What Is It About Philosophy?

Heather K. Gerken

Yesterday, Balkinization poster Brian Tamanaha wrote about Scott Shapiro's new book, Legality. [In the interest of full disclosure, I should note that I'm Scott's colleague and friend, so discount accordingly].

What intrigued me about the review was that it was effusive about the book but unleashed a blistering attack on Shapiro's disciplinary commitments. Tamanaha calls the book a "superb articulation and defense of exclusive legal positivism" and "a truly impressive book." But he roundly criticizes Shapiro for eschewing what Tamanaha calls a "pluralist" approach because Shapiro refuses to take into account all of the insights social science has to offer in thinking about what law is. Shapiro is painstakingly clear about why he chose to do so; as an analytic philosopher, Shapiro thinks it's important to shear away a great deal of information in order to figure out what law is. It's clear, however, that Tamanaha doesn't buy this approach.

Setting aside the merits for the moment, Tamanaha's review surprised me. Philosophy is decidedly not my cup of tea. But I can't remember seeing a review of an important piece of legal history that spends pages criticizing it for hewing too closely to Clio's norms. I can’t remember seeing a review of an important sociological study that mourns the fact that it failed to take into account all of the insights afforded by economics. I don’t mean to say that Tamanaha's arguments are in any way inappropriate -- to the contrary. But I do think reviews like this one -- extremely positive about the work, relentlessly negative about the disciplinary rules that shape it -- are unusual.

Maybe members of every discipline feel like they get this type of pushback from law professors, who are so accustomed to an interdisciplinary, problem-centered approach that we sometimes lose patience with disciplinary bounds. But the pushback against legal philosophy seems of a different sort to me. The closest example I've seen is the reaction to the work of economists, which is often challenged along these lines. Still, at the end of the day, even those hostile to economics still typically evaluate economic work against the norms of that discipline, something that I take to represent a begrudging admission that economics is capable of generating valuable insights.

I think I would have been less surprised by the review if I thought that Tamanaha really believed that analytic philosophy isn't capable of generating valuable insights. If I read him correctly, though, his claim isn't that analytic philosophy contributes nothing, but that analytic philosophy would get a lot more traction if it drew on other disciplines. That's a perfectly fair claim to make, but to be convincing one would also have to show that this disciplinary shift wouldn't dilute the contributions analytic philosophy is otherwise capable of making.

Let me offer an example, and here I want to borrow a lovely analogy from Fred Schauer's review of Legality. Schauer writes in mostly admiring terms about the book's main argument that law involves planning. His main criticism is that Shapiro fails to take into account the role of sanctions in thinking about what law is. As Schauer explains, Shapiro does so quite self-consciously. In the tradition within which Shapiro is writing, one focuses only on the essential properties of law, and law can exist without sanctions.

Schauer talks about the study of birds to explain why he thinks Shapiro should have included sanctions within the ambit of his analysis. Schauer notes that analytic philosophy would push one to focus on the only two things that birds have in common: they have a backbone, and they have feathers. Schauer says that the problem with this approach is that it prevents one from thinking hard about the fact that most birds also fly. He notes, correctly, that we "surely . . . miss something important if we ignore the fact that almost all of them can and do fly."

Yup. But an analytic philosopher would presumably respond that if we started with flying as a criterion, we might think too much about bats or ignore the luckless penguin (an argument that Schauer, to his credit, anticipates). Similarly, if Shapiro had included sanctions within the ambit of his analysis of the law, he might have missed the important (and, in his view, essential) role that planning plays. It's possible, then, for Schauer to be right that it would be exceedingly useful for some philosophers to think about the role sanctions play in the law, but that argument gets traction as a critique of Legality only if Schauer's review successfully shows that Shapiro could have come up with the same or better insights about law and planning by taking sanctions into account.

That brings me back to Tamanaha and why philosophers, particularly analytic philosophers, seem to annoy the hell out of the rest of the academy. A claim like Shapiro's -- that it is important to ignore certain types of evidence -- seems to suggest the irrelevance of things that the rest of us find important. Similarly, Tamanaha's response -- that scholars should extend their reach and think in interdisciplinary terms -- is intuitively appealing. But it's crucial to remember the core disciplinary claim Shapiro is making -- that legal philosophy is making progress precisely because its arguments don't rest on social science. If Shapiro had claimed that his was the only way of thinking about these issues, he'd be making a foolish claim. But his claim is that analytic philosophy is one very useful way of thinking about these issues. And I don't think Tamanaha would really dispute that point.

Nor should the rest of us, because we all ignore some things in order to focus on others. Historians confine themselves to the claims their documents allow them to make. Economists shear away lots of information about real-world behavior in order to generate certain useful insights. Even law professors, less bounded by disciplinary norms, do it. Mid-level theorists, for instance, don't spend time defending their basic assumptions; they just note them and move on. Doctrinalists don't begin every article with a defense of stare decisis. And so on.

That brings me to one last thought about academic pluralism. Tamanaha rebukes Shapiro for not being a pluralist. But I suppose there are two kinds of pluralism. One version suggests that each of us should be pluralists in our work -- that each scholar should look to every relevant discipline in searching for answers. Another suggests that it's perfectly fine to search for answers using our own disciplinary tools, provided that we respect the efforts of others to do the same. Shapiro's book is certainly not pluralist in the first sense. But it is in the second.

Finally, and perhaps this is entirely due to my friendship with Scott, even if you think analytic philosophy is too insular, Legality seems like the one book that shouldn’t be tarred with that brush. Shapiro does an impressive job explaining the debates within the discipline and showing how and why they matter to those outside of it. His ideas are certainly relevant to constitutional law, and he's writing a paper applying them to international law with our colleague Oona Hathaway. The book goes a long way toward sharing the insights of analytic philosophy with the rest of us and that, too, seems like a pluralist move.
Posted 2:04 PM by Heather K. Gerken [link]

Read the Whole Constitution

JB

Today, as a symbolic act, the House of Representatives will read the U.S. Constitution aloud.

Good for them. I wish they would make it an annual event.

But in order to avoid having any member read parts that remind people of slavery, House members are omitting parts of the Constitution that have since been amended.

This is a mistake.

The Constitution is not perfect. Nor are our political institutions. Nor are the American people. But we can take pride in our Constitution precisely because we Americans have continually sought to improve the Constitution, our institutions, and ourselves over time. We have not always been successful in these efforts. We have made many mistakes along the way, and we have committed many injustices. We continue to do so to this very day. The point rather, is that by creating this great experiment in self-government-- the United States Constitution-- we have committed ourselves to achieving a more just, free and equal society under law and we have adopted our Constitution and amendments to it as a way of realizing those commitments in history. It is a task that began with the founding and continues to this very day. It is a task that is never finished.

Reading the entire Constitution is a way of reminding ourselves that the Constitution is always a work in progress; that it has been flawed in the past and probably is still flawed in the present; that what we have now before us is not necessarily the final version of the Constitution, but that the Constitution can always be improved and that it must be improved; that no matter how much our political institutions may have failed us in the past, and no matter how much we have failed ourselves in the past, political redemption is always still possible; and that We the People of the United States can still always strive for a more just, more free, and more equal country-- what the Preamble of the Constitution calls a "More Perfect Union."

Reading the entire Constitution-- including its oblique references to slavery--is a way of engaging in proper humility about the products of flawed human beings, but it is also a way of expressing faith in eventual improvement. If the Constitution once allowed great evils, and now it does not, perhaps someday we will be able to recognize the current evils it still allows, and ameliorate them as well.

Reading the entire Constitution should not be an act of shame that politicians avoid. It should be an act of hope.
Posted 12:53 PM by JB [link]

Legal Philosophers, Alien Civilizations, Monism versus Pluralism (Reflections on Shapiro's Legality)

Brian Tamanaha

Scott Shapiro’s new book, Legality (2011), is a superb articulation and defense of exclusive legal positivism. Readers are treated to an insightful and supremely clear exposition of the core issues that occupy contemporary analytical jurisprudents, including the debate between legal positivists and natural lawyers, between legal positivists and Ronald Dworkin, and between inclusive and exclusive legal positivists. Shapiro’s novel idea in the book is that every single law is a “plan” (or “plan like”) and law in general is a planning system.

Rather than discuss the merits of Shapiro’s theory of law, I will instead use his book to offer a few reflections on the state of contemporary analytical jurisprudence. As Shapiro acknowledges, many outsiders are critical of legal philosophers for engaging in scholastic debates over arcane matters of interest only to fellow philosophers. Shapiro is determined to refute this common perception by showing that his theory of law delivers important lessons for legal practice.

Notwithstanding his avowed intention, Shapiro confirms that legal philosophers really are occupied with otherworldly matters. In a crucial passage early in the book (albeit in a footnote), Shapiro makes a startling claim:

Social science cannot tell us what the law is because it studies human society. Its deliverances have no relevance for the legal philosopher because it is a truism that nonhumans could have law. Science fiction, for example, is replete with stories involving alien civilizations with some form of legal system. These examples show that it is part of our concept of law that groups have legal systems provided that they are more or less rational agents and have the ability to follow rules. Social scientific theories are limited in this respect, being able to study only human groups, and hence cannot provide an account about all possible instances of law.

I laughed out loud when reading this passage (truisms about aliens?). But Shapiro is absolutely serious. Read more »
Posted 1:38 PM by Brian Tamanaha [link] (5) comments

Justice Thomas and Korematsu

Jamal Greene

Does Clarence Thomas believe Korematsu v. United States was correctly decided? As most Balkinization readers know, in Korematsu the Supreme Court upheld an evacuation order against Fred Korematsu, a U.S. citizen who had been ordered to an internment camp solely because he was of Japanese descent and resided on the West Coast during World War II. Korematsu’s conviction was vacated four decades later on a writ of coram nobis in which the government all but confessed error, and Congress has since officially apologized for the internment and granted reparations to its victims. Korematsu is almost universally acknowledged among serious constitutional lawyers to have been not just wrong, but so egregiously wrong as to warrant inclusion in what Jack Balkin, Sandy Levinson, and others have termed the “anticanon” of U.S. constitutional law.

Consistent with that understanding, Justice Breyer wrote in his recent book that “it is hard to conceive of any future Court referring to [Korematsu] favorably or relying on it.” During her confirmation, Elena Kagan singled out Korematsu as a “poorly reasoned” Supreme Court decision. In Stenberg v. Carhart, Justice Scalia likened Korematsu to Dred Scott. Opinions vary as to exactly why Korematsu is wrong (race-based decisionmaking? excessive military deference?), which is a common feature of anticanonical cases, but a belief that it was correctly decided would be considered, as Jack might say, “off the wall” in most respectable circles. In fact, according to Eric Muller (104 W. Va. L. Rev. 571, 586 n.75) and David Cole (54 Stan. L. Rev. 953, 993 n.165), every Justice of the Rehnquist Court as of 2002 was on record disagreeing with Korematsu, with the exception of Justice Souter (whose view should be no mystery).

But let’s revisit the case as to Justice Thomas. The best evidence that he agrees with Korematsu is surely his dissenting opinion in Hamdi v. Rumsfeld, in which he argued that a U.S. citizen picked up in Afghanistan and alleged to be an enemy combatant had no judicially enforceable procedural rights beyond a determination that the detention was congressionally authorized. This is because deference to the executive’s wartime decisionmaking “extends to the President’s determination of all the factual predicates necessary to conclude that a given action is appropriate.” On its face, this suggests that congressional authorization, an executive order, and the War Department’s assertion that placing Japanese-Americans in internment camps was necessary for national security should have been sufficient to get Justice Thomas’s vote in Korematsu. We can bolster that suggestion by noting that the Hamdi dissent cites favorably to Hirabayashi v. United States, in which the Court unanimously upheld a race-based curfew order that applied to Japanese on the West Coast. Hirabayashi and Korematsu are different only in degree, and -- apart from his unexplained failure to cite Korematsu in his Hamdi opinion -- I am aware of nothing Justice Thomas has said or written that would imply that he sees a doctrinal distinction between them.

We have to go beneath the surface, though, because Justice Thomas is also on record as opposing virtually all governmental racial classifications, even those not obviously motivated by racial animus. And in fact, Muller’s and Cole’s evidence for the assertion that Justice Thomas opposes Korematsu is his joining Justice O’Connor’s majority opinion in Adarand Constructors v. Pena, which held that federal race-based affirmative action programs were subject to strict scrutiny. In that opinion, Justice O’Connor wrote, “Korematsu demonstrates vividly that even ‘the most rigid scrutiny’ can sometimes fail to detect an illegitimate racial classification.” It’s rather odd phrasing, and from a certain perspective sounds almost sarcastic. I imagine that most Korematsu scholars would dispute that the Court in fact applied “the most rigid scrutiny,” even though Justice Black’s majority opinion used those words. And the word “illegitimate” modifies the racial classification, not the Court decision. Someone who believes in absolute judicial deference to military decisionmaking in wartime could join that language in good faith, since it absolves the Court, which applied “the most rigid” scrutiny. It seems to suggest that the error was solely the military’s, not the Court’s.

There is additional, circumstantial, evidence that Justice Thomas agrees with the Korematsu majority. He referred to Korematsu in his concurrence in Missouri v. Jenkins to note that strict scrutiny has been fatal in fact except for decisions, namely Korematsu and Hirabayashi, “rendered in the midst of wartime,” language fully consistent with his deferential posture in Hamdi. He also referred to Korematsu in his dissent in Grutter v. Bollinger, the Michigan law school affirmative action case, but there he wrote that “the lesson of Korematsu is that national security constitutes a ‘pressing public necessity,’ though the government’s use of race to advance that objective must be narrowly tailored.” I suspect most lawyers would not represent the lesson of Korematsu in affirmative terms. They would say that the “lesson” of Korematsu is that we should be suspicious of any government claims that its actions in the national security context constitute a “pressing public necessity.”

Of course, Justice Thomas is well-known for making claims about constitutional doctrine that are considered “off the wall” by most mainstream thinkers (though Justice Scalia is trying to give him a run for his money this week). Consider, for example, his repeated suggestions that we should reconsider the New Deal settlement. Or his suggestion that schoolchildren have no speech rights while in school. But it would be discordant for Justice Thomas to agree with Korematsu, since he and Justice Scalia are the two strongest proponents of a “colorblind” Constitution in the Court’s history. It seems at least ironic that he would be the only member of the Court to agree with the outcome in the case for which there is the greatest consensus that the Court was wrong to permit race-based decisionmaking.

If Justice Thomas, a sitting Supreme Court Justice, does in fact agree with Korematsu, does it get kicked out of the anticanon? Or are Justice Thomas’s views for whatever reason sui generis in deciding what is canonical or anticanonical?

Posted 1:18 PM by Jamal Greene [link]

Why the U.S. Shouldn’t Prosecute Assange–For the U.S.'s Sake, Not His

Marvin Ammori

I decided to write up some thoughts on Wikileaks.

Many of our nation’s landmark free speech decisions are not about heroes–several are about flag-burners, racists, Klansmen, and those with political views outside the mainstream. And yet we measure our commitment to freedom of speech, in part, by our willingness to protect even their rights despite disagreement with what they say, and why they say it.

The story of Wikileaks publishing U.S. diplomatic cables has become the story of Julian Assange: is he a hero or villain, a high-tech terrorist or enemy combatant? Should the U.S., which may have already empanelled a grand jury in Virginia, prosecute him as a criminal under the Espionage Act of 1917 or under the computer fraud and abuse act?

Though I have spent years advocating for Internet freedom, I don’t think Assange is a hero for leaking these diplomatic cables.  According to plausible reports, the leaks have harmed U.S. interests, made the work of U.S. diplomats more difficult, likely endangered lives of allies, and may have set back democracy in Zimbabwe and perhaps elsewhere.  Even some of Assange’s friends at Wikileaks are doubting Assange’s heroism: a few left him to launch a rival site and to write a tell-all book.  Whatever the harms of secrecy and over-classification, Assange’s actions have caused tremendous damage.  No wonder polls show nearly 60% of Americans believe the U.S. should arrest Assange and charge him with a crime.

My initial reaction was similar.  I thought that if a case could be made against Assange, one should be made.

But, as time passed, the political and legal downsides of prosecution came into clearer focus, and I am rethinking that initial reaction.  Despite still believing Assange’s actions have been harmful, I have now come to the opposite conclusion—not for the benefit of Assange, but for the benefit of Americans and of the United States.

Prosecuting Assange could do more harm than good for our freedom of the press and would inflict further harm on diplomatic effectiveness.  Despite the appeal of prosecuting Assange, it is not worth the cost.  We will not get the cables back.  We will not deter aspiring Wikileakers, as both our allies and our enemies know.  We will, as Dean Geoffrey Stone has best articulated, likely sacrifice established principles of freedom of the press in doing so.

Here are some thoughts on why we should think twice about prosecuting Assange, categorized by harms to the U.S.’s freedom of the press and then harms to America’s diplomatic effectiveness. And, in advance, I thank the many scholars, policy experts, and friends who took the time to give me thoughts on earlier drafts of this post.

Read more »
Posted 9:54 AM by Marvin Ammori [link]

The Good Filibuster?

Bruce Ackerman

In an op-ed in today's Wall Street Journal, I suggest that we should stop talking about the "filibuster" as if it were one undifferentiated disgrace. We should instead view the problem through the lens of the separation of powers: Filibusters on legislation (Article one) raise different issues from those involving nominations to the executive (two) or judicial (three) branches. But current reform efforts fail to trichotomize the problem, and as a consequence, we are in danger of missing an extraordinary political opportunity to completely eliminate the filibuster on executive nominations. Unless there is a last-minute rethink, the best we will getting is a watered-down set of half-hearted measures that will have very limited impact.

In the course of pleading for a targeted attack on filibusters of executive nominations, I make a passing claim that is worth a lot more discussion.

There is, I suggest, such a thing as a good filibuster: When dealing with judicial nominations, the current 60 vote rule makes a lot of constitutional sense. Even with this super-majority rule, presidents have increasingly nominated ideological extremists to the bench in an effort to pacify their activist political base. This tendency would be greatly accelerated if it only required 51 votes to obtain judicial confirmation.

Eliminating the judicial filibuster, in short, will generate an increasingly polarized judiciary over time. In response to this obvious danger, many modern constitutions have required specially arduous procedures for the selection of judges to constitutional courts. Germany, for example, insists on a two-thirds vote -- forcing the selection of judicial moderates over time.The successful operation of the German system has encouraged many other countries to follow its lead.

Of course, the meaning of judicial "moderation" changes over time. As the balance of political and constitutional opinion shifts, views that would have been dismissed as too extreme for serious consideration begin to gain a foothold in mainstream opinion, and vice versa. The very definition of "off the wall" argument changes -- as Jack Balkin puts it -- even when judicial moderation reigns.

Nevertheless, a supermajority rule generates a very different evolutionary pattern from one in which the filibuster were eliminated. Under this scenario, the president, together with a slim Senate majority, pushes through a host of extremists -- inviting the next president to retaliate with a host of extremists of the opposite persuasion, and on and on, in a polarizing cycle.

This is why I strongly opposed the efforts of Senate Republicans to eliminate the filibuster on judicial confirmations during the Bush years. And this is why I continue to oppose them today.

I expect many of you to disagree. But even if I turn out to be "off the wall" on this one, my basic point stands: your critique will invoke very different arguments from those that would be appropriate when assessing the legitimacy of legislative and executive filibusters. It will inevitably discuss the distinctive features of judicial review.

My bottom line: the separation of powers should become a fundamental part of serious talk about the filibuster.
Posted 9:46 AM by Bruce Ackerman [link]

Scalia on Sex Equality

JB

Nothing that Justice Scalia says in his recent interview with California Lawyer should be news to anyone who has followed his jurisprudence closely. But I do have a few bones to pick with him about his originalist claims. (Before I begin, it's worth noting that throughout the interview Scalia seems to assume that the original meaning of the Constitution is pretty much identical to how the adopting generation would have applied its provisions; for the purposes of this posting, I will accept his account of originalist methodology, although it is not my own.)

First, The central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons. It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate.

Scalia argues that the fourteenth amendment was not intended to prevent sex discrimination. That's not entirely true. The supporters of the fourteenth amendment did not think it would disturb the common law rules of coverture: under these rules women lost most of their common law rights upon marriage under the fiction that their legal identities were merged with their husbands. But these rules did not apply to single women. So in fact, the fourteenth amendment was intended to prohibit some forms of sex discrimination-- discrimination in basic civil rights against single women.

Moreover, the Constitution was subsequently amended. After the nineteenth amendment, the common law coverture rules made little sense. If married women had the right to vote, why did they not have the right to contract or own property in their own names? If we read the Fourteenth Amendment's guarantee of civil equality in light of the Nineteenth Amendment, the guarantee of sex equality should apply to both single and married women. The conservative court during the Lochner era thought as much in a case called Adkins v. Children's Hospital, decided immediately after the ratification of the Nineteenth Amendment.

Scalia argues that if contemporary generations want to protect women, they can pass antidiscrimination laws and nothing in the original understanding of the Constitution forbids this. But this is not quite correct. The federal government would not be able to pass civil rights laws protecting women from discrimination; only states and local governments could. That is because if judges followed what the Constitution's framers expected, federal regulatory power would be greatly constricted and, among other things, the Civil Rights Act of 1964's ban on sex discrimination would be unconstitutional because it would beyond federal power to enact. Justice Scalia would surely vote to uphold much federal legislation today (see his concurrence in the medical marijuana case, Gonzales v. Raich), but that is because he accepts the New Deal revolution, which he well knows is not consistent with original understandings about the scope of federal power. So Scalia's arguments about what modern majorities can do today rest on his view that a very significant proportion of constitutional understandings of the framers can simply be jettisoned because they make little sense in today's world. That is to say, he doesn't really believe in originalism either when it comes to a very wide array of cases concerning federal governmental power.

Second, if Scalia had really wanted to be faithful to the expectations and assumptions of the the adopters of the Fourteenth Amendment, he had no business joining the opinion in Bush v. Gore, because the Amendment was not intended to change state rules concerning the right to vote.

During the interview Justice Scalia says that he doesn't even need to read the briefs to know what originalism permits, requires or forbids; but I would respectfully suggest he needs to read a bit more history.
Posted 8:35 AM by JB [link]

Why Wednesday is the Acid Test of Whether the Obama Administration is Committed to "Change We Can Believe In"

Sandy Levinson

The new Congress convenes on Wednesday. We will know by that evening whether the Administration is serious about "change we can believe in," because Vice President Joseph Biden will have been asked to rule, as President of the Senate (his only constitutionally-prescribed duty) whether the Senate is a continuing or non-continuing body and, therefore, whether, as the latter, it can change its rules, including Rule 22, by a simple majority. He should do so. That, obviously, doesn't conclude the matter, because then the will of the Democratic majority will be tested, and 50 of the 53 Democrats will have to vote to modify the existing filibuster rules. I personally fear that there aren't the votes available, but, to put it mildly, every member of the Senate should be forced to go on the record as to reforming that truly egregious institution (which, of course, I believe would be fundamentally illegitimate even if there were no filibuster, but the filibuster makes it even more so). If Biden refuses to make change thinkable (even if he cannot guarantee its actuality), then both Democrats and democrats should know that the Obama Administration is in no serious way committed to changing the institutional matrix of American politics that makes it next to impossible to achieve its policy goals. And the saddest thing, of course, is that ostensible "Democrats" will not feel themselves under great public pressure, because they know that what passes for the American left, unlike Tea Partiers, seems totally unwilling to engage in serious mass politics (including threats of disruption and other "uncivil" actions). Compare with the terror that the Tea Party has generated in congressional Republicans, each of whom seems to fear a primary opponent in 2012 if they do not themselves adopt the demeanor of utter "mad dogs." I say this less critically than it might sound; the fact is that Tea Partiers believe in democratic politics and have faith in their fellow countrymen and women in a way that the contemporary American left simply does not. And, of course, they know that politics is quite often motivated by anger (which is often justified) and a concomitant willingness to breach certain norms of "civility." (This view, of course, is in tension with the rally called by Jon Stewart.)

The President should hold a news conference explaining why reform of the Senate is absolutely essential and put the spotlight on Democrats. It's utterly beside the point to blame Senate Republicans, who have consistently behaved "rationally" given the perverse incentives generated by our thoroughly dysfunctional Constitution.

As I have previously argued, there may be an argument for retaining some form of filibuster in very limited contexts, including, perhaps, confirmations of lifetime appointments to the federal judiciary. There is no justification whatsoever for the Senate's practice of holds, especially "secret" ones. In any event, Biden's ruling that the filibuster rule is subject to change by majority vote doesn't necessarily entail getting rid of it entirely; rather that there should be a fully serious discussion, covered live on C-Span explaining its merits and demerits to an American public that jusifiably feels ever more alienated from a political system that is not working and, more to the point, cannot work without significant reform. (Perhaps Bernie Sanders can take the lead in explaining the utter bankruptcy of the Senate's way of "doing business.")

For relevant commentary, see the New York Times editorial appearing in Monday's paper and, even more to the point, the op-ed by former Senator and Vice President Walter F. Mondale, titled "Resolved: Fix the Filibuster."
Posted 12:30 AM by Sandy Levinson [link] (59) comments

A Diet Plan You Can stickK To

Ian Ayres

Just in time for New Year’s Resolutions, here’s a guide to make weight loss resolutions stickK. It’s The $500 Diet and for a limited time you can read it for free.

Most diet books are written by physicians and scientists, but The $500 Diet is my attempt to give economics and contract law a chance to change how much you want to eat. It’s a seven-step plan to strengthen your resolve – to help you make credible New Year’s resolutions.

Would you rather lose a pound next week or $500?

Most people given the choice would find it pretty easy to take off a pound. That’s the first step. Now repeat as necessary.

Of course, not every one can afford to put $500 at risk. But anybody can afford to risk 10 or 20 percent of their disposable income – some amount that is large enough to get your attention. The booklet shows you how to use stickK.com’s layers of accountability to craft a diet that will strengthen your resolve.

Most diet books obsess about what you should put in your mouth. But information is not the problem. You already know that to lose weight you need to eat a bit less or exercise a bit more. The $500 Diet is a different kind of diet plan, because it doesn’t tell you how much to eat or exercise. You are smart enough—with the help of the Internet and dozens of dieting books—to figure that out. What’s unique about The $500 Diet is that it works on another dimension. It lets you set your own incentives to lose weight.

I expect that some of my colleagues will give me grief about publishing a diet booklet. But I’m participating in a larger trend of law professors breaking the boundaries of law review writing. My colleagues Jed Rubenfeld and Stephen Carter have written murder mysteries (see, e.g., The Death Instinct and The Emperor of Ocean Park). Balkinization's own Jack Balkin has tranlsated the I Ching. My colleague, Amy Chua, is about to publish an amazing book on parenting, Battle Hymn of the Tiger Mother. It turns out I’m not even the first law professor to write a diet book. Susan Estrich beat me to the punch more than a decade ago with Making The Case for Yourself. The centre cannot hold.
Posted 10:45 AM by Ian Ayres [link]

Something Special

Andrew Koppelman

In a recent response to my earlier post defending same-sex marriage, Robert George and his coauthors (hereinafter “George) argue that my attacks on their views have only strengthened them, by showing the unacceptable implications of a different view. It’s hard to resolve our disagreement, since each of us sees value in the world where the other sees none. It may be helpful to sort out the different claims that George is making. They tend to run together in his exposition, but they are in fact independent of one another, and each must therefore separately be defended. They are:

1. Heterosexual marriages are not a mere social construct, but are Something Distinctively Real.
2. Heterosexual marriages are Something Special.
3. Homosexual relations are Nothing Special.
4. Homosexual relations are Something Awful.

His recent exchange with Barry Deutsch focuses on 1. (In his most recent writings, he has said little about 3 and 4, but other writings have made clear that he endorses both.) Deutsch tries to put pressure on George by showing that a mating male and female do not become a biological unity. George ripostes with skill. As I’ll shortly explain, I’m still not convinced: a mating male and female are cooperating in a biological activity that neither could do alone, but that does not make them a biological unity.

But the real question is not 1, but 2. It raises a question of ultimate value that cannot be resolved by demonstrative reasoning. We are at a real impasse. So I can’t conclusively demonstrate that George is wrong. I can show, however, that the objection that he is now pressing against my view does no damage. In doing so I elaborate my own view in a way I haven’t before, and so, I hope, justify adding to the growing mountain of verbiage in this debate.

Read more »
Posted 4:40 PM by Andrew Koppelman [link]

Iatrogenic Legal Assistance?

Ian Ayres

Crosspost from Freakonomics:

Harvard Professors Jim Greiner and Cassandra Pattanayak have posted a remarkable randomized experiment (“What Difference Representation?”) with evidence showing that offers for free legal representation from the Harvard Legal Aid Bureau (HLAB) ended up hurting unemployment claimants.

HLAB is a “student-run, faculty-overseen” legal service clinic at Harvard Law School. It is “the oldest student legal services organization in the country.” In the experiment, unemployment benefit claimants (who were pursuing “first-level” appeals) were randomized into one of two groups: a treatment group which was offered free HLAB representation, and a control group which was not offered representation. Prior to randomization all claimants agreed to participate in a randomized study. (“If the randomization was not to offer, the student-attorney so informed the claimant by telephone and provided her with names and telephone numbers of other legal services provides in the area who might take her case.”)

The claimants who were offered representation were no more (or less) likely to win their administrative appeal – but “the offer caused a delay in the proceeding.” The claimants offered representation had to wait on average 42 percent longer (53.1 vs. 37.3 days) before they received a decision of an Administrative Law Judge.

The results are particularly striking because not everyone who was offered representation was represented, and because those who were not offered HLAB representation were sometimes represented by alternative organizations.

The study highlights, again, the simple power of randomized control studies. There is a persuasive transparency to randomized control trials. The randomization doesn’t tell us why the offers caused a delay, but we should be fairly confident that those who were lucky enough not to be offered free legal assistance by HLAB had a better shot of cashing unemployment checks sooner. This initial study’s main limitation is that its sample size is only 207. Still, that is sufficient to raise the serious concern that HLAB’s offers of representation are hurting its potential clients. In medicine, iatrogenic effects are adverse side effects caused by medical treatment – this study points to a legal analogue in which well-intentioned legal assistance ends up resulting in adverse “side effects” for the clients.

This study raises deep ethical questions both for HLAB and other legal service providers. Does HLAB have a duty to stop offering representation or to change its modus operandi? Does it at least have an ethical duty to disclose the results of the study to prospective clients? Can other student legal service organizations ethically ignore the results of the study?

Will other organizations submit themselves to the institutional risk that their services will be found lacking? When in doubt, bet on narrow “head in the sand” self-interest. The authors report that another Boston-based provider of similar services “did not limit its opposition to a refusal to participate on its own part. Instead, when it discovered that HLAB was conducting a randomized evaluation, it halted its previous practice of suggesting that clients it could not itself represent call HLAB. And as of the time of this writing, this provider is currently using its power over the intake system of a third organization to prevent this third group from conducting its own randomized evaluation.”

A Last Minute Charitable Gift Suggestion

The HLAB story also motivated me to redirect some of my year-end charitable giving. In the past, I’ve given to causes (such as A Better Chance) which made me feel good but which turned out to have an abysmal record or at least no reputable evidence of success. But this year, I’ve given money to two charities, MIT’s Poverty Action Lab (PAL) and Innovations for Poverty Research (IPA), which are dedicated to using randomized control studies to find out which public policy interventions work to alleviate poverty. (Disclosure: I have number-crunching friends at both charities.) Would microcredit organizations do better using statistical credit scores instead of traditional subjective committee decision-making? Does providing free chlorine dispensers at water sources reduce child diarrhea? Scholars associated with these charities ran randomized experiments (described here and here) to find out. What I love about these charities is that they add to our knowledge – even when they establish that a particular intervention doesn’t work. As a reader of this blog, if you’re inclined to support data-driven decisionmaking, you could do a lot worse than contributing to these non-profits.

Posted 1:59 PM by Ian Ayres [link]

The Chief Justice on the President's State of the Union Address

Jason Mazzone

Chief Justice Roberts has issued his 2010 Year-End Report on the Federal Judiciary. Among the topics the Chief Justice addresses is the "persistent problem . . . in the process of filling judicial vacancies," a problem that has "created acute difficulties for some judicial districts." The Chief deems the cause of the problem to be that "each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their [sic] changing political fortunes." He calls on the political branches to find "a long-term solution" to the vacancy problem.

Within this discussion of judicial confirmations is a sentence that can plausibly be read as Chief Justice Roberts's response to President Obama's criticism, during his 2010 State of the Union speech, of the Court's decision in Citizens United v. FEC. Read carefully the final sentence of the following paragraph:

The Constitution, as one of its many checks and balances, entrusted the selection of new judges to the political branches. The judiciary relies on the President’s nominations and the Senate’s confirmation process to fill judicial vacancies; we do not comment on the merits of individual nominees. That is as it should be. The judiciary must respect the constitutional prerogatives of the President and Congress in the same way that the judiciary expects respect for its constitutional role.

Indeed.
Posted 12:01 AM by Jason Mazzone [link]