Legal Theory Blog

Seto on the Call for a Boycott of U.S. News

At TaxProf Blog, check out Seto on the Proposed Boycott of the U.S. News Rankings. Seto's understanding of these issues is deep. See also his Understanding the U.S. News Law School Rankings.

Northwestern to Offer Two Year JD

I was interviewed yesterday by the Chicago Tribune for this story.  Assuming the Tribune story is accurate, Northwestern's program will include one initial summer term (similar to that offered by the University of Michigan), four traditional semesters, plus intersession courses.  In other words, the same units will be be reconfigured from the traditional three 8 month blocks (14 week semesters) punctuated by summers and winter breaks into one continuous 24 month block, with very short breaks.  Here is another way of looking at it: From start to finish, law school now takes 32 months with two winter breaks and two summer breaks, whereas the Northwestern two year program will allow completion of law school in 24 monts with no winter or summer breaks.

The Tribune indicates that Northwestern has not yet announced a tuition plan--but it seems unlikely that there would be any significant per unit reduction.  Making law school more intense--hmm?

Dorf on Griffin on Solum on Semantic Originalism

Michael Dorf reacts to Stephen Griffin's remarks at the AALS mid-year conlaw meeting, summarizing Griffin as follows:

As Griffin said, summarizing Larry Solum (about whose work Griffin has blogged at Balkinization) but not purporting to be stating his own views, given that the Constitution contains an amendment mechanism in Article V, there ought to be at least a pretty strong presumption against changing its meaning by other mechanisms. Here I’ll rehearse a couple of answers to this claim, mostly as an excuse to set out a thought experiment (point 2 below).

To set the record straight, this is not an argument that I make, either in Semantic Originalism or elsewhere.  Semantic Originalism does summarize the "writteness" argument made by Randy Barnett--which does bear a sort of family resemblence to the argument that Dorf reports that Griffin attributed to me.  (I was not in the audience I do not know what Griffin actually said, although it seems unlikely that he did in fact make such an attribution.)

The argument that I actually do make in Semantic Originalism is that the linguistic meaning (or "semantic content") of the Constitution is fixed at the time of constitutional utterance--I call this claim the fixation thesis.  My argument for this thesis is about the linguistic meaning of the constitutional text, and it simply isn't a claim about the content of constitutional law.  (I do make claims about legal content, but those claims are developed via the contribution thesis--the claim in normal (nonexceptional) cases, the linguistic content of the Constitution provides rules of constitutional law.)

Dorf offers a thought experiment which he believes engages his understanding of Griffin's report of my argument.  Here is the relevant passage from his post:

The basic argument is this: The Constitution is law because it was adopted by democratically legitimate processes, and so the meaning of the Constitution should be the meaning produced by those processes, rather than a meaning substituted for them by unelected judges.

The difficulty with this argument is its premise that the original act of ratification is what makes the Constitution law today. It doesn't. What makes the Constitution law today is the fact that it is accepted as law today. Imagine that, notwithstanding Ginsburg's data, the U.S. Constitution persists for at least another 10,000 years (by which time, according to Sen. McCain, the U.S. could still have troops in Iraq, but I digress). What would make the Constitution the legitimate law of the U.S. in 12,008, binding on our descendants and the intelligent metal bugs who have also been made "persons" by the 28th Amendment? The act of ratification in 1789? The very idea is ridiculous. To be sure, a consensus might exist that our descendants and the metal bug people look to the 1789 original understanding as a way of resolving constitutional disputes, but if so, that 12,008 consensus, not the 1789 ratification itself, will be the legitimating act.

At this point, it is unclear whether Dorf means to attribute this position to me, but I want to be explicit: I do not hold the position that Dorf identifies as "the basic argument."  Indeed, Semantic Originalism explicitly and directly states that I take no position on questions of constitutional legitimacy.  The position that I do make goes through a positivist claim (illustrated but not limited to the particular positivist conception of law articulated by H.L.A. Hart's idea of a "rule of recognition") that contemporary legal practice is consistent with the contribution thesis.

What about Dorf's conclusion--that the very idea that ratification in 1789 would be relevant to legitimacy in 12,008 is "ridiculous"?  Before I suggest that Dorf's analysis is incomplete--I want to point out that it is obvious that the status of the Constitution of 1789 as "law" or "legally valid" or as "operative legal content" in 12,008 would surely depend on social facts in 12,008--whether those social facts made ratification legally relevant would depend on their content.  It is surely possible that if the Constitution of 1789 were in effect in another ten thousand years, then the relevant legal rules would make ratification part of the story of its validity.  (This would be the reason why rejected it was the text of the Constitution of 1789 and not any rival proposal or any provisions rejected at the Philadelphia Convention would not be law in 12,008.)  That is, events in 1789 could obviously be relevant to legality in 12,008.

What about legitimacy?  On that score, Dorf's position is not (as he assumes) obviously true.  First, the concept of legitimacy is notoriously ambiguous.  On this, see Jack Balkin's recent post, "A Note on Legitimacy and the Functions of a Constitution."  As Jack observes, legitimacy has multiple dimensions, one of which "sociological legitimacy"--which, as applied to law inquires into the question whether a law is accepted as legitimate.  Of course, it is tautological that the sociological legitimacy of anything in 12,008 depends entirely on sociological facts as they stand in 12,008--that follows from the definition of sociological legitimacy.

What about normative legitimacy?  Dorf must realize that normative legitimacy is multidimensional and that there are a variety of theories of normative legitimacy.  For example, on Barnett's theory, the normative legitimacy of a constitution hinges entirely on whether it provides a reliable process for ensuring that minimum standards of justice are met.  On that conception of normative legitimacy, democratic ratification is simply irrelevant.  But as Balkin observes, some theories of legitimacy include a process dimension: on process theories, the legitimacy of legal enactments may depend on their pedigree.  And on democratic process theories, the democratic legitimacy of constitutional provisions may depend on whether the provision was adopted through a process that meets minimum standards for democratic participation.  If such a theory were the best conception of constituitional legitimacy (and I am not suggesting that it is), then the passage of time does not, by itself, necessarily undermine the democratic legitimacy of the Constitution.  Instead, the question might be framed as follows: Does a given constitutional provision meet the minimum standard of democratic legitimacy as specified by two considerations: (1) did the provision enter the Constitution by a process that allowed for sufficient democratic participation, and (2) do de facto conditions for maintenance of the constitutional regime allow for the regime to be replaced and/or the formal content of the constitution to be amended by processes that meet minimum democratic standards.  Given a view like this, ratification by democratic processes in 1789 might plausibly be viewed as relevant to normative legitimacy in 12,008.

As articulated, Dorf's argument is radically ambiguous.  He doesn't specify whether he means sociological or normative legitimacy, and if he means to refer to normative legitimacy, he fails to specify a conception of legitimacy.  Once the conception is specified, then events in 1789 may or may not be relevant to legitimacy in 12,008.

One final point.  Some normative theories of legitimacy make "legality" a constituent element of normative legitimacy.  Because social facts in 12,008 can make events in 1789 relevant to legality in 12,008, it follows that normative legitimacy in 12,008 might partially depend on events in 1789.

Read Dorf!

Kamin Asks Why SSRN Hasn't Displaced Law Reviews

Over at Prawfs, Sam Kamin asks why legal academics continue to publish in law reviews.  It seems to me that there are several reasons:

• One is that SSRN is not institutionally well suited for the role of permanent repository.  SSRN is actually a relatively small private organization that does not, so far as I can tell, have a continuity plan for its archives in case the organization should go out of existence.
• Another has to do with the comparative advantages of Westlaw and Lexis as search engines.  Google is great, but Google does not permit the full range of proximity operators available from Westlaw & Lexis.  Moreover, Westlaw & Lexis focus research on texts likely to be relevant, whereas Google generates considerable noise.
• Of course, there is also a certification function--law review placement inexcplicably confers certification (although this seems quite mysterious given the relative inexperience of the selectors).

There are surely many other reasons as well.

Anderson on the Two Cultures of Legal Scholarship

Check out Ken Anderson's The 'New Two Cultures' of Legal Scholarship: The Humanities and Social Science (A Note to Joe Singer) on Opinio Juris.  Here is a taste:

Fifty years ago, in the late 1950s, C.P. Snow published that famous essay decrying the gap that had grown up in his day between the culture of the humanities, on the one hand, and the physical sciences, on the other. The professors of the humanities were ignorant of science and basic facts about the technology of their own day, and above all they were innumerate. The scientists, for their part, had very little interest in the liberal arts, in literature, in philosophy (outside of mathematical logic). It seems to me that something like this divide of the ‘two cultures’ is emerging in legal scholarship – not between the humanities and physical science, of course, but between modes of explanation and method in legal scholarship, between the humanities and social science. Call it the 'new two cultures'.

Wright & Manne on the Future of Law and Economics (with an update in red)

Josh Wright has posted Part V of his series on the Future of Law and Economics, which includes a reply from Henry Manne.  Here is a taste of Manne:

I really do not think that we should be bothering in law schools with either teaching or research that in some ways does no make for better lawyers or for better legal scholars (not necessarily the same thing, but again there is convergence in the long run). I do not see any reason for the law reviews to be full of arcane economic jargon that will never be used by any practicing lawyer or comprehended by any sitting judge (with some very rare exceptions). And here I get to my main point. I think that most of that is the result of the very peculiar “market” forces that operate in universities and not from any thought-out rationale of making better laws or lawyers. (See my “The Political Economy of Modern Universities”). In other words, it is part of the general pattern of professors writing for each other and not for the outside world.

Read the entire illuminating post.  As readers of LTB might guess, I disagree with the "peculiar market forces" explanation for the orientation of most research towards an audience composed of other researchers.  An alternative hypothesis is that academic research is not oriented towards profit maximization at all, but instead is characteristically oriented towards the discovery and production of knowledge.  The goal is truth, not profits.  Of course, this doesn't mean that incentives don't play a role: they obviously do, and they include fame, honor, prestige, various academic perks, in addition to monetary incentives.  But in a well-functioning academic environment these incentives are aligned towards the production of knowledge and encourage scholarly excellence.

Manne actually grasps this point when he writes, "As you [Wright] and I agree, Law and Economics has been of extraordinary value to legal education. It took it out of the doldrums of anti-intellectualism and mechanical thinking about law, and made law schools respectable partners in the greater role of universities."  (After correspondence with Larry Ribstein, I am not sure whether Manne does (or does not) grasp or agree with the idea that well-functioning universities align incentives towards the production of knowledge & encouraging scholarly excellence.  Please read Manne's full remarks for a better sense of his point.)  The law and economics movement responded to the intellectual conundrum that post-realist American legal thought had created for itself.  Attempts to synthesize the instrumentalism of the American Legal Realists with a distinctive role for doctrinal law required that legal scholars make arguments of policy and principle: the "reasoned elaboration" that was the watchword of the Law and Process school is paradigmantic in this regard.  But the skills taught in law schools (case crunching and code crunching) do not provide a methodology for making rigorous arguments about the empirical effects of legal rules or the normative criteria by which they should be evaluated.  As law professors reached out to other disciplines to make such arguments, they began to see themselves as "translators," who could synthesize the output of other disciplines and incorporate it in legal scholarship.  The problem is that such translation requires training; without adequate knowledge of the other discipline, translations were bound to be garbled and incomplete.  When law schools are located in major research universities, these garbled translations can come to the attention of the home discipline--who may sit, for example, on university-wide tenure committees.  When legal scholarship consisted of code and case crunching, such committees had to defer to the expertise of law faculties and external reviewers on the quality of the work.  Not so, when the scholarship is itself normative theory, economics, or empirical.

The next natural step in the evolution of the legal academy was interdisciplinarity.  At the most basic level, interdisciplinarity involves rigorous training in another discipline.  The most effective way for law schools to acquire scholars with such training is to hire PhDs in other disciplines, although there are many successful examples of retooling.  The difficulty with the interdisciplinary model is that it creates centripetal force: scholars whose academic training is in another discipline such as economics are hurled away from the common enterprise of studying law and are attracted by the gravitational force of the values and prestige-hierarchy of their "home" discipline.  For this reason, the interdisciplinary model is potentially unstable, and Josh Wright's series of posts examines that instability in the context of law and economics.

If this diagnosis is correct, then the legal academy stands at a crossroads.  One can imagine a variety of possible futures.  Law schools might begin to realize that the study of law must become a distinctive multidisciplinary enterprise: this is the path taken by political science, where political phenomena are studies from a variety of perspectives, including rational choice & formal modeling, empirical studies, political theory, political history, and so forth.  Or one can imagine a return to the idea of law schools as professional schools that emphasize doctrine--although this would require an intellectual foundation that justified the return to doctrinalism.  Or perhaps the legal academy will segment itself--with most law schools returning to the trade school model that emphasizes the training of practising lawyers and the law schools of major research universities functioning to produce elite lawyers, legal academics, and multidisciplinary research.  Or something else.

When we think about the the future of the legal academy, time frame is important.  Big changes are likely to seem impossible--until suddenly they are conceivable, then starting, then already a fait accompli.  Our current thinking about the future of the legal academy is shaped by institutional forces and sociology of the status quo.  That means that most legal academics assume that the professional school model will be with us forever, but interdisciplinarity is also here to stay.  The tension between these two beliefs requires an elaborate set of rationalizations--about the value of rigorous interdisciplinary work to practising lawyers and the role of legally trained law professors as translators.  These rationalizations seem like obvious truths: they function as legal academic dogmas.  But there is a funny thing about dogmas: once your faith in them is shaken, they can suddenly be cast in a new light.  Obvious truths become superstitions.  "No one can doubt" becomes "no one ever really believed."

Part Four of Josh Wright's Series on the Future of Law and Economcis

Part Four of Josh Wright's series on the Future of Law and Economics is now up.  A taste:

[T]here is a profitable opportunity for the production of L&E scholars who will produce, translate, and retail accessible scholarship. This does not necessarily mean informal scholarship. It includes theorists and econometricians who understand and are interested in studying law and legal institutions, and who also have the ability to communicate with both economists and legal academics. Competition among empirical L&E types in law schools will intensify as these methods increase in value and entry level JD/PhDs find homes at top programs. But what about theorists doing relevant and accessible work? What about informal L&E scholars and economic theorists in the model of Coase, Alchian and Demsetz? What about price theory and the law in the spirit of Becker?

Who will train the next generation of L&E scholars?

For the answer, read Wright's post!

Congratulations

Congratulations to Randy Barnett (Georgetown), Richard Pildes (NYU), Richard Primus (Michigan), and Katherinve V.W. Stone (UCLA), who recieved Guggenheim Fellowships.  Barnett and Primus are the first holders of the "Constitutional Studies" Fellowship.  The full list of winners for 2008 is here.  (Thanks to Brian Leiter for the link.)

Communication from the Vanderbilt Law Review

I am passing along the following communication from the Vanderbilt Law Review:

It is the policy of the VANDERBILT LAW REVIEW to maintain approximately forty percent (five to seven articles) of our book space available for the fall 2008 submissions cycle. We recognize that an impression exists among many legal scholars that student-run journals intend to fill our books during this spring’s submission cycle. We wish to dispel that impression.

We will review fall submissions this year as thoroughly as we review spring submissions, just as we have always. This spring’s accelerated submissions cycle has strained scholars and affects us as well. We hope that restating our longstanding policy to review and accept a significant number of pieces in the fall can help return some balance to the submissions process.

We will continue to review pieces this spring and we will not arbitrarily reject a publishable piece solely because it is our practice to maintain fall submission space. But, we encourage authors still working on pieces to hold, polish, and improve those pieces that will be ready in the fall but are not ready for a spring submission.

We look forward to reviewing your work whenever we see it.

Open Access to Scholarship: Recent Developments and a Comment

Michael Carrol recently wrote about two significant developments in open-access to academic work.  Here is an excerpt from Carrol's contribution to the cyberprof listserv:

1. Harvard.

Yesterday, the Faculty of Arts and Sciences voted in favor of a policy under which each faculty member agrees to grant to Harvard a non-exclusive license to make their scholarly articles freely available through the institution's digital repository or otherwise so long as it is not done for profit. This is a pre-commitment strategy that means the license will have been granted prior to any copyright transfer to a journal publisher. When an article has been accepted for publication, the faculty member will have to alert the publisher to the previously-granted license. In many cases, this will also mean the publisher's copyright transfer form will have to be amended. Faculty can seek a waiver of the university's license on an article-by-article basis. This is big news because it's a bottom-up initiative driven by faculty authors. The mechanics of the pre-commitment strategy are not as new as they may seem. Every federally-funded researcher grants the funding agency a non-exclusive copyright license at the time the copyright vests as part of the funding agreement. For more information on the Harvard policy, see my blog www.carrollogos.com.

2. NIH.

In December, Congress voted to require that NIH make the author's final manuscript of any peer reviewed journal article reporting NIH-funded research publicly accessible over the Internet through PubMed Central not later than 12 months after the date of publication. Since universities are the recipients of NIH grants, it is the university that is contractually bound to make sure that (1) NIH receives the author's final manuscript (after peer review) when the article is accepted for publication and (2) a copyright license to make the article publicly accessible not later than a year after publication. The policy becomes effective in April, and universities are now scrambling to figure out how they're going to ensure that their faculty authors don't sign away too many rights under copyright such that the university is non-compliant with its grant obligations. (Non-compliance can result in a range of sanctions including ineligibility for future funding.) Again for details, see my blog.

For more, see Michael's blog,

I agree with Carrol's comments--these are interesting developments.  It occurs to me that scholarly associations (APA, APSA, AALS, etc.) could also play a role here.  Shouldn't all of these organizatoins be on record as favoring open-access scholarship and opposing closed-access policies by scholarly journals?