interesting, of course, is that most Republicans (at least the ones not facing re-election) continue to rally round their guy. And, as I've indicated in earlier posts, it's equally interesting that Democrats, with the exception of Joe Lieberman, seem more united than ever before, presumably in part because that appears to be a good strategy for 2008. If Bush loses the support of enough members of his part to allow one of the "anti" resolutions (including the one supported by John Warner) to go through, then he will be even more miserable in his 720 remaining days in the White House, since the ultimate message of such a vote would be not only that they have lost faith in his policies (who hasn't?), but also that they no longer view him as possessing enough political capital to make life miserable for those who stray. It will also, I predict, doom the McCain campaign.

Were I advising Chuck Hagel, incidentally, I would be studying how to run for the presidency as an independent and looking for a Democrat who would make a good running mate on a "national unity, plain-speaking" ticket. 2008 could be an extraordinarily interesting political year.

Addendum: I also strongly recommend Fred Barbash's column in today's Post, "Why Would Congress Surrender?" It bewails Congress's "lassitude" with regard to seizures of ever-more-power by the Executive with regard to war. But Levinson provides a perfectly good answer to Barbash: Members of Congress just don't care that much about preserving institutional prerogatives, so it should be no surprise, even if it is a cause for lamentation, when members of the president's party acquiesce in claims of executive power or when they (like the opposition party) concentrate entirely on finding pork for their constituents in order to be re-elected. And, after all, the only resolutions with a chance of passage are "debating society" statements that "we wish to express our disapproval of the policy" rather than in fact to suggest that Congress is willing to take concrete action to stop it. Power goes to those who are willing to exercise it, as Dick Cheney knows so well. Few members of Congress actually are interested in exercising Congress's powers with regard to waging war.

Tuesday, January 30, 2007

Congress's War Powers

Marty Lederman

In several recent posts, I have written about Congress's power to enact legislation to affect the prosecution of the Iraq War. See here, here, here, here and here.

I thought it worth adding that I joined 22 other constitutional law professors in signing this letter to congressional leaders, in which we contend that the Constitution contemplates a robust role for Congress in defining the parameters of armed conflict.

In addition, Balkinization readers may want to take a look at the excellent testimony of two of my co-signatories, Professors David Barron and Walter Dellinger, from today's Senate Judiciary Committee hearing on the question. (Disclosure: I am currently working with David on scholarship on this topic.)

The testimony of the other witnesses, including separation-of-powers expert Lou Fisher of the Library of Congress, Professor Robert Turner, and former Assistant White House Counsel Brad Berenson, can be accessed from this page, which also includes statements of Senators Feingold and Leahy.

The hearing is well worth watching, but I have not yet been able to find the video online, such as at CSPAN.

Government Reply Brief in NSA/FISA Case

Marty Lederman

In the case being argued tomorrow in the U.S. Court of Appeals for the Sixth Circuit, the government has filed this reply memorandum in support of its argument that the court should vacate the district court injunction.

The government's reply provides ample reason, I think, why the government ought to dismiss its own appeal -- principally that it is now complying with the terms of the injunction below -- but I must confess that, for the reasons I've already explained, I still do not understand the government's argument for why the injunction should be vacated. "It would be untenable," the brief argues, "to leave the President subject to an ongoing district court injunction that is not subject to appellate review because of mootness." However, (i) if there is any mootness, it is only because the government itself has agreed to act in compliance with FISA, as the district court injunction required; and (ii) more importantly, if the government is committed to acting in accord with FISA going forward, then there is nothing "untenable" about preserving an injunction that requires no more than that. If, on the other hand, the government wishes to preserve the right to act in violation of FISA once again, then the injunction is serving a very real function, at least unless or until an appellate court reverses the district court on standing or state secrets grounds, or on the merits.

The brief speaks for itself, however, and perhaps I'm missing something important, so I encourage interested readers to read it themselves.

Tightening Control over the Federal Bureaucracy

JB

The New York Times features a story about the President's January 18th, 2007 Executive Order, which gives the White House greater control over the guidance documents that agencies produce. These guidance documents, while not themselves binding law, nevertheless strongly influence the way businesses comply with federal regulations. The new executive order imposes greater restrictions on when and for what purposes the agencies can write these documents; and it requires that they clear these advisory documents with regulatory policy offices staffed by political appointees of the Administration. The purpose is to ensure that the guidance documents are consistent with the Administration's policy views.

The new Executive Order amends a previous order promulgated in 1993 by the Clinton Administration, which also sought to bring the bureaucracy more under the control of the White House. In fact, the Clinton Adminstration introduced a number of changes designed to ensure that federal agencies better reflected the President's policy (and political) agenda. And Clinton's innovations, in turn, built on decisions made in the Reagan Administration.

It is true that the Bush Administration's new rule will give political appointees more say over the guidance documents that are produced by scientists and other experts in the civil service. It will increase the control that the White House and its political concerns have over the bureaucracy. But this development is best understood as the continuation of a trend that goes back through several administrations, both Republican and Democratic.

As the federal bureaucracy has grown larger and its orders and advice more frequent and pervasive, the bureaucracy has also become increasingly independent of the political will of the White House. Presidents, realizing this, have sought to bring the bureaucracy under their control in various ways. The Reagan Administration tried to slow down bureaucratic initiatives it did not like. The Clinton Administration tried to harmonize regulations and require additional justifications. The difference in strategies makes some sense: The Reagan Administration ran against government regulation, and so tried to control it by impeding it. The Clinton Administration, by contrast, tried to impose various good government reforms on regulation, and, perhaps more important, tried to take credit for the work that the bureaucracy was doing, particularly after the Democrats lost Congress following the 1994 elections. Thus, the President would often make public statements and hold press conferences to announce decisions made in the bureaucracy, declaring them to be initiatives (and successes) of his Administration. Where Reagan sought to rain on regulation's parade and slow it down, Clinton sought to run ahead of the parade so that he could lead it. (For those who are interested, Dean Elena Kagan of the Harvard Law School wrote an important study in the Harvard Law Review in 2001 comparing the Reagan and Clinton Administrations' attempts to control the federal bureaucracy, and this post draws on her analysis.)

Interestingly, the Bush Administration has built on the Clinton model more than the Reagan model. Instead of trying to halt regulation, it has sought greater political control over advisory documents and required a greater showing that regulation addresses a genuine market failure. It seeks to use political appointees to act as gatekeepers for the content of advisory documents before they are published.

The reasons why Bush has followed Clinton more than Reagan flow from the rise of Bush's big government conservatism, a conservatism that happily uses all the levers of federal power to benefit his political allies, including most particularly business interests, who remain central to the Republican political coalition. The Bush Administration does not so much seek to stop regulation as to mold it in a decidedly business-friendly way.

It no accident that these revisions occur following the Republican loss of Congress in 2006; both Congress and the President have varying degrees of influence over the bureaucracy; the Administration, faced with a Congress of the opposite party, is trying to ensure that its influence remains stronger. But it is likely that these changes would have occurred even if the Republicans retained Congress, because these changes are part of a longer trend of Presidents finding ever new ways of asserting control over the federal bureaucracy, and, more to the point, they mesh well with Bush's big government conservatism.

Critics may assume that the use of political appointees as gatekeepers is consistent with the Administration's "war on science." There may be something to that, but here is a better way to look at it. Scientific expertise is a source of authority for the bureaucracy; it justifies its independent judgment. Such independent judgment is precisely what Presidents seek to curb in asserting control over the bureaucracy. There is no one way to do this, of course. The Clinton Administration sought to require greater justification for bureaucratic policy initiatives with the idea of ultimately taking credit for the bureaucracy's best ideas. The Bush Administration has built on the Clinton model to some extent, but also tried a different approach, seeking to hew bureaucratic judgment more closely to the White House's political judgment. While both models assert political control over bureaucracy, the Bush strategy treats expertise more like a threat to Presidential authority than the Clinton model did. That should not be surprising. The "permanent campaign" of the Clinton Presidency has morphed and metastasized into the basic operations of governance in the Bush Administration. Critics often charge that the Bush Administration does not care much about policy debate, only about politics. The Bush Administration's distinctive solution to the conflict between the President and the bureaucracy reflects this larger tendency.


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