The Constitution is in Exile

One of the small mercies of the past few months is that because I'm paternity leave, I am not teaching Constitutional Law right now. Even before the election I was dreading having to incorporate Trump v. United States into my syllabus. Obviously now, things are much, much worse.

When I was in law school, conservatives spoke of teaching about "the constitution in exile" -- the true and proper legal order that for decades had been flouted and suppressed by the courts. Of course, what they meant by that was a world where Social Security was unconstitutional. But today I think it is fair to say that the constitution is, truly, in exile. 

The upper ranks of the federal judiciary is controlled by a cabal with complete and utter contempt for the most basic constitutional values that are meant to guide this nation. Lawless disappearances, dictatorial executive power, impunity for corrupt officials, sabotaging of democratic elections -- it's all here, and it's all embedding itself into the official accounts of constitutional law as recorded in U.S. Reporter. In the foreseeable future, the prospects of undoing these decisions, or even stemming further decay, feel grim. Certainly, legal arguments don't seem likely to save us.

It is tremendously, tremendously depressing to feel as if the "law" one imparts on one's students is irrelevant; that no legal argument they can make, no matter how well-warranted or justified, will make a difference in legal outcomes if the powers-that-be prefer something different. Robert Bolt once characterized the essence of law as "a causeway upon which so long as he keeps to it a citizen may walk safely." When rule of law breaks down, this causeway turns into a mirage -- the citizen (to say nothing of the visitor or resident alien) who tries to keep to it is acutely aware that it might disappear under his feet at any time. The constitution that was supposed to guarantee us the ability to walk safely is, practically speaking, no longer present. It has been exiled, replaced by an usurper.

So what does one do as a constitutional law professor? I've always believed that my primary job, albeit not my only job, is to teach my students what the law and doctrine is, as it is declared by the Supreme Court. This view of my role is not in contrast to taking a more critical perspective -- to the contrary, the point is that foundational knowledge is a prerequisite to any effective critique. One has to know what the law is, in order to know whether the law is good, right, or should remain the law at all. Those more normative conclusions are for my students to draw for themselves; but it is absolutely in my ambit to give them the resources to make those critical judgments.

That view has not changed. But going forward, it will be even more important to contextualize the law as its being articulated today in terms of other possibilities and roads not taken. The law that we have is not something inalterable or inexorable; it is a choice. There are other choices. What are the reasons behind the choices that were made? What are the arguments for making different choices? Which choices fit better inside the broader corpus of legal values and commitments that were meant to guide the American constitutional project? And if we do currently live in a legal order that lies decisively outside the proper constitutional vision, what results? 

There isn't, I think, any need to be didactic about this. The original "constitution in exile" proponents had faith that simply laying out their alternative vision of what the constitution should be would suffice to gain them acolytes. I have similar confidence that the articulating the actual constitution -- the causeway of safety meant to guard us from predatory abuses and overreach -- will earn similar loyalty. And I do not know how long it will take for this constitution to return from its exile. But one must have faith that with enough support and enough commitment from persons who retained their faith in the rule of law, it will return, and will bring its just reckoning.

The Exceptions Aren't Exceptional, They're Just Bad

A few days ago, an academic journal run out of the University of Minnesota apologized after informing a would-be contributor from Israel that it was refusing to consider submissions from scholars affiliated with Israeli universities.

Today, the Columbia Law Review website is down, reportedly due to the publication of an article by a Palestinian legal scholar on the "Nakba" that occurred in the wake of and as part of Israel's war of independence and its establishment as an independent state. We're still getting details, but the word is that the law review's board of directors (comprised of faculty and alumni) sought to overrule student editors who wished to publish the piece and, failing to do so, took down the website.

I've really found valuable and thoughtful Paul Horwitz's comments on cases like this, and so too here. In particular, I agree with him that it's not right to refer to the Columbia incident as part of a Palestine "exception" to free speech or academic freedom, not because it isn't a breach of academic freedom norms (it certainly seems to be), but because it isn't especially exceptional -- whether we're focused narrowly on Israel and Palestine (as the Minnesota case, above, illustrates) or more broadly on "controversial" topics and issue areas.

I am certainly disturbed by the action of the CLR leadership in simply eliminating the entire article, along with the website, even if it is eventually published. The notion that there is a unique "Palestinian exception" to free speech norms or academic freedom is absurd, in light of numerous other occasions on which writers, editors, publishers, and others have engaged in censorship and self-censorship on numerous hot-button subjects over the years. But I am hardly comforted by the possibility that it is one more exception. And it would be no more comforting if the exception were better seen as a general "controversial subject" exception.

It is quite clear that speech that is harshly critical of Israel quite regularly faces sanction and obstruction that does not comport with free speech or academic freedom norms. But that's not an exception, that's an instantiation of a larger part that free speech and academic freedom norms have many fair-weather friends and so find themselves under serious pressure on the regular. This isn't to say that they don't do important work -- they do, and a lot of speech that probably would be suppressed ends up being permitted because these free speech principles do carry a lot of weight. But the notion that they are impenetrable juggernauts who only rarely and idiosyncratically find themselves challenged is just not true. One reason I try to defend these norms so vigorously is precisely because I recognize that their fragility is the norm, not the exception.

In general, I think I have a more positive outlook towards student-edited law journals than Paul does, and so generally take a dim view of any sort of faculty or administrative meddling in journal affairs (the notion that a faculty or alumni-comprised committee has any role beyond, perhaps, the most soft-touch advisory capacity, in determining what articles the Columbia Law Review does or doesn't publish is absurd to me). So it should come as no surprise that I also strongly agree with Paul that even if there were reasons to think that the student editors acted in a fashion that departed from their own normal rules or processes in accepting this article (which may or may not be true), any interventions that hypothetically might have been justified cannot take the form of an ad hoc, last minute decision to pull the piece from publication altogether.

Indeed, assuming that this article is slated to be part of CLR's print volume, I'm not sure what the board of director's end game is here -- are they going to pulp the entire issue? Even if the article is bad, wrong-headed, offensive (and I haven't read it, so it may be none or all of these things), I see no reason why any of those (for better or worse not especially exceptional) sins cannot be addressed via the normal mechanisms of academic inquiry and response. Prior restraint is not the right move. And if the Columbia board did what it is alleged to have done here, it is shameful and outrageous -- no less so if it is not "exceptional".

UPDATE: The Columbia Law Review board has issued a statement explaining why it took down the website. On my read, nothing they say justifies the decision. The only thing that's potentially eyebrow-raising is the claim that the piece was not selected via the normal article-selection process. But this probably (though not certainly) has less than meets the eye: it is hardly unheard of for a law review to solicit a piece outside the normal article-selection channels, which easily could be (but really shouldn't be) called a departure from the "usual processes of review or selection." For example, when I was a law review editor most pieces went through the articles committee (which I was on), but our book review editor had essentially carte blanche authority to solicit book reviews on his or her own initiative. While there might be some valid basis for complaint if this article was unusually sequestered from (actual, extant) norms and practices of how articles move through the CLR process, such problems do not to my mind justify the extraordinary remedy of taking down the website. The short version is that even if (and this not clear) there are valid process-based objections to what (some members) of the Columbia Law Review did here, that does not mean that taking down the website is an appropriate remedy. As Alexandra Lahav wrote in a thoughtful thread, sometimes events transpire such that there just isn't a way to "preserve the status quo ex ante."

One thing that hasn't been mentioned but which I think may be lurking in the background here is the recently announced boycott of Columbia University graduates by a suite of right-wing judges who've made very clear their intention to inflict collective punishment on the Columbia community for (real or perceived) bad behavior by particular actors. Threats like this understandably could make members of the Columbia Law Review who were not part of (and were not given the opportunity to be part of) the publication decision especially sensitive -- they have reasonable basis to fear they will be held responsible and retaliated against for choices they did not make and might not have even been aware of. I'm sympathetic to those students, but ultimately, the people who have put them in that position are the judges and other actors who have decided to endorse indiscriminate academic blackballing as a political tactic. As much as these students are being put in an unfair position -- and they are -- the board should not have cowered in the face of this blackmail. The principles of academic freedom are too important to be allowed to yield even in the face of a credible threat of external retaliation -- this is true when the boycotters are right-wingers furious about pro-Palestinian advocacy, and it's true when the boycotters are left-wingers livid about Israeli inclusion.

Are Red State Universities Starting to Feel the Pressure? An Anecdotal Account

As a member of academia, I periodically get inquiries from other law schools asking if I'm interested in lateraling. This is quite flattering, though I know full well that such messages aren't only being sent to me and that there is a long road from "email of interest" to actually getting a job offer.

Recently, though, I've noticed that the schools making such inquiries of me are disproportionately located in deep red, southern states. It could be a statistical artifact, of course -- I don't get so many solicitations so as to negate the possibility of random clustering. But it does make me wonder if the decaying political climate in those states means that these schools are experiencing more pressure in terms of faculty outflow, which they're trying to replace via laterals.* 

Both the specific anti-academia initiatives (crusades against "controversial topics"; attacks on tenure), and the broader threat to political and civil rights (abortion bans, threats to democracy) that are characteristic of these states make working there -- and to be clear, I hold the universities in question in the highest esteem -- a far less attractive proposition. And from the other side of the fence, serving on our school's appointments committee this year it did seem to me like we were getting an uptick in "red state refugee" lateral applications -- though again, that's just an impression, and I have no data to back it up. For another bit of anecdotal evidence, see Sapna Kumar's recent interview explaining why she elected to leave Houston Law for the University of Minnesota.

I'm curious, though, if others are noticing this pattern as well. Other junior law professors -- are you getting disproportionate interest from "red state" schools? Any other sense that these schools are indeed facing faculty outflow pressure?

For what it's worth, I'm very happy in Portland and at Lewis & Clark, and have no interest in decamping anywhere. My wife and I have bought a house, we've settled down, I like my students and my colleagues, I've got the course package I want -- life is good and I see no need to mess with a happy status quo.** But my wife and I have also decided that, even beyond any generic inertial resistance, we're in particular not interested in moving to schools in places where our basic rights don't feel secure. We're at the phase of life where we're thinking of starting a family, and doing that in a place where pregnancy turns my wife into a vessel for the state would be horribly unfair to her. And for my part, I teach constitutional law -- a course that, rumor has it, sometimes veers into "controversial topics". I don't want to go to jail because some yahoo right-wing prosecutor decides I'm teaching Roe and Dobbs wrong.

* It might say something about my professional self-esteem that I assume the only reason these schools would be interested in the likes of me is that they're in the midst of a political crisis.

** All that said, I want to be very clear that if Harvard Law School wanted to entice me to move to Cambridge by tripling my salary, they can feel free to mess away.

Law vs. Antisemitism Conference 2023: Call for Papers

 CALL FOR PAPERS: 2^nd Annual Law vs. Antisemitism Conference (2023)

Lewis & Clark Law School, in association with the Lewis & Clark Law Review and the Law vs. Antisemitism Project, are proud to sponsor the 2nd Annual Law vs. Antisemitism Conference, to be held March 26-27 at Lewis & Clark Law School in Portland, Oregon. Conveners are David Schraub (Lewis & Clark), Robert Katz (Indiana University), and Diane Kemker (Southern University). The keynote speakers will include Eric K. Ward, Executive Director of the Western States Center and one of the nation’s foremost experts on the connection between antisemitism and White supremacy, as well as Steven M. Freeman, Vice President of Civil Rights and Director of Legal Affairs for the Anti-Defamation League. The Conference will begin on the afternoon of Sunday, March 26, and run throughout the day Monday, March 27, 2023.

The conference is interdisciplinary, and we welcome submissions on the intersection of law and antisemitism from academics and practitioners of all backgrounds and all statuses. Selected articles presented at the conference will be published as a symposium issue in Volume 27, Issue 4 of the Lewis & Clark Law Review (forthcoming in 2023).

Possible topics for conference presentations and papers may include, but are not limited to:

• Contending definitions of antisemitism itself (International Holocaust Remembrance Alliance (IHRA), Nexus, Jerusalem Declaration on Antisemitism (JDA))
• Legal history as it relates to the regulation of Jewish immigrants and Jews in colonial and antebellum America
• Title VII and employment anti-discrimination law as a tool against antisemitism
• Antisemitism in the legal profession
• Intersections of antisemitism and anti-trans or homophobic movements
• Jewish involvement/antisemitism in civil rights movements, including BLM
• Holocaust reparations
• First Amendment speech issues (hate speech online and elsewhere, Holocaust denialism)
• First Amendment religious freedom issues as these relate to Jews and Judaism, including Establishment Clause and Free Exercise Clause controversies
• Implications of recent Supreme Court decisions on abortion, guns, education, religious liberty, or other matters as they relate to Jewish equality
• Jews and Whiteness, Jewish Anti-Black racism/Black antisemitism
• Antisemitism and White nationalism/White supremacy
• Antisemitism and antisemitic laws in American legal history
• Intersectional issues (Jews as a religious/ethnic group; LBGTQ Jews; Black Jews, Jewish women)
• The use of zoning and land-use law by and against Jewish communities, the regulation of physical space for Jews in America
• The history of Jewish lawyers and organizations involved in impact litigation in cases involving Jews and others
• The legal relationship between anti-Zionism and antisemitism
• BDS and Israel boycotts on campus and by state/local governments, international boycott law as applied to Israel

If you are interested in presenting, please submit a one-page Abstract to lawvsantisemitism2023@gmail.com. Any questions can be sent to the conference organizers at dschraub@lclark.edu, rokatz@iupui.edu, and/or diane.klein@sulc.edu. Abstracts will be reviewed on a rolling basis but are due by October 1, 2023. We hope to be able to offer some travel grant support to cover expenses associated with attendance at the conference (plane/train fare, hotel, childcare) for persons who lack institutional sources of funding.

If you are interested in having your paper considered for the Law Review symposium issue, please indicate this in the abstract. Authors seeking to have their paper included in the symposium issue should have a full draft completed by February, 2023.

Law vs. Antisemitism Project Workshop for Legal Educators: Sunday, March 26, 2023

The 2nd Annual Law vs. Antisemitism Conference is part of a larger project which includes the development of a law school course in law and antisemitism and the creation of a first-of-its-kind casebook to support the course. If you are a legal educator and would be interested in participating in any part of this project, including Syllabus and curriculum development, casebook chapter creation or review, please consider arriving early to join the Workshop. If you are interested in participating in the Workshop, please indicate this in the email accompanying your Abstract, or send a separate message to Diane Kemker (diane.klein@sulc.edu) no later than October 1, 2022.

A Matter of Opinion at NYU

The NYU Review of Law & Social Change, a secondary law journal at NYU, has announced it will be implementing an academic boycott of Israel (it has been condemned by the NYU and NYU law administrations). In doing so, it said two things which should be juxtaposed -- not hard, since they remarkably come in successive paragraphs. First:

[The journal will boycott] Academic activities, projects, or publications “based on the false premise of symmetry/parity between the oppressors and the oppressed or that claim that both colonizers and colonized are equally responsible for the ‘conflict’ . . . .” We find such efforts to be “intellectually dishonest and morally reprehensible forms of normalization” that must be boycotted.

Second:

The academic boycott is an institutional boycott “[a]nchored in precepts of international law and universal human rights,” and “rejects on principle boycotts of individuals based on their identity (such as citizenship, race, gender, or religion) or opinion.” [emphasis added]

So the journal won't boycott a scholar based on his or her "opinions", except insofar as their "opinion" takes the form of proposing ill-defined "symmetry", in which case it "must be boycotted". Roger that.

In fairness, the journal is quoting from the PACBI guidelines here, so its incoherence is not fully its own.

Anyway. Among the calls of the journal is for NYU to shut down its longstanding collaboration with Tel Aviv University, and it says it will refuse to participate in any programs which are "convened or cosponsored" by TAU or other "complicit Israeli institutions" ("complicit", here, is a three-syllable word for "all", albeit with some inchoate amount of room for fudging attached). Query what would happen if NYU Law simply had all of its affiliates (no need to single out Tel Aviv University -- NYU Abu Dhabi, Madrid, and all the rest can play too) provide some pro forma contribution to cosponsor all its events for the year? Could be interesting.

My Advice To Law Students: Become an RA!

Many law professors have been going around giving their advice to new law students, particularly those who don't come from a lawyering family and don't necessarily have a ton of familiarity with how law school operates. All the advice is useful, but here's one tip I haven't seen promoted before: become an RA (research assistant), preferably for a professor who does work you're interested in and whose class you either have already taken or plan to take. It almost certainly will not and should not be a full-time gig; ideally, it should be for just a few hours each week.

Now, as a law professor, obviously this advice seems to be a bit self-serving. And maybe it is (though I already have an RA, so it doesn't do me any good for more people to want to be RAs). But I think it's good for students too, for at least two non-obvious reasons:

(1) It gives you an advisor. I attended an undergraduate institution where every student was assigned a faculty advisor. When I got to law school, I just kind of assumed the same policy would be in place. Spoiler: it isn't. Nobody is your advisor, and there isn't any obvious opportunity to find someone to answer the generic advising questions that you'll have over the course of your law school career: "Should I do law review?" "If I work at a firm, am I stuck there forever?" "Is it bad if I take a class that sounds interesting but doesn't have any 'real world' applications?" Being an RA gives you ready-access to a professor and is easily converted into an advising relationship. In general, if you ask if you can run through some general questions in the ten minutes following your RA meeting, they'll be more than happy to oblige.

(2) It is of massive help in writing letters of recommendation. I will confess: it is very hard to write letters of recommendation for students whom I only "know" because of their presence in my doctrinal classes. Even if they perform well, I have basically two data points about them: (a) their exam performance, and (b) the one time they were cold called (which probably happened in the second week of term and has long since faded from my memory). It's really difficult to take that and write a letter that doesn't seem horribly rote and formulaic. By contrast, professors get to know their RAs personally and can speak about their capabilities in a much more specific and intimate fashion. It is very likely that the professor whom you RA for will become your strongest letter writer, even if they didn't give you your highest transcript grade.

All of this exists on top of the more obvious reasons to become an RA (enjoying research, being interested in the subject matter, resume line, etc.). But becoming an RA is the easiest and fastest way to develop a close relationship with one your professors, and that benefit is of incalculable worth as you move through law school.

My Encounters with Richard Epstein

Apropos of current events, I thought I might share my three encounters with Richard Epstein.

Normally, I'd say "interactions" rather than "encounters", but in this case it would not be accurate -- there was no "inter-", as I never got a word in edgewise.

The first time came while I was sitting in the University of Chicago Law School common area (Epstein was for many years a University of Chicago law professor, though these days he's more associated with NYU and the Hoover Institute at Stanford). The law school cafe does not have pizza, but that day I had gone to the main food court on campus to pick up a few slices which I had brought back to the law school to eat. Epstein spotted my pizza as he was walking across the room and, without breaking stride or taking a breath said something like the following:

Where did you get that pizza I like pizza you can't get good pizza around here it's not like New York maybe I'll get some pizza for lunch!

Despite the fact that the opener was at least nominally addressed as a question to me, he never glanced backwards and I never had a chance to speak. By the time he was finished with his train of thought, he was halfway across the room and out of earshot anyway.

The second encounter came while I was sitting in on a faculty workshop featuring a presentation by Bernard Harcourt (now at Columbia) on 19th century French grain market regulations (or something like that). Harcourt is a good old fashioned Foucault acolyte, which made him stand out a bit at Chicago in general, and the thesis of this paper was that there was no such thing as market "deregulation" only "reregulation", which made him a target of Epstein in particular. Epstein asked him how it could be that there was no such thing as "deregulation" -- what if you just repeal all the regulations? -- and Harcourt responded by saying that the market is its own form of regulation that can have just as much disciplining effect, so "repealing" the regulations just results in a different form of regulation emerging. This answer was not satisfactory to Epstein, and they went back and forth along this vein for a bit -- is this deregulation or reregulation? -- until Epstein got frustrated and exclaimed "well that's just a semantic game." And Harcourt responded, with the perfect serenity of a continental political theorist:

"Everything is just a semantic game."

Reports were that it was the only time most of Epstein's colleagues had actually seen him rendered speechless.

The third encounter was also at a faculty workshop, this one for M. Todd Henderson, a corporate law professor and bastion of the law school's right flank, whom I happened to know idolized Epstein. I forget what Henderson was presenting on, but it must have been some way of de-(or re-?)regulating corporate law so as to minimize the government's role, and one could tell from the puppy eyes that he was hoping for Epstein's approval. Alas, it was apparently still too much government for Epstein, who went on a sustained rant that concluded "and then we're on the path to totalitarianism!" All of Epstein's comments on the papers of others concluded with that, but Henderson was still crushed.

Finally, while not an "encounter" per se, there was a running joke around the law school while I was there, to the effect that if Richard Epstein wrote the Constitution it would have only one amendment which would read "Congress shall make no law." In a similar vein, his known status as a polymath who worked in a dizzying array of legal subfields was thought to be counterbalanced by the somewhat "thematic" link tying together the contribution he was said to bring to all of them: if it's communications law, abolish the FCC. If it's election law, abolish the FEC. If it's health care law, abolish the FDA. If it's environmental law, abolish the EPA .... you get the idea.

What's In Peer Review For Me?

UCLA Law Professor Stephen Bainbridge continues to decline peer review requests from law reviews (for friends in different disciplines, law is unique in that nearly all of our scholarly journals are run by law students -- up to and including article selection. A few top journals have started to move towards a "semi-" peer review system where they solicit comments from outside academic reviewers, typically to supplement their own internal deliberations. I give a qualified defense of the law review system here). This is a blast in the past for me, as Bainbridge's initial broadside came against the University of Chicago Law Review shortly after I left that august institution (see my guarded comments here).

Bainbridge has several reasons for not participating, but he devotes an extended amount of time to a discussion of self-interest, featuring an guest appearance from Adam Smith:

Why on earth would I ever want to review an article for them? To be sure, there are things one supposedly does for free for other law schools because they are for the good of the profession. Writing tenure letters springs to mind. Yet, while doing so is for the good of the profession, it can also be personally beneficial. If I write a tenure review letter for your tenure committee, the members of that committee will feel obliged to return the favor when I'm chairing our tenure committee and need outsider reviewers. Professors at other schools read my brilliant tenure review and conclude they should hire me instead of promoting the candidate. I take the job offer to the Dean and she gives me a raise. And so on. But what possible benefit do I get from giving a review to bunch of kids who may or may not end up in law teaching? I'm a rational economic actor. My time is valuable. There are opportunity costs entailed in responding to your request. "It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity, but to their self-love, and never talk to them of our own necessities, but of their advantages." So make it economically rational for me to respond affirmatively.

Actually, this made me think of one reason someone in Bainbridge's position might want to participate in peer review: to influence the window of prestigious legal scholarship in a direction more amenable to his scholarship (and more generally, ideological predilections).

It is a common complaint of conservatives in academia that one barrier to their success is the hammerlock the left-wing majority has over article selection -- supposedly elevating mediocre (but ideologically congenial) leftist scholarship while knocking out good conservative contributions. I don't know if Bainbridge feels this way about the areas he writes in (corporate law), but presumably even shorn of a partisan valence Bainbridge has a vested interest in facilitating a match between scholarship is thinks is actually good and that which deemed "good" via the signal of elite article placement. At the margins, this could help in quite directly (by making his own scholarship more closely resemble that which is considered to be cutting edge), and at the very least it offers a benefit to his ideological school (to the extent he cares about such things). When Bainbridge declines to review articles for top law journals, the reviewer they replace him with may be one with very different views on what makes for a good corporate law piece. The net effect will be to push the contours of well-regarded scholarship in his discipline away from Bainbridge's preferences.

Of course, this sort of analysis is another way of saying that "self-interest" -- defined broadly enough -- can include a whole host of "good for the profession" (or community, or society) values. But that seems to reflect a sociological observation that those most keen on quoting Adam Smith are often those most blind to that sort of "self-interest". If conservatives decline, on grounds of "self-interest", to partake in "selfless" acts of professional courtesy like providing peer reviews, and liberals -- more amenable to doing things for good of the community -- take their place, well, each may reap what they sow, and the corresponding ideological state of "elite" scholarship perhaps shouldn't surprise us.

I Have Some Terrible News About What Law Schools Do

A prominent clinic at the University of North Carolina law school looks likely to be functionally shuttered after a committee of the UNC Board of Governors voted to bar it from representing any future clients. The Center for Civil Rights, which enjoyed the strong backing of campus leaders, had drawn the ire of conservative forces in the state when it took cases in contentious environmental, land use, and racial segregation controversies.

This is a huge blow to academic freedom, as it is beyond evident that the center is being attacked because of its perceived politics. But the attempts to justify the decision in neutral or even pedagogical terms is, if anything, even more pathetic. Here's how one official justified his vote:

[Marty] Kotis, a real-estate developer and UNC-CH alumnus, indicated that he thinks lawsuits in general are a waste of money and that people should look for other ways to resolve conflicts. Putting the center out of the business of representing clients is “simply about reducing the amount of litigation out there,” he said.

Marty, I have some terrible news for you regarding what law schools train aspiring lawyers to do.

Another official -- this one a lawyer -- took almost the precise opposite stance of every boomer-complaint about impractical law schools and their Ivory  Tower cloud-headedness to say that law schools should offer no clinical practice whatsoever. "A law school is one thing; a law firm is another thing," he said, and then suggested that the only role of the former is to aid students in coming "to a deeper understanding of the philosophical roots behind each case and the cultural implications they have." Speaking as someone very much on the theory side of the theory/practice legal spectrum, I nonetheless am stunned to see such a full-throated dismissal of the practice side of legal training from a practitioner.

While there remains another vote to be taken, most observers expect that the end of the Center for Civil Rights' days representing clients is nigh. That's a major blow to UNC's law school -- not just because it is losing a well-regarded clinical center, but because it emphasizes the entire school's vulnerability to political piques from well-connected outsiders. A law school -- a university -- cannot function as it is meant to in such a case.

Honoring Jesse Choper

Last night, I attended a retirement party for Jesse Choper, the Earl Warren Professor of Public Law at UC-Berkeley. Jesse has been an active teacher for a remarkable 54 years, starting at the University of Minnesota in 1961. He moved to Berkeley in 1965 and has been here ever since (including a stint as Dean from 1982 - 1992). So while Jesse is known around the country as one of America's preeminent constitutional law scholars, it is no surprise that here in the Bay Area he is known more simply as "Mr. Boalt".

Of the literally hundreds of people who came out for Jesse's retirement party, it is probable that each of us could have given a meaningful personal toast. Of course, in that group of luminaries I rank pretty low in the pecking order. But here on the internet I can give my own toast, which while probably just a drop in the bucket of accolades Jesse has received throughout his career, is nonetheless the very least I can do.

Of all of Jesse's colleagues, I think I can say with a fair amount of certainty that I am the latest. I arrived a Boalt last year as the inaugural Darling Foundation Fellow in Public Law, and I had the tremendous privilege of being the coordinator for Jesse's final class -- a workshop in Public Law that focused on the Roberts Court. I got to know Jesse throughout the term as we selected the list of invitees and later attended the weekly talks, and so was able to experience first hand many of his noteworthy quirks. Not only does he drink white wine on the rocks, but he does so with such regularity that -- upon arriving at Saul's (our local Jewish deli) -- he need not say a word before a glass has already reached his table. I can also verify that he is a singularly happy figure -- on his daily strolls to the faculty lounge for coffee, I do not believe I've ever seen him without a smile on his face.

Since this was to be Jesse's last class, and since I had known him all of a few months, it would have been easy and understandable if I had faded into the woodwork of the thousands of students, staffers, and colleagues Jesse has worked with over his career. But that did not happen. Jesse took an immediate interest in my work and my career, offering to read and comment on drafts and put in calls whenever one of us spotted an open position. Perhaps more meaningful, he also asked me to read and comment on his work. Admittedly, this was quite intimidating, given that I was not even on the tenure-track and Jesse has literally 50x my experience in constitutional law. But it was also quite important to me. Many senior faculty members are aware of and cheerfully fulfill their obligation to comment on their junior colleague's work, but it doesn't always occur to them to run their own ideas past the juniors. Yet an important part of growing into this role and no longer seeing yourself as an impostor whose law school grades and mastery of big words duped a few people into giving you a faculty office is getting the sense that others value your opinion too. That Jesse Choper -- author of Constitutional Law: Cases, Comments & Questions and Judicial Review and the National Political Process -- wanted my opinion on his work was possibly the most important thing he could have done to make me feel like a true colleague.

Even having been here for barely over a year, it is difficult to imagine Berkeley without Mr. Boalt. There is a part of me that is very skeptical that we'll see much of a drop in Jesse's frequent strolls to the faculty lounge. But regardless of whether he's in the building or not, it is evident that his spirit has penetrated the law school deeply. I was privileged to have worked with him, I am privileged to know him, and I look forward to continuing as his colleague and friend well into the future.

In Defense of Law Reviews

As I get ready to take the plunge into graduate-level political theory, I've had to start thinking a little more about peer review. Peer review is, of course, what most academics consider to be the sin qua non of academic publishing; if it is not peer reviewed, then it might be utter gibberish for all we know. Law professors have a bit of an inferiority complex on this issue, as we have a unique publication process that does not include peer review. And peer review isn't the only difference between the disciplines: law articles are notoriously lengthy, notoriously footnoted, and notoriously go through a frenetic multiple-submission/expedite process to find their eventual home.

Recently I've been getting a little more exposure to the peer review process -- through a refereed conference (and follow-up journal special issue) and by developing contacts with professors in other disciplines who, just like law professors, love to gripe about the shortfalls and pitfalls of their own publication process. I've also had the opportunity to read more peer-reviewed articles -- primarily in political theory, public philosophy, and psychology -- and compare them to what I typically find in a law review. And the more I think about it, the more I think the law review system -- which is viewed with incredulity by essentially every non-law professor I've ever described it to (and by many law folks too) has a lot to say for itself.

Let's list what I take to be the key distinguishing characteristics between legal academic publishing versus the general norms:

• Most law articles are selected by second- and third-year law students on various law journals. They are usually not blinded. My understanding is that sometimes upper-level graduate students can serve as peer-reviewers, but mostly the reviewers are other professors in at least a related field studying a blinded manuscript. 
• Law reviews are much longer than peer reviewed articles. A "short" law review piece (~20,000 words) would be considered quite long in most other disciplines. Law review articles also have a tremendous amount of footnotes.
• Law articles are typically accepted or rejected "as is". Rejections come without any comment or feedback. Peer review offers a continuum of responses (accept, conditional accept, revise and resubmit, reject), and authors receive the reviewer comments.
• It is customary for draft law articles to circulate on sites like SSRN even before they're submitted for publication. This is a shakier proposition in other disciplines, as some peer-reviewed journals will outright refuse to consider a piece that has been "published" on such an online repository.
• Other disciplines submit articles to one journal at a time; moving on to the next one only after a piece is finally rejected at the journal it's currently in front of. Law review articles are submitted to multiple (often upwards of one hundred) journals at once. They move through the selection process via "expediting" -- the initial offer to publish (and deadline for decision) is forwarded to all the higher ranked journals, who then race to make their own decision. If a higher-ranked journal decides to make an offer, the process continues. Repeat until the deadline expires or no higher-ranked journal remains to expedite.
• Related to the above, law articles have a much faster turnaround from submission to acceptance.

So which of these is better? In my view, the goal of an effective publication process should be (a) to produce good articles, both in terms of making novel and effective contributions to their field and in terms of being informative and helpful for other members of the academy, and (b) to place articles roughly according to their merit -- that is, the best articles should be in the top journals, the pretty good articles should be in a pretty good journal, and so on.

On these fronts, I think law reviews perform alright. In terms of overall quality, I'd first observe that I see little difference in the strength of the articles published in the top half or so law reviews versus those published in a typical peer-reviewed context. The fact that there are so many law journals does mean that one starts to see some real iffy contributions towards the bottom of the chain (though to be fair, I've seen some utter dreck in the peer-reviewed world too). But the offerings of reputable law journals are I think every bit as strong as those of equivalent peer reviewed outlets.

I also think the internal distribution of articles is more or less on point. An article published in Harvard or Yale or California or Chicago strikes me as being as likely to make a big interdisciplinary splash as those in the flagship journals of other disciplines. And outside of that, I feel like most articles I read feel roughly rightly-placed vis-a-vis their merits. I know with respect to my own work that I've generally been pretty content with where my pieces have ended up -- sometimes I think an article underplaced a little, sometimes overplaced a little, but never wildly off-kilter with how I perceived its overall merit.

That law reviews actually do a pretty decent job selecting for quality may be surprising, given the lack of peer review. People often comment on how terrible it must be for untrained law students to hold so much sway. But the thing is most people undergoing peer review don't seem to have a ton of confidence in peer reviewers either. They're replete with horror stories about articles badly butchered or barely read at all. Basically, it sounds to me like most folks undergoing peer review are repeatedly rolling the dice until they get a reviewer who is generally sympathetic to their aims and committed to giving their piece due consideration.

Of course, that broadly describes law reviews too -- we all know that many of our submissions are barely skimmed or are rejected for reasons that, if articulated, would make us want to scream. In other words, both peer review and law review submissions require two things: the piece has to be up-to-snuff quality wise for the selected venue, and then you also have to get lucky and have it be read by the right type of reviewer.

And this is where law reviews' multiple submissions scheme is really good. As much as we like to agonize over it, I think it's fair to say that journals fall into broad "buckets" of prestige within which they're relatively interchangeable. There are exceptionally good journals (Yale, Harvard, Chicago, California, etc.), very good journals (Minnesota, BU, BC, GW, Notre Dame, etc.), quite good journals (Arizona, Florida, George Mason, Georgia, etc.), and so on. I imagine the same is true in other disciplines. And most of us, if we're being honest, have a decent idea of where our articles deserve to be in that pantheon. Now, let's say that in each "bucket" there is one journal that has that lucky confluence of a good reviewer who will give your piece its due. If you're submitting sequentially, it might take up to ten tries before you hit that jackpot (and that assumes you haven't lost faith about how good your piece is). But with multiple submissions, it doesn't matter if nine of the ten relevant journals reject your piece without reading it; you only need the one offer. Placing the piece in front of every journal at once means you get to pull the slot lever of every machine. The multiple submission process may be frenetic, and it certainly isn't perfect, but I believe it does a faster and more efficient job of matching articles to their proper academic homes.

Finally, I'll forward a proposition that I think will be quite controversial but I'm willing to defend: the structure of legal publishing produces better articles. The jabs against law review articles are that they're long and excessively footnoted. The former doesn't bother me at all; I just view legal articles as replacements for the books we don't write. The latter is probably a sop to the student editors who are not, of course, experts in the field. But that's a good thing too: one great thing about legal scholarship is that it is generally relatively accessible to novices. If I'm trying to learn about a new area of law, I can pick up pretty much any article in the field and will be greeted with a buffet of relevant sources and explanations that make it easy to quickly pick up the basics of what they're talking about. This is very different from other disciplines, where if you don't come in with a pretty healthy grounding to start you'll be utterly lost within four pages. I think this is attributable to the fact that while other academics write for one audience -- fellow specialists in their subfield -- legal academics write for two. We do write for a subcommunity of specialists, but we also write for the intellectually curious amateur, a/k/a, the law review editor. And I think keeping that second audience in mind produces scholarship that is more lucid, more practical, more cogent, and ultimately more meritorious than that which is found elsewhere.

Now, none of this is to say that peer review lacks for benefits. But some of these (like blind review of manuscripts) could be easily incorporated into the law review process. And others (like reviewer comments) probably cannot be, but are easily replaced by the norm of pre-publication distribution of SSRN drafts and other like ways of soliciting feedback on papers before, during, and after the publication process.

Law professors often lack doctorates, and so we sometimes feel like step-children to the "real" academy. But I think we should buck up. I think the state of legal scholarship is actually quite strong. It produces quality articles, and sorts those articles in rough accord with their merit, and it channels scholarly writing in a direction that I think is more accessible and effective than that which prevails elsewhere in the academy. Our bizarre, idiosyncratic, unique system of publication is actually something we can be quite proud of.

DePaul Center for Jewish Law and Judaic Studies

DePaul Law School's Center for Jewish Law and Judaic Studies had an interesting conference recently where several prominent Jewish law professors talked about how their Jewishness affected their outlook on law and legal scholarship. It sounded like a fascinating program -- I wish I had still been in the neighborhood and was able to attend (I lived very close to DePaul Law my 3L year).

Unfortunately, Randy Barnett reports that the center is close to shutting down due to a lack of funding. This would be a true shame. If you're in a position to donate and help keep them going, it would do the world -- Jewish and otherwise -- a great deal of good.

Weekend Roundup: 01/04/13

Busy times at work, but yet I've actually been more productive as a blogger than normal. Weird. Anyway, clearing the browser windows a bit:

An exceptionally entertaining story about ex-Rep. Roscoe Bartlett (R-MD), who used to represent western Maryland before being gerrymandered out, and his efforts to go off the grid. "The oddest Congressman" indeed.

Hussein Ibish to people who try to leverage the story of Jesus to favor Israeli Jews or Arab Palestinians: Stop it. You're being stupid and you don't understand how history works. Just stop it.

Omar Khadr, convicted of throwing a grenade at American soldiers during a battle in Afghanistan, now is trying to get a normal education.

A fascinating blog about a recent law grad who (after being no-offered by his sumemr firm) is now selling perfume at a department store. Sometimes, when I reflect on my job, I think "that could be me" (mostly with relief, but admittedly occasionally with wistfulness).

Things People Blame The Jews For, Volume V: Law (Schools)

I have begun my trek into the world of legal practice, but it is important to remember my roots as a legal academic. Specifically,, a Jewish legal academic. Oh, does that rub some people the wrong way [http://vnnforum.com/showthread.php?t=78280]:

They’re barely two percent of the population, but research indicates that jews occupy slightly more than half of the teaching slots at America’s top ten law schools. (By ranking of U.S. News & World Report, these are: 1. Yale; 2. Stanford; 3. Harvard; 4. Columbia; 5. NYU; 6. Chicago; 7. Berkeley; 7. Michigan; 7. Pennsylvania; 7. Virginia.) The same people who give you the endless song and dance about overrepresentation of white males in every sector they haven’t yet commandeered for themselves have nepotistically positioned their racial crime syndicate to decide who becomes a power player in 21st-century AmeriKwa -- and they breathe not a word of this prodigious legal enormity to the mass public. The simple fact is, jews and people trained to think like them exercise an effective monopoly over the legal profession. In a country in which you can hardly pick your nose without counsel, that fact is grounds for some very serious thought about where we’re headed, and what’s going to be left of normal whites like you and me when we get there.

VNN researched the matter online (you can verify all the findings, the names and pictures, online at vnnforum.com ). This was easy to do, since all these schools list their professors by name. It is clear from the very look and feel of these sites that the attitude of the folks training our top lawyers is the same as the jewish business owner who said, “I only hire jews, women, and gays.” Normal white males need not apply, and the ones who do attend these schools, are either self-hating liberals to start with, or bent that way after Prof. Selznik’s “words mean what they have to” course. Simply look at the graphics used by these top ten schools to see the future this type envisions: women and coloreds and jews, with nary a white male to be found. This is the utopia the jew prepares for our race. When they say “abolish,” they mean it. White genocide is very plainly the agenda of the jews who control our law schools.

Of course, this raises tantalizing questions about my own exit from an academy that was apparently built for my own personal pleasure. Was I expelled as a dissident from the Elders' orthodoxy? One would think my anti-discrimination law focus would have kept me safe from charges of apostasy. Maybe the problem was the opposite, my lack of subtlety? Or perhaps it was random caprice -- sometimes, a random zag is the best way to throw folks off the trail. Regardless of the explanation, one can be sure it is nefarious.

The Fatal Flaw of Brandeis University

The latest element of the Sandra Fluke walking disaster for the right controversy is that her boyfriend is ... Jewish. Socialist Jew Brandeis University Marxist Jewish Socialist Unionizing Jew (to be precise). Fluke's connection with this Brandeis-affiliated Jewy Jew

begs the question… if you’re so connected to the Mutterperl family, Sandra, why not go to Brandeis, a school much more aligned with your worldview, instead of Georgetown University, a Catholic Jesuit school? Are you admitting that a Christian school is better than a neo-Marxist school, or is there some other agenda?

Indeed, what an interesting question! Why would Ms. Fluke prefer to attend Georgetown for law school rather than Brandeis University? An implicit concession of the inferiority of the leftist worldview? A natural aversion to associating with those unionizing Christ-butchers? A subconscious desire to cleanse herself of sinfully wicked lustful desires -- or a guerilla campaign to introduce such decadent ways amongst the faithful?

Or perhaps -- just perhaps -- it's because Brandeis University doesn't have a law school. Good news for the University of Louisville, bad news for the coherence (such as it is) of the conspiracy.

7 Days for 7 Journals

I submitted Sticky Slopes yesterday to about 60 of the nation's finest law journals (I'll push that number up closer to 75 as several late bloomers complete their turnover). I've already achieved the first critical milestone of any submission season -- the first rejection (here within less than 24 hours) -- so that's out of the way (and I must admire the speed at which the journal in question completed their review of my 29,000 word article. No, I won't mention who it was -- wouldn't want to embarrass them).

But I was thinking about the emergent trend we're seeing in some journals to abide by a 7-day expedite window, where they commit to giving authors at least 7 days to make a decision. The effect is to give authors a reasonable amount of time to gain expedited review from more prestigious journals. It's something authors have been clamoring for for some time as expedite windows have been shrinking to absurdly small time-frames (I've heard of 2 hour windows, and even rumors of demands to accept or reject on the phone), but one understands why the journals have been reticent.

1) It's basically giving authors greater opportunity leave them for greener pastures, and there is no clear benefit to the journals for playing nice. One could argue that it helps their reputation, but there is no real evidence that authors actually are putting their money where their mouth is and preferring journals which provide generous expedite windows.

2) Even if journals were inclined to be altruistic, there is a race to the bottom -- journals are afraid of being outcompeted by peers which play hardball.

For these reasons, most of the journals which have agreed to the 7-day window are relatively top-tier reviews that, frankly, don't see a lot of their pieces stolen by reviews higher up the chain.

One proposal I have for fixing this -- or at least partially solving the collective action portion of it, anyway -- is for journals to agree to a 7-day window, but only for expedites to journals which have themselves adopted the 7-day expedite window policy. So if the #50 ranked journal adopts this policy, it would say authors have 7 days to accept an offer from any higher ranked journal which itself provides 7 days to make a decision, so long as it agrees to withdraw from all journals which do not have that policy (or withdraw from those journals after, say, 2 days). This would encourage the journals higher up the ladder to sign on to 7-day policies, as they would be reaping concrete benefits.

Of course, these sorts of withdrawal demands may seem difficult to enforce. But it seems like deals like this happen with some regularity -- schools agree to extensions on offer windows on the condition that the author withdraw their submission from all but a few agreed-upon law reviews.

Anyway, all of this is getting ahead of myself with Sticky Slopes -- dealing with expedite chains is a problem I at the moment only dream of facing. But the policy idea seems sound to me. Thoughts?

Yes, EEOC, There is a Ministerial Exception

The Supreme Court has just issued its opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In a 9-0 decision, the Supreme Court reversed the 6th Circuit and held that Cheryl Perich, a "called" teacher at the Hosanna-Tabor school, was a "minister" and thus her suit was barred under the so-called "ministerial exception" (which generally exempts religious organizations from anti-discrimination laws in employment decisions relating to persons who serve in a "ministerial" role). Though the ministerial exception had universal acceptance amongst the lower courts, this actually marked the first time the Supreme Court had officially ratified its existence.

The opinion itself (written by Chief Justice Roberts) is extremely, almost comically, narrow, refusing to go much beyond a determination that Ms. Perich was a "minister" for purpose of the exception, and thus that her suit was barred. It didn't give much, if any, of a standard for how to determine if a given person counts as a minister, and even was cagey over which sorts of suits are barred by the exception. Justice Thomas' concurrence was a little more concrete, saying that courts should simply defer to a religious body's good-faith determination regarding who was playing a ministerial role, and Justice Alito (joined by Justice Kagan) cautioned against relying too heavily on whether a person went through any formal ordination process (as many religions do not have such procedures).

Faithful readers may remember I gave a brief talk on this case as part of a panel at the law school. I am pleased to report that, like any self-respecting constitutional law professor, my prediction (an affirmance on narrow grounds) was completely off the mark.

Post-Panel Recap

I spoke on a panel today. Myself and two other faculty members picked a case before the Supreme Court this term, and talked about it (background, analysis, predictions, etc.). I picked Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a fascinating case about the ministerial exception in the First Amendment.

Basically, the ministerial exception allows religious organizations more-or-less free rein in the hiring and firing of clergy -- particularly, as against anti-discrimination law. So, if a synagogue fires its Rabbi, and she alleges sex discrimination, that case is just thrown out irrespective of the facts. The rationale behind the exception is that the Free Exercise clause, if nothing else, requires that religious bodies be allowed to choose who serves as their own minister. The government in effect telling the synagogue "no, you have to hire/keep on this Rabbi to serve as your spiritual leader" is incompatible with First Amendment protections. And while one could make an argument that such logic cannot survive Employment Division of Oregon v. Smith (holding that the Free Exercise clause generally does not require religious exemptions from generally applicable laws), the ministerial exception appears to remain on steady footing.

There is a big caveat to the above, however: the ministerial exception has never been ratified by the Supreme Court. It is a creature of the federal appellate courts, and while every circuit now accepts its existence, until Hosanna-Tabor the Supreme Court never heard a case on the subject. The reason behind that isn't hard to see -- intuitive as the ministerial exception is in principle, it can be devilishly difficult to apply in practice. Who counts as a minister? How deep into the payroll does it extend?

Hosanna-Tabor deals with a teacher at a Christian school who, on the one hand, taught secular subjects and had an almost-exclusively secular job description, but on the other hand was considered a "called" teacher and a "commissioned minister" at the school and church, and did do some religious functions in addition to the school's intended mission as being infused with a spiritual mission from top to bottom. Should her ADA retaliation claim be barred on the exception? Saying yes means potentially excluding huge swaths of employees from the entire thrust of anti-discrimination law protections. Saying no means answering some exceptionally difficult line-drawing problems regarding who does count as a "minister", and risks entangling the court in religious doctrinal disputes that may be the key factual controversies in why a given employee was terminated.

The talk went quite well, though I continue to be unhappy at just how much my public speaking skills have degraded over the years. My fellows spoke on the warrantless GPS tracking case and the notorious fleeting expletives case (as a professor, one relishes the chance to use various swear words in an academically sanctioned setting in front of scores of students). So hopefully, a good time was had by all.

Hey, Wanna See Something Cool?

Say hello to David Schraub, Visiting Assistant Professor of Law.

The Perfect Bar Question

"Is the statute unconstitutional?"

(A) Yes, because of the non-delegation doctrine.

(B) Yes, because of the 14th Amendment's Privileges and Immunities clause.

(C) Yes, under the 3rd Amendment.

(D) No.

And with that, I hereby resolve to not think of the bar again (until I find out if I pass -- which won't be for months).