Transfer Students are the New Normal (With Significant Implications for Law Schools)

Brian Tamanaha

Transfer students are sweeping across law schools, with about 5 percent of students moving annually. In 2008, the most recent year with publicly available records, every accredited law school in America but one saw transfers; at almost every law school, the transfer door swung in both directions: outgoing students departed for a better school, just as incoming students came in. It is an annual reshuffle of students up the law school chain.

Remarkably—a sign of how crazy things have gotten—even students at top fifteen schools transfer up to find a better perch in the law school hierarchy. In the four years on record (2005-2008), as many as 10 students have transferred up in a given year from Michigan, Duke, and Northwestern, and a greater number have left Cornell and Georgetown.

Law professors treat transfers as if a taboo. A recent article about transfers in the Journal of Legal Education supplies numbers, but redacts the identities of the law schools (declining to "name names"). This concealment is dubious for a scholarly article--especially considering that the information is openly published by the ABA--and it hides the full impact transfers are having on legal academia. (The fact that the editor of the preeminent journal on legal education allowed the author to artificially withhold this information is indicative of the transfer taboo.)

Transfer students are the new normal. When nearly every law school (that can) takes in transfers, and many do so in significant numbers, it is silly to treat it as a deviant or dirty practice. The scale of this phenomenon--the names and numbers--may surprise you.Read more »
Posted 7:00 AM by Brian Tamanaha [link] (20) comments

In the Eye of the Storm, Part II: “Not Being Governed Like This”

Bernard E. Harcourt

Thanks to Frank Pasquale for pushing the conversation in such interesting directions. What we need to theorize, I take it, is the emerging wellspring of organized, but chaotic, a-political, but political, violence-resistance-delinquency that is too easily dismissed today as hooliganism, but is obviously deeply political in nature and, I believe, tells us something important about our current political environment. We need to theorize it deeply, with the kind of subtlety that someone like E.P. Thompson exhibited in his analyses of the moral economy of the English crowd and 18th century food riots. You may recall, Thompson revealed the political nature of the food riots as resistance to economic liberalization in part by showing that the riots couldn’t merely have been about hunger, nor crime, nor chaos, because the rioters were targeting the very means of production of bread—the mills. We need to understand these emerging forms of protest in a similarly nuanced way.

Let me start, though, by pointing to five additional pieces to the puzzle that I neglected to put on the table last time. First, Frank Pasquale and Umair Haque brilliantly expose the ideological underbelly of our “post-ideological age.” As Pasquale writes, “finance and government elites have positioned themselves to gain from whatever risks they shift onto society at large, via bailouts, emergency powers, and the revolving door.” There is, without doubt, a double standard. In Haque’s penetrating words, discussing the London riots: “Blow up the financial system? Here's a state-subsidized bonus. Steal a video game? You're toast.”

Over at ArsTechnica.com, Jon Stokes has brought to my attention two other important developments that are deeply connected to this wellspring of “hell raising” that need to be theorized as well. First, the hacker group “Anonymous,” which Stokes refers to as “a perfect example of the kind of post-ideological hell-raising expressed in the London riots” and discussed in Ars Technica's coverage of the hacker collective; and second, Wikileaks and Julian Assange, who, according to some, such as Bruce Sterling, are more about raising hell than political ideology. We need to include these developments in our theorizing about the London riots.

Third, Al Jazeera points out perhaps the greatest weakness in Slavoj Zizek’s argument in “Shoplifters of the World Unite,” namely his prejudiced (in the exact meaning of that term—pre-judged) reading of the Arab Spring. There is really no reason to prejudge the political outcomes in Tunisia, Egypt, Libya, etc. “’The end of revolution?’” Al Jazeera asks. “So early? So early in the game and so utterly has the European philosopher lost all hope.” Those revolts were ideologically driven and we simply cannot yet say what they will give birth to—regardless of the Iranian experience.

Fourth, Brent Staples, in his fascinating review of Randy Kennedy’s new book, reveals how the notion of "post-racial" must be related to the idea of the "post-ideological"—and also revealingly shows, in his penetrating discussion of the Rev. Jeremiah Wright episode, how so many (African)-Americans could easily come to reject “the ‘secular scripture’ of fundamental American goodness.” This too is an important piece of the puzzle.

Fifth and last for now—but there are more, I am sure—Daragh Grant, always brilliant (and on the political science teaching market this year), has pointed me to the intriguing parallel between the London riots and PM David Cameron’s youthful membership in the notorious Bullingdon Club at Oxford University. I live on a university campus with frat houses—and of course, we have had our own president who was a former member of the Skull and Bones society—so, yes, of course, one has to compare the youthful indiscretions of our elites with the violence of young people. The Prime Minister insisted: “We all do stupid things when we are young and we should learn the lessons.” Some people get to learn those lessons in different ways than others.

So that’s a lot to put on the table—perhaps enough for one post itself. I will continue to theorize next time. But let me just begin to sketch a direction tonight.

I’d argue that we are by no means in a “post-ideological” age. Listen to Texas Governor Perry and you’ll see that ideology, in its strongest sense, lives on. What is missing—and this is why Zizek would experience the political moment as "post-ideological"—is a robust, organized, militancy on the far Left—the Maoists, Leninists, Trotskyists, etc., of the 1960s. That form of political militancy has vaporized. Alain Badiou, Zizek’s intellectual running partner, was a Maoist, as were many in the European Left in the 60s—great recent book by Richard Wolin here. In this country, there were cells like the Black Panthers—it’s those kind of leftist political organization that no longer play a role, such that a London riot can no longer be “claimed” by any revolutionary movement—or (as it so often happened, falsely) be “attributed” to a political extremist group. There is just no critical mass of far Left political ideology left to stamp meaning on the London riots.

But it does not mean we are in a “post-ideological” age. [A lot will turn on the definition of ideology here. Raymond Geuss offers the best multiple definitions of the term in The Idea of a Critical Theory—I am simply using the term here to mean a political program that is deduced from a set of political ideas].

Instead, what I see in the London riots, in the Paris banlieus, even in the flash mobs and elsewhere, is a common critical reaction best captured, as Michel Foucault suggested, by the impulse to “not be governed like this.” It is a virulent rejection of the forms of governance that feel so oppressive. That is the common thread: resistance against the form of being governed—a thread that I discuss in this essay on radical thought, "Radical Thought from Marx, Nietzsche, and Freud, Through Foucault, to the Present". But there is a unique temporality to this critical impulse today. It is unique because of the collapse of so many utopian visions. The utopian dystopias of the twentieth century have fundamentally restructured the realm of political possibilities today.

According to ArsTechnica.com, there is a post on the open-posting site AnonNews: "We laugh in the face of tragedy, we mock those in pain, we ruin the lives of other people simply because we can, these things we do for the lolz and we do them with no remorse, no caring, no love, and no sense of morality, we attack all things in this way, we can, we will, and we have destroyed countless that stand to harm Anonymous." This reminds me of other forms of political resistance that I have explored here. I called it back then a “politics of spleen”—drawing on Baudelairean and 19th century bohemian resistance to bourgeois society as the paradigm of a certain form of resistant--also reflected in the 1990s in radical queer politics in this country. For instance in this 1991 editorial by Johnny Noxema and Rex Boy, the editors of the Toronto zine BIMBOX: "You are entering a gay and lesbian-free zone. . . . BIMBOX hereby renounces its past use of the term lesbian and/or gay in a positive manner. This is a civil war against the ultimate evil, and consequently we must identify us and them in no uncertain terms. . . . So, dear lesbian woman or gay man to whom perhaps BIMBOX has been inappropriately posted . . . prepare to pay dearly for the way you and your kind have f**ked things up.” There's an echo, an echo that can be heard today in so many forms of "apolitical" resistance or violence.

I like Frank Pasquale’s last sentence: “to develop a Mt. Pelerin Society for those who actually believe there is such a thing as society.” Intriguing... To be sure, ideological movements are not born by themselves. They never have been. They are created. Deliberately. With funding and foresight. They are made.

More to come...
Posted 9:43 PM by Bernard E. Harcourt [link]

Labor Day Links

Frank Pasquale

Just a few points of interest on Labor Day:

1) Alan Hyde, The Idea of the Idea of Labour Law: A Parable.

2) Yves Smith, The Decline of Manufacturing in America: A Case Study.

3) Mark E. Anderson, $500 a Month Less.
Read more »
Posted 5:07 PM by Frank Pasquale [link]

When we say that 9/11 changed something, what are we saying?

Mary L. Dudziak

We are beginning a week of reflection on the events of September 11, 2001.  Some 10th anniversary events will be memorials, remembering those who perished that day.  Other events will seek to make sense of what 9/11 did – to New York, to the United States, to the world.  So often remembered as a day that “changed everything,” academic panels will be held and op-eds written about just what 9/11 changed, and what it didn’t.

But what does it mean to say that 9/11 changed something?  There is often a slipperiness in the causality.  It is sometimes assumed that the terrorist attacks set certain historical events into motion.  But if we see 9/11 as causing the politics, culture and military actions that followed, then we are giving the airplanes that slammed into buildings a powerful determinism.  We are assuming that al Qaeda did not just slaughter thousands, but drove American politics for the next decade.

The post-9/11 era has sometimes been compared with the Cold War era to understand the way security concerns can impact rights.  The Cold War era shares another feature with the post-9/11 years: a murkiness about causality.  Although library shelves are filled with studies about what the Cold War did, just how the Cold War acted in history is sometimes left to the imagination.  The Cold War is sometimes evoked as if it were a climate system – as in the “Cold War climate,” but this climate somehow nebulously drove politics and culture.  Sometimes the Cold War is treated like a “hot” war, but without attention to its different military characteristics.  Sometimes it is simply a time-span, but nevertheless retains its causal character.

Diplomatic historians devote themselves to running down the details and understanding how the domestic and global puzzle pieces fit together.  But legal scholars often employ the Cold War as a category without this precision.

Similarly, 9/11 is seen as setting into play a series of events, without attention to whether we need a causal stopping point.  This builds in an assumption that there was a direct and inevitable line from the terrorist attacks to the Global War on Terror, and to the way American domestic and military policies were formulated. This accords Osama bin Laden more power that he actually had.

The assumption that 9/11 directly caused post-9/11 American policy also obscures one of the experiences of September 11 itself: the profound confusion.  When the second plane hit the South Tower of the World Trade Center, the terrible shock was coupled with fear and anxiety, and the question of what on earth was going on.  President George W. Bush provided an answer:  the nation was at war.  The wartime frame provided the president with a powerful way to rally the nation.  Americans came to see 9/11 as the opening of a wartime, but this displaced competing arguments at the time about what 9/11 was, and how the nation should respond.

On this 10th anniversary, we should see 9/11 as a crisis that enabled a political moment.  In the face of this crisis, American leaders made choices.  The most important choice of all was how to frame the terrorist attacks – to call the crisis a war.

Al Qaeda succeeded in a devastating attack on September 11.  What the terrorists did not and could not do was to determine American policy and politics for the next decade.  Even if 9/11 changed the way Americans thought about the world, it could not determine the actions we would take in its aftermath.  It did not deprive American leaders of choices.
Posted 10:09 AM by Mary L. Dudziak [link]

Revolt of the Elites

Frank Pasquale

In his post below, Bernard Harcourt has analyzed new forms of radicalism adopted by the most and least privileged. Umair Haque at the Harvard Business Review has also identified dispositions shared by street looters and certain elites. As the chief political commentator at London's Daily Telegraph has observed, "The moral decay of our society is as bad at the top as the bottom." Yet there are very different consequences for each group's transgressions.

The more disruptive the disenfranchised become, the more they provoke harsh responses from authorities, thus worsening their already marginal position. By contrast, finance and government elites have positioned themselves to gain from whatever risks they shift onto society at large, via bailouts, emergency powers, and the revolving door. As Ross Douthat observed, "The economic crisis is producing consolidation rather than revolution, the entrenchment of authority rather than its diffusion, and the concentration of power in the hands of the same elite that presided over the disasters in the first place."
Read more »
Posted 10:05 AM by Frank Pasquale [link]

“This had nothing to do with politics, nothing at all”

John Mikhail

So says an unnamed White House official in today's Washington Post, referring to Friday’s decision to scrap a safer ozone standard that would have required states and local communities to reduce air pollution or face federal penalties.

Back in the real world, the editors of The Wall St. Journal appear downright giddy at the demise of the proposed rule, issued by EPA in January 2010 and subsequently targeted by Congressional Republicans and lobbyists for the energy sector. A “startling and welcome decision,” the editors observe, which came about because “someone on the re-election side of Mr. Obama’s universe must have taken a closer look” at the political consequences of the proposed rule.

My colleague Lisa Heinzerling, who recently returned to Georgetown after serving as the head of EPA’s Office of Policy, has a powerful criticism of the President’s announcement here. In addition to objecting to the decision on legal, scientific, and economic grounds, she calls on the White House to make public the EPA’s explanation of its own standard. An excerpt:

When rules like the ozone NAAQS go to the White House for review, they are accompanied by a detailed explanation of the agency's reasons for deciding the way it did; this is the document that, if the White House clears the rule, will appear in the Federal Register as the agency's explanation for its rule. The ozone NAAQS was sent to the White House for review in July. Thus there exists a full package from EPA containing the final rule and the explanation for it. The least the White House can do at this point is to release that package. Let the public know what EPA concluded in its final package about the harmful effects of ozone pollution. Let states and local governments take that information and decide whether to strengthen their own pollution standards in light of what EPA has found. Let citizens decide what actions to take in light of that evidence. As President Obama explained when he issued a memorandum directing agencies to adopt a presumption of disclosure under the Freedom of Information Act: "Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve." It is hard to see a public-regarding reason for not disclosing the EPA's explanation of the science on ozone and the public's health.

Posted 2:25 PM by John Mikhail [link]

In the Eye of the Storm: Sunny Skies with a Chance of Chaotic, Violent Outbreaks

Bernard E. Harcourt

These are interesting times. Within the span of a week, both Cornel West and Slavoj Zizek have called for revolution in respected reviews. With the Tea Party maintaining its momentum at the other end of the spectrum—perhaps gaining momentum with Texas governor Rick Perry—it’s beginning to feel that we are oddly in a calm period with a threat of storm.

Cornel West’s op-ed on contemporary race relations in the New York Times was remarkable, if nothing else for the fact that the Times decided to print it. “Dr. Martin Luther King Would Want a Revolution,” that’s a bold title. Dr. West had a blistering splash at the end about “life and death confrontations with the powers that be”—to be sure, mellowed in between with more sedate policy advice (like supporting “progressive politicians like Senator Bernard Sanders of Vermont”). But the ending was truly fiery: “King’s response to our crisis can be put in one word: revolution. . . . Like King, we need to put on our cemetery clothes and be coffin-ready for the next great democratic battle.”

A few days earlier, in the pages of the London Review of Books, Slavoj Zizek published a fascinating analysis of the London riots—and of the Spanish protests, of the Arab Spring, and of the Greek meltdown—in an article titled “Shoplifters of the World Unite.” Zizek interprets the London riots as a form of chaotic, self-destructive violence in a post-ideological age. Frustrated by the contemporary condition of Western liberty—“What is the point of our celebrated freedom of choice when the only choice is between playing by the rules and (self-)destructive violence?” he asks—Zizek too concluded the piece on a fiery note: “to impose a reorganisation of social life… one needs a strong body able to reach quick decisions and to implement them with all necessary harshness.”

Meanwhile, at the other end of the political spectrum, Governor Perry is having book signings for his “Fed Up!”, a radical book that condemns Social Security as “a crumbling monument to the failure of the New Deal” and attacks climate change as “all one contrived phony mess.”

We are indeed living through remarkable times, in the shadow or perhaps swirl (behind or ahead of us) of economic uncertainty surrounding the Great Recession. There is a feeling of calm mixed with sporadic threats—reflecting a constellation of seemingly new developments.

It’s a period, after all, marked firstly by a massive amount of surveillance, an unprecedented degree of monitoring that is aimed predominantly at African-Americans and Hispanics. For instance, in New York City, in a period of remarkably low street-crime, the NYPD is engaging in unparalleled numbers of stops-and-frisks. Just last year, in 2010, the NYPD reported a record 601,055 stops-and-frisks, 85% of which were of minority residents. The City is on pace to bat over 700,000 in 2011. Where I live, in Hyde Park, the enhanced levels of surveillance are felt mostly by the new positioning of more than a dozen private security guards on the Midway to ensure our safe passage from one side of campus to the other—and increased police patrols of the campus neighborhood.

At the same time, at least in policy circles, the authoritarian fist of the state seems to have achieved unparalleled legitimacy. I’ve argued that it’s the product, in part, of neoliberal ideas—of the dominant belief that the government is incompetent when it comes to economic matters, but legitimate and competent in the area of policing and punishing. But it also has something to do with the fact that so many police chiefs have managed to take credit for the massive, national crime drop--credit which has greatly enhanced the legitimacy of law enforcement.

Meanwhile, we experience occasional outbursts of organized/chaotic violence. There are “flash mobs” in Philadelphia—random acts of violence perpetrated, apparently, by groups of young men who use social media to locate each other. Those mobs are being met by equally violent language from city leaders, including the mayor, Michael Nutter. Then there are riots in London and in the Parisian banlieus—in both cases, instigated by excessive police force and the death of one or more civilians, but in both cases now associated with chaotic excess. As Zizek writes, “It is difficult to conceive of the UK rioters in Marxist terms, as an instance of the emergence of the revolutionary subject; they fit much better the Hegelian notion of the ‘rabble’, those outside organised social space, who can express their discontent only through ‘irrational’ outbursts of destructive violence – what Hegel called ‘abstract negativity.’”

In Spain, the indignados protest the political system, and, as Zizek emphasizes, do so in an oddly a-political way--again, post ideology. The manifesto of Spanish indignados reads: “Some of us consider ourselves progressive, others conservative. Some of us are believers, some not. Some of us have clearly defined ideologies, others are apolitical…” This is evidence, Zizek suggests, that “Opposition to the system can no longer articulate itself in the form of a realistic alternative, or even as a utopian project, but can only take the shape of a meaningless outburst.”

It feels as if we are entering a new political environment that calls for interpretation and better understanding. This is true at home here in the United States, but it seems to be true in other Western countries as well. I’m calling it here “in the eye of the storm”—it is this feeling of calm, but with the threat of storm. I’ve no idea what the future holds, I’m not suggesting that there is a storm brewing. It could be that we stay in the eye for a long time. But there is an uncanny feeling. Cemetery clothes and coffin-ready… these words demand some reflection.

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Posted 10:01 PM by Bernard E. Harcourt [link]

Rick Perry: Right on Judges!

JB

No, this is not a Rick roll

Rick Perry apparently supports something like Paul Carrington's proposal-- joined by legal academics across the ideological spectrum, including Sandy Levinson and myself--for 18 year "term limits" for Supreme Court Justices.

"Term limits" is actually a misnomer. The proposal does not actually end life tenure for federal judges; rather, it provides for a new Supreme Court appointment every two years and states that the quorum for deciding cases on appeal consists of the nine Justices most junior in service.

More senior Justices can still participate in choosing cases for granting certiorari and they can also pinch hit when a more junior Justice is recused or otherwise unable to participate. Therefore we should almost never have 4-4 affirmances by an equally divided Court, as has sometimes occured in recent years. For example, if Justice Kagan were recused on a particular matter, the tenth most junior Justice in years of service (David Souter, who under this plan would not have needed to retire) would replace her.

The President and the Senate, knowing that there will be an appointment every two years, and that older Justices could still sit in special situations, would adjust the politics of judicial appointments accordingly. This might change the age at which people are nominated to the Supreme Court, and therefore increase the pool of available candidates.

As Carrington explains, it's possible to do this through ordinary legislation. There is nothing in the Constitution that requires that all of the Justices sit on every case; in the federal courts of appeals, all of the judges sit together only in a small number of en banc cases (in which judges on senior status normally do not participate).

For those of you who enjoy fantasy sports leagues, here's an example of how this model would have worked in practice, going back to 1951.


Posted 12:50 PM by JB [link]