On March 23, the Supreme Court heard arguments in Walker v. Sons of Confederate Veterans, a case presenting the question of whether the State of Texas must produce license plates bearing the Confederate flag (alongside more than 400 other specialty plates Texas offers, including one promoting a hamburger chain). As my colleague Garrett Epps writes in TheAtlantic.com, the case poses the question whether there are First Amendment limits to "government speech" -- to what the government itself may say using its bully pulpit (including license plates), and to how the government may decide what it says and what it does not.
The State of Texas allows drivers to choose from hundreds of specialty plates, many bearing the logos of colleges or service organizations, some promoting commercial products (like the aforementioned hamburgers), and some communicating clearly political messages, like "Choose Life." The Sons of Confederate Veterans want Texas to produce a license plate bearing the name of their organization and a depiction of the Confederate flag. (I was surprised to learn that nine other states, including my current state of Maryland, already allow this.) Texas doesn't want to print the plates, on the understandable ground that the Confederate flag is a divisive and, for many, an offensive symbol. But this would amount to the state's picking and choosing which messages to print on its license plates, based on controversial criteria. Clearly the First Amendment does not allow the state to pick and choose which private speech it will punish or reward based on the viewpoint presented by that speech. Can the state engage in this sort of censorship when the entity being censored is, in essence, the state itself?
As Garrett writes in his piece, current SCOTUS doctrine suggests that states are free to engage in this sort of self-censorship -- that "government speech" is a sort of First-Amendment-free zone (so long as government does not impermissibly endorse religious views), in which government is free to pick and choose what it says based on viewpoint or other content. For many, though -- including, I suspect, several Supreme Court Justices -- the result of applying this "anything goes" principle to the Walker case would be disturbing. The power of government speech is awesome, because the government has so much money to spend on communicating its message and controls so many forums for communication (not just license plates, but also airports, public buildings, buses, subway trains, etc., etc.). If the government can always decide which messages it likes and communicate only those messages, the result could be a serious distortion in the information available to the public and thus in the terms of public debate about important issues.
On the other hand, the implications of not allowing Texas to censor the Confederate flag are themselves distasteful. If Texas must issue a Confederate-flag license plate, what's next -- a swastika plate? A plate endorsing al Qaeda? As Garrett writes, it can't be the case that government must air all opposing viewpoints every time it communicates a message. When the National Park Service reminds us that "Only You Can Prevent Forest Fires," it doesn't have to follow up by saying "Forest Fires Are Fun for the Whole Family" (this of course is Garrett's clever imagery, not mine).
So the case looks like a tough one. The first thing the court has to decide is whether communications on license plates really are government speech, rather than a "public forum" like a public sidewalk or public park. It's clear that the government cannot engage in viewpoint-based censorship of private speech occurring in a public forum; Texas could not allow (say) the NAACP but not the Sons of Confederate Veterans to hand out literature in the public park. Is the material on "specialty" license plates really just private speech in a public forum?
This is, in my view, the most difficult aspect of the Walker case. On the one hand, it's pretty clear that license plates are not traditional forums for public expression, like streets and parks. They are, first and foremost, administrative documents -- tools for serving a particular ministerial function of government, namely identifying registered motor vehicles. Unlike the open spaces that serve as traditional public forums, license plates are a creation of the government, which the government could choose to eliminate at any time (if, say, RFID technology makes license plates obsolete) without creating a free-speech problem.
On the other hand, the state governments have complicated matters by creating these "specialty" plates and allowing them to be used to communicate nontrivial private messages (e.g., "Choose Life" rather than simply the University of Texas logo). By doing so, the states arguably have transformed license plates into so-called "limited" public forums, meaning locations in which private speech is allowed at certain times and for certain purposes. If license plates are limited public forums, then the state need not allow them to be used for private speech -- but once it does allow this, it cannot pick and choose which speech to allow based on viewpoint.
The Walker case might well turn on whether SCOTUS thinks specialty plates are limited public forums or rather simply examples of government speech. In order to decide the latter, the Court would have to conclude, I think, that the State of Texas typically (not just in really controversial cases, like this one) exercises discretion regarding what messages to allow on its license plates and what messages not to allow. That might demonstrate that specialty plates are not really private speech in a limited public forum (and thus immune to viewpoint censorship), but rather are government speech that happens to be prompted and supported by private actors. There is a parallel here to religious "endorsement" cases decided under the First Amendment's Establishment Clause, in which the Court has held that religious displays on public property can qualify as government speech endorsing religion, even if they were donated by a private organization. The Court's approach in the Establishment Clause context has been very fact-specific, focusing on the history of the display in question and how it would be perceived by a reasonable observer. The Court might apply a similar approach in Walker; but if it does so, the very fact-specific nature of the decision would invite further litigation over specialty license plates in other states, where the underlying facts might turn out to be crucially different.
If the Court holds that specialty plates in Texas are government speech, not private speech in a limited public forum, then I think the case becomes relatively easy. I agree with Garrett Epps that the current "anything goes" approach to government speech probably is not sustainable, and so I hope the Court doesn't simply apply that approach to rule in favor of Texas. But I think there is a narrower principle upon which the Court could draw to decide for Texas in the Walker case: the Court could rule that Texas's censorship of the Confederate flag is justified by the state's compelling interest in avoiding communicating a message of racial hierarchy or divisiveness.
In a deeply entrenched series of cases going back to Brown v. Board of Education in 1954, the Court has held that laws or other government policies that are intended to send a racist message -- a message that black schoolchildren are inferior to whites in Brown, or that blacks are not fit to marry whites, as in the antimiscegenation law struck down in 1967's Loving v. Virginia -- are unconstitutional even if they provide "equal" treatment in a material sense. In Brown, for example, the separate schools for black children maintained by the Topeka school district were physically as good as the white schools, but the Court invalidated segregation anyway -- because of the message of racial hierarchy that it communicated. When the government itself communicates a message of racial hierarchy, the Brown Court held, it is that message itself that is the unconstitutional harm.
If the government causes constitutional harm when it communicates a message of racial hierarchy, then the government has a compelling interest in not communicating such a message. And there is a strong argument that by posting a Confederate flag on its license plates, Texas would be communicating a message of racial hierarchy, which is a message that many people quite reasonably associate with that symbol. In refusing to issue Confederate flag plates, then, Texas would simply be avoiding the greater constitutional harm that (Brown and its progeny tell us) it would be committing by distributing those plates.
This reasoning is relatively narrow (a quality that might attract the more centrist Justices on the Court), in that it offers a way to avoid the slippery slope. Confederate flag plates send a message of racial hierarchy, but most other messages states regularly print on their specialty plates -- even politically controversial ones, like "Choose Life" -- do not. The Court thus would not be declaring that states may decline to print "Choose Life" plates, or that they must also print "Celebrate a Woman's Right to Choose" plates if they do. The logic of the decision would be limited to the principle embodied in Brown, Loving, and similar cases: that government endorsement of racial hierarchy is a constitutional harm that must be avoided.
Of course, the logic I'm suggesting might have implications for the nine other states that currently allow Confederate flags on their license plates (not to mention for Mississippi, which is the sole remaining state to incorporate the Stars and Bars into its state flag). If government displays of the Confederate flag communicate a message of racial hierarchy, then these states probably are (and Mississippi certainly is) violating the Equal Protection Clause by displaying that flag. I say "probably" because courts in these hypothetical future cases might find that those states' specialty plates are not in fact government speech, by the fact-specific inquiry I suggested above. And it might be possible to find in some circumstances that the meaning of the Confederate flag has become so diluted by context that it no longer embodies a message of racial hierarchy (although I am deeply skeptical of this reasoning -- particularly as applied to the flag of a state with the history of racial injustice that Mississippi has).
And of course the Court might not buy my logic. (I haven't studied the Walker case enough to know whether any of the litigants actually suggested such an approach.) If it doesn't, the Court might simply reaffirm the current notion that anything goes when it comes to government speech -- though in doing so, I think the Court would simply be putting off the inevitable need to rein in that principle eventually. Or the Court might hold that Texas's specialty plates aren't government speech at all, but rather private speech using a limited public forum. The implication of this latter holding inevitably would be to require Texas to produce the Confederate plates. Distasteful as that may be, it's far from the worst outcome one could imagine. The principle of freedom of speech includes the principle of tolerance even of speech we find deeply offensive, and so the Court should always err on the side of speech rather than censorship.
Monday, March 30, 2015
Friday, March 6, 2015
The role of legal scholarship in legal education, Part I: a primer for beginners
This post introduces what I suspect will be a recurring topic on this blog. (Hence the "Part I" in the title.) That topic is the relationship between legal scholarship (which I will tentatively define for the moment as non-client-subsidized research and writing about the law or the legal system) and legal education (by which I mean the system of educating future lawyers in American law schools). It is a topic that is near and dear to my heart, and to my pocketbook, which makes it all the more frustrating that I don't yet have a very good handle on the many difficult issues relating to the topic, much less on how to resolve them.
A couple of law professors at the University of Florida, Jeffrey Harrison and Amy Mashburn (neither of whom I know personally), recently posted a draft of a provocative paper about the topic. The paper reports the results of an empirical study which suggests, as I read it, that much or most legal scholarship does not influence the decisionmaking of judges; that most of the people who cite legal scholarship are other law professors; and that most of the time these other law professors choose which articles to cite based, not on the substance or merits of their ideas, but on the prestige of the journal (think Harvard Law Review) or of the author. The authors of the paper also briefly assess two potential justifications of legal scholarship -- that it produces "benefits" and that it is a "public good" in the economic sense -- and suggest reasons to doubt these justifications, based in part on the results of their empirical study. And they offer some suggestions for reform of the way legal scholarship typically is published and funded that they think might help make it more beneficial.
There is much to be said about the Harrison and Mashburn paper, some of which has already been said and lots of which I am not qualified to say. Rather than dig into the merits of the author's study and their normative arguments, however, I want to use their paper here primarily to sketch some background about the general topic -- the relationship between legal scholarship and legal education. At the end, I'll offer some tentative big-picture principles for assessing the topic, which I hope to support, refine, and test in subsequent posts.
First, some background for readers not intimately familiar with legal scholarship or legal education. Most American law schools are peculiar hybrids between trade schools and graduate schools in the liberal arts. Most law students attend law school -- at a high financial cost -- because they want to become practicing lawyers, and with very few exceptions it is the case that one must have a law degree (usually a JD -- juris doctor -- or a foreign equivalent) to practice law in the United States. So law schools train most of their students for careers in, if you will, a trade. Moreover, the vast majority of most law schools' operating expenses come from student tuition, meaning that if law schools did not offer what is perceived to be at least adequate training in the trade of being a lawyer, they would cease to exist.
At the same time, most American law professors -- the people doing most of the teaching in these law schools -- are more or less full-time academics, not full-time (or even part-time) lawyers. Here the exceptions are more numerous and more significant. Many "full-time" law professors also engage in extensive law practice, either pro bono or for paying clients. And every American law school of which I'm aware relies on many "adjunct," or part-time, professors to teach mostly specialized courses, most of whom are practicing lawyers or sitting judges. Still, the typical American law professor spends relatively little of her time actually practicing law, and many spend no time doing so. So the principal teachers of American law students -- most of whom want to be practicing lawyers -- are themselves not practicing lawyers in any real sense.
In some respects this seems silly. Why is American legal education structured this way? Shouldn't practicing-lawyer-wannabes be taught by actual practicing lawyers? Silly or not, it is probably unavoidable, or at least eminently understandable. Teaching and practicing law are not the same; they involve different sets of skills. It is difficult to become (and remain) very good at one while also becoming (and remaining) very good at the other. Part of the reason for this is time: busy practicing lawyers have limited time available that they can devote to other pursuits, like preparing a good lesson plan, keeping up with developments in pedagogy, and meeting with students. So it is natural that a professional class of law teachers would develop on a separate track from the professional class of lawyers -- even though most American law professors also have law degrees. (Indeed, this is true in other areas of education as well, so much so that it is unremarkable. Think of your high-school biology teacher. He or she probably was not an active professional biologist; does that seem strange to you? Probably not -- because it's easy to understand that the job of teaching biology to class after class of hormonal teenagers is itself a full-time job.)
Add to this the fact that law professors also have the opportunity to do something else that is difficult to accomplish while holding down a full-time practice, namely scholarship. Practicing lawyers have relatively little time to research and write about the law, and their need to uphold the interests of clients (actual and potential) limits the range of topics they can research and write about and the substance of what they can write about those topics. Full-time law professors typically are not subject to the latter limitation, and although theoretically they could be subject to the former limitation -- teaching and related activities conceivably could take up all their time -- in actuality most of them are not, for reasons I'll discuss later on. The opportunity to devote significant professional time to research and writing about interesting legal topics is what attracts many law professors away from practice and into legal education. Many law professors -- I count myself among them -- find it personally more rewarding to engage in deep intellectual exploration of intriguing legal issues than to (say) draft page-limited, client-driven court briefs or negotiate million-dollar contracts. And of course there are other attractions to the academic lifestyle, such as schedule flexibility and freedom from the worry that the client will phone at 4:55 on Friday afternoon with a problem that needs to be solved by Monday.
So it is understandable, and may have been inevitable, that American law schools would come to rely primarily on full-time legal academics to train the lawyer wannabes who pay the law schools' bills. And now we begin to see the faint outlines of the problem as it relates to legal scholarship. The outlines can be brought into clearer focus by adding some details to the picture.
The first detail is the relative dearth of external funding for legal scholarship. Medical schools (for example) also have full-time faculty members that spend a lot of time on research; but most of the funding from that research comes from outside sources -- the government, private foundations, industry. In contrast, relatively little funding for legal research comes from outside sources (that is, sources outside the law school itself). The reasons for this are complex, and I'm not sure I fully understand them, but they probably include the facts that the results of legal scholarship rarely have an obvious cash value, and that legal scholarship often (indeed usually) is explicitly normative -- arguing for or against a particular state of affairs -- rather than descriptive (like medical research), thus making the dangers of funding by private industry (law firms, clients) too salient.
Bottom line, then: legal scholarship has to be funded primarily by law schools themselves, which means from tuition dollars. It's important to note that legal scholarship is not nearly as expensive as, say, medical research; it rarely requires outlays for expensive equipment and support personnel. The cost of legal scholarship is, if you will, primarily opportunity cost: a law professor who is taking her paycheck in part to do legal scholarship is not spending that portion of her time doing something else (say, teaching). Still, that cost might be rather high, relatively speaking; Harrison and Mashburn estimate it at 25% of faculty salaries, which would work out to well over $1 million per year at most law schools. And this cost, remember, is supported at most law schools almost entirely by student tuition income.
The second detail is the peculiarity -- some would say pathology -- of how the activity of legal scholarship has developed among American law schools. American legal scholarship is strange in so many ways that it's hard to know where to start. It is unusual in the typical length of the units of legal scholarship, law-review articles, which usually run between 15,000 and 30,000 words and are heavily footnoted. It is unusual in the review and editing process for these articles, which with a few exceptions is performed by law students. (So second- and third-year law students are deciding whether to publish work written by experts in the relevant fields.) And it is unusual in the number of journals available in which to publish: each of the roughly 200 U.S. law schools has at least two journals, and many have quite a few more, so that the total number of student-edited law journals is probably at least 500 (I haven't actually counted), most of which publish multiple issues each year and include between two and five articles in each issue.
These unusual features converge, and interact with other dynamics in the legal academy, to create what we might politely call "issues." There are thousands of "spots" in law reviews that have to be filled each year, creating a strong incentive for students at many journals to publish bad scholarship. (The students don't need to worry about selling the journals they edit -- no one buys them; they just want to get credit for an extracurricular activity.) Add to this the fact that the student editors are, well, students, and thus not always in the best position to tell the bad scholarship from the good. And so lots of bad law review articles get published every year.
Why do law professors keep cranking this stuff out for students to publish in journals that few people will read? For one thing, publication in some law reviews -- the elite ones, roughly the top 20 or 30 -- is quite prestigious; it can bring professional recognition to law professors and can enhance the reputation of their schools. Law professors care about their professional recognition because it figures into institutional decisions on things like tenure and promotion (and also because law professors, like most people and perhaps more than many, like to be well-regarded). Law schools care about their reputations because rankings like that in U.S. News & World Report typically weigh "reputation" heavily in their formulas, and prospective tuition-paying law students (and donation-wielding alums) typically pay close attention to the rankings. Partly for this latter reason, publication of law-review articles is required for tenure and promotion at most law schools. (Why the law-review article, rather than some other form of legal scholarship, became the base unit for assessment of scholarship in the American legal academy is a mystery to me. I suspect the accidents of history and the outsized influence of the Harvard Law Review as legal education developed in the early 20th century have something to do with it. But I digress.)
Meanwhile, the length of law-review articles has its own perverse effects. It is, frankly, difficult to read all the way through most 25,000-word, 300-footnote law-review articles. This creates an incentive for busy student editors of law journals to rely, not on the actual quality of a submission (which they're unlikely to be well-suited to judge anyway), but on external cues about quality, like the prestige of the author or of her home institution or alma mater. It also deters the people who evaluate law professors' scholarship for tenure, promotion, and other purposes -- chiefly other law professors -- from carefully reading that actual scholarship, leading them to rely on many of these same imperfect external cues. And it undoubtedly deters members of the potential audience for legal scholarship -- practicing lawyers, sitting judges, policymakers -- from paying much attention to that scholarship. (Most of them have better things to do than wade through 300 footnotes.)
All of which brings us to the third detail, the one that motivates articles like Harrison and Mashburn's and that animates the much-larger, introspective discussion of which that article (and this blog post) are part. American legal education is in the midst of a financial crisis that may be unprecedented in its history. The number of high-paying jobs for lawyers has gone way down in the past decade or so, while law-school tuition has climbed, resulting in a steep decline in applicants to law schools, resulting in a decline in law-school enrollments, resulting in a decline in tuition revenues and thus in law-school budgets. So law schools have to compete for students to an extent that they have not had to do before. And not for just any students, but for good students -- the ones capable of doing well in law school, graduating, passing the bar, and succeeding in practice. But law schools have less money with which to compete for these students -- less money for scholarships, and less money to develop innovative educational programs that can prepare students for the changing legal market.
Which brings us -- whew! -- to the debate over the role of legal scholarship in legal education. Legal scholarship is an obvious target in the current climate, because (a) it costs quit a bit of money (mostly in the form of opportunity cost), and (b) its benefits (to society, to law students, to practicing lawyers) typically are not salient. Why not eliminate, or substantially reduce, law schools' support for legal scholarship (by, e.g., reducing law professors' salaries, or increasing their teaching loads)? This is the rather obvious question that triggers the rather predictable debate.
So let me bring this lengthy post to a close by suggesting a handful (eight at the moment) of basic principles (really propositions at this point) that I think should frame this debate going forward. I hope to further develop these principles in future posts -- and I reserve the right to amend or supplement them liberally.
ADDENDUM: And a ninth principle/proposition occurs to me:
9. Legal scholarship must change if it is going to survive. I think it's likely that the changes will be in the direction of shorter works, more immediacy, engagement with a broader audience, and more attention to real-world application, although not all successful examples of legal scholarship will have to push all of these buttons. There may also be a trend in the direction of more peer review, which may pose some tension with some of these other developments. In any event, I suspect the reign of the student-edited law review is nearing its end.
As I said, stay tuned.
A couple of law professors at the University of Florida, Jeffrey Harrison and Amy Mashburn (neither of whom I know personally), recently posted a draft of a provocative paper about the topic. The paper reports the results of an empirical study which suggests, as I read it, that much or most legal scholarship does not influence the decisionmaking of judges; that most of the people who cite legal scholarship are other law professors; and that most of the time these other law professors choose which articles to cite based, not on the substance or merits of their ideas, but on the prestige of the journal (think Harvard Law Review) or of the author. The authors of the paper also briefly assess two potential justifications of legal scholarship -- that it produces "benefits" and that it is a "public good" in the economic sense -- and suggest reasons to doubt these justifications, based in part on the results of their empirical study. And they offer some suggestions for reform of the way legal scholarship typically is published and funded that they think might help make it more beneficial.
There is much to be said about the Harrison and Mashburn paper, some of which has already been said and lots of which I am not qualified to say. Rather than dig into the merits of the author's study and their normative arguments, however, I want to use their paper here primarily to sketch some background about the general topic -- the relationship between legal scholarship and legal education. At the end, I'll offer some tentative big-picture principles for assessing the topic, which I hope to support, refine, and test in subsequent posts.
First, some background for readers not intimately familiar with legal scholarship or legal education. Most American law schools are peculiar hybrids between trade schools and graduate schools in the liberal arts. Most law students attend law school -- at a high financial cost -- because they want to become practicing lawyers, and with very few exceptions it is the case that one must have a law degree (usually a JD -- juris doctor -- or a foreign equivalent) to practice law in the United States. So law schools train most of their students for careers in, if you will, a trade. Moreover, the vast majority of most law schools' operating expenses come from student tuition, meaning that if law schools did not offer what is perceived to be at least adequate training in the trade of being a lawyer, they would cease to exist.
At the same time, most American law professors -- the people doing most of the teaching in these law schools -- are more or less full-time academics, not full-time (or even part-time) lawyers. Here the exceptions are more numerous and more significant. Many "full-time" law professors also engage in extensive law practice, either pro bono or for paying clients. And every American law school of which I'm aware relies on many "adjunct," or part-time, professors to teach mostly specialized courses, most of whom are practicing lawyers or sitting judges. Still, the typical American law professor spends relatively little of her time actually practicing law, and many spend no time doing so. So the principal teachers of American law students -- most of whom want to be practicing lawyers -- are themselves not practicing lawyers in any real sense.
In some respects this seems silly. Why is American legal education structured this way? Shouldn't practicing-lawyer-wannabes be taught by actual practicing lawyers? Silly or not, it is probably unavoidable, or at least eminently understandable. Teaching and practicing law are not the same; they involve different sets of skills. It is difficult to become (and remain) very good at one while also becoming (and remaining) very good at the other. Part of the reason for this is time: busy practicing lawyers have limited time available that they can devote to other pursuits, like preparing a good lesson plan, keeping up with developments in pedagogy, and meeting with students. So it is natural that a professional class of law teachers would develop on a separate track from the professional class of lawyers -- even though most American law professors also have law degrees. (Indeed, this is true in other areas of education as well, so much so that it is unremarkable. Think of your high-school biology teacher. He or she probably was not an active professional biologist; does that seem strange to you? Probably not -- because it's easy to understand that the job of teaching biology to class after class of hormonal teenagers is itself a full-time job.)
Add to this the fact that law professors also have the opportunity to do something else that is difficult to accomplish while holding down a full-time practice, namely scholarship. Practicing lawyers have relatively little time to research and write about the law, and their need to uphold the interests of clients (actual and potential) limits the range of topics they can research and write about and the substance of what they can write about those topics. Full-time law professors typically are not subject to the latter limitation, and although theoretically they could be subject to the former limitation -- teaching and related activities conceivably could take up all their time -- in actuality most of them are not, for reasons I'll discuss later on. The opportunity to devote significant professional time to research and writing about interesting legal topics is what attracts many law professors away from practice and into legal education. Many law professors -- I count myself among them -- find it personally more rewarding to engage in deep intellectual exploration of intriguing legal issues than to (say) draft page-limited, client-driven court briefs or negotiate million-dollar contracts. And of course there are other attractions to the academic lifestyle, such as schedule flexibility and freedom from the worry that the client will phone at 4:55 on Friday afternoon with a problem that needs to be solved by Monday.
So it is understandable, and may have been inevitable, that American law schools would come to rely primarily on full-time legal academics to train the lawyer wannabes who pay the law schools' bills. And now we begin to see the faint outlines of the problem as it relates to legal scholarship. The outlines can be brought into clearer focus by adding some details to the picture.
The first detail is the relative dearth of external funding for legal scholarship. Medical schools (for example) also have full-time faculty members that spend a lot of time on research; but most of the funding from that research comes from outside sources -- the government, private foundations, industry. In contrast, relatively little funding for legal research comes from outside sources (that is, sources outside the law school itself). The reasons for this are complex, and I'm not sure I fully understand them, but they probably include the facts that the results of legal scholarship rarely have an obvious cash value, and that legal scholarship often (indeed usually) is explicitly normative -- arguing for or against a particular state of affairs -- rather than descriptive (like medical research), thus making the dangers of funding by private industry (law firms, clients) too salient.
Bottom line, then: legal scholarship has to be funded primarily by law schools themselves, which means from tuition dollars. It's important to note that legal scholarship is not nearly as expensive as, say, medical research; it rarely requires outlays for expensive equipment and support personnel. The cost of legal scholarship is, if you will, primarily opportunity cost: a law professor who is taking her paycheck in part to do legal scholarship is not spending that portion of her time doing something else (say, teaching). Still, that cost might be rather high, relatively speaking; Harrison and Mashburn estimate it at 25% of faculty salaries, which would work out to well over $1 million per year at most law schools. And this cost, remember, is supported at most law schools almost entirely by student tuition income.
The second detail is the peculiarity -- some would say pathology -- of how the activity of legal scholarship has developed among American law schools. American legal scholarship is strange in so many ways that it's hard to know where to start. It is unusual in the typical length of the units of legal scholarship, law-review articles, which usually run between 15,000 and 30,000 words and are heavily footnoted. It is unusual in the review and editing process for these articles, which with a few exceptions is performed by law students. (So second- and third-year law students are deciding whether to publish work written by experts in the relevant fields.) And it is unusual in the number of journals available in which to publish: each of the roughly 200 U.S. law schools has at least two journals, and many have quite a few more, so that the total number of student-edited law journals is probably at least 500 (I haven't actually counted), most of which publish multiple issues each year and include between two and five articles in each issue.
These unusual features converge, and interact with other dynamics in the legal academy, to create what we might politely call "issues." There are thousands of "spots" in law reviews that have to be filled each year, creating a strong incentive for students at many journals to publish bad scholarship. (The students don't need to worry about selling the journals they edit -- no one buys them; they just want to get credit for an extracurricular activity.) Add to this the fact that the student editors are, well, students, and thus not always in the best position to tell the bad scholarship from the good. And so lots of bad law review articles get published every year.
Why do law professors keep cranking this stuff out for students to publish in journals that few people will read? For one thing, publication in some law reviews -- the elite ones, roughly the top 20 or 30 -- is quite prestigious; it can bring professional recognition to law professors and can enhance the reputation of their schools. Law professors care about their professional recognition because it figures into institutional decisions on things like tenure and promotion (and also because law professors, like most people and perhaps more than many, like to be well-regarded). Law schools care about their reputations because rankings like that in U.S. News & World Report typically weigh "reputation" heavily in their formulas, and prospective tuition-paying law students (and donation-wielding alums) typically pay close attention to the rankings. Partly for this latter reason, publication of law-review articles is required for tenure and promotion at most law schools. (Why the law-review article, rather than some other form of legal scholarship, became the base unit for assessment of scholarship in the American legal academy is a mystery to me. I suspect the accidents of history and the outsized influence of the Harvard Law Review as legal education developed in the early 20th century have something to do with it. But I digress.)
Meanwhile, the length of law-review articles has its own perverse effects. It is, frankly, difficult to read all the way through most 25,000-word, 300-footnote law-review articles. This creates an incentive for busy student editors of law journals to rely, not on the actual quality of a submission (which they're unlikely to be well-suited to judge anyway), but on external cues about quality, like the prestige of the author or of her home institution or alma mater. It also deters the people who evaluate law professors' scholarship for tenure, promotion, and other purposes -- chiefly other law professors -- from carefully reading that actual scholarship, leading them to rely on many of these same imperfect external cues. And it undoubtedly deters members of the potential audience for legal scholarship -- practicing lawyers, sitting judges, policymakers -- from paying much attention to that scholarship. (Most of them have better things to do than wade through 300 footnotes.)
All of which brings us to the third detail, the one that motivates articles like Harrison and Mashburn's and that animates the much-larger, introspective discussion of which that article (and this blog post) are part. American legal education is in the midst of a financial crisis that may be unprecedented in its history. The number of high-paying jobs for lawyers has gone way down in the past decade or so, while law-school tuition has climbed, resulting in a steep decline in applicants to law schools, resulting in a decline in law-school enrollments, resulting in a decline in tuition revenues and thus in law-school budgets. So law schools have to compete for students to an extent that they have not had to do before. And not for just any students, but for good students -- the ones capable of doing well in law school, graduating, passing the bar, and succeeding in practice. But law schools have less money with which to compete for these students -- less money for scholarships, and less money to develop innovative educational programs that can prepare students for the changing legal market.
Which brings us -- whew! -- to the debate over the role of legal scholarship in legal education. Legal scholarship is an obvious target in the current climate, because (a) it costs quit a bit of money (mostly in the form of opportunity cost), and (b) its benefits (to society, to law students, to practicing lawyers) typically are not salient. Why not eliminate, or substantially reduce, law schools' support for legal scholarship (by, e.g., reducing law professors' salaries, or increasing their teaching loads)? This is the rather obvious question that triggers the rather predictable debate.
So let me bring this lengthy post to a close by suggesting a handful (eight at the moment) of basic principles (really propositions at this point) that I think should frame this debate going forward. I hope to further develop these principles in future posts -- and I reserve the right to amend or supplement them liberally.
- Legal scholarship should not continue to be financially supported -- in this financial climate or in any other -- if it does not actually generate benefits sufficient to justify that support.
- To the greatest extent possible, these benefits (if they exist) should be a matter of empirical demonstration and normative argument rather than just taken on faith (or dismissed out of hand).
- However, it is likely that some potential benefits of legal scholarship will be difficult to measure empirically, or will only be discernible well after the fact (e.g., as scholarly ideas trickle down into judicial opinions and gradually influence the law).
- Legal scholarship done by law-school faculty (as compared to that done by practicing lawyers and judges on the one hand, or by faculty in other disciplines -- economics, philosophy, political science -- on the other) is likely to have value -- to produce benefits -- that are distinctive, perhaps unique. Law-school faculty do not have to worry about client interests or judicial impartiality. And yet their legal training gives them a perspective lacking in most scholarship about the law coming from other disciplines.
- For reasons suggested by principles 3 and 4, external support from industry or government is unlikely to successfully fund more than a small amount of legal scholarship. At least some benefits of legal scholarship are likely to be what economists call "public goods." They are non-rivalrous: one person's use of them does not diminish the amount available for others. And (most importantly for my point here) they are non-excludable: anyone can enjoy them without paying for them. This last feature makes it difficult to raise industry (private) support for legal scholarship. That difficulty is enhanced by the chiefly normative nature of legal scholarship, which prevents ethical scholars from relying heavily on industry funding. While government or nonprofit funding is a more promising avenue, the lack of immediate, demonstrable "on the ground" benefits of much legal scholarship is an obstacle to significant development of these sources.
- One type of benefit of legal scholarship is its capacity to function as a critical or reforming tool. Law professors are free to criticize the law and legal systems, not just describe them. This informed critique is (or can be) a public good, despite its typical lack of direct benefit to judges and lawyers, who typically (though not always) are concerned with what the law is (or can be said to be), not with what it should or could be.
- Another type of benefit of legal scholarship is its usefulness in educating prospective lawyers. Legal scholarship can be helpful in providing law students with an overview of a particular legal subject or issue, and in familiarizing them with competing arguments about particular issues and with the concept of good legal arguments in general. It also can be helpful to teachers in developing new ideas, new ways of thinking, new ways of communicating old ideas -- all of which can be brought to bear in the classroom.
- A significant reduction in support for legal scholarship would change the makeup of the legal academy. Not necessarily for the worse, but change would be inevitable. Many law professors are attracted to teaching in part because of the opportunity to do scholarship. If that opportunity shrinks or disappears, some (perhaps many) of tomorrow's potential law professors will choose to do other things with their lives. Some likely results are (re-)stratification in the legal academy -- with the elite law schools monopolizing legal scholarship, as was once the case -- and an increasing reliance by many law schools on faculty who spend significant time practicing law in addition to their teaching duties.
ADDENDUM: And a ninth principle/proposition occurs to me:
9. Legal scholarship must change if it is going to survive. I think it's likely that the changes will be in the direction of shorter works, more immediacy, engagement with a broader audience, and more attention to real-world application, although not all successful examples of legal scholarship will have to push all of these buttons. There may also be a trend in the direction of more peer review, which may pose some tension with some of these other developments. In any event, I suspect the reign of the student-edited law review is nearing its end.
As I said, stay tuned.
Thursday, March 5, 2015
A modernist gem awaits its fate
I'm a fan of Rudolph's work, particularly the stuff that leans toward the International Style, and while this building tiptoes up to the edges of Brutalism -- a style I generally dislike -- it stops just short, with beautiful effect. I hope the county does the right thing.
UPDATE: The county did not do the right thing. Democratic legislators failed in two attempts to derail the virtual demolition of the building yesterday, and the body did not vote on whether to override an earlier veto of an alternative plan by the county executive. It's unclear (based on my quick review of press reports) whether this is the absolute final word on the issue.
I don't know enough about politics in Orange County, NY to speculate as to why this issue seems to have split roughly along Democrat/Republican party lines, and I'm not going to air my (probably biased) suspicions in this public forum. I will say that my own experience with local government is consistent with the notion that, once a developer gets a plan in the government pipeline, it's almost impossible to derail that plan, even in the face of organized opposition and strong arguments against it. It's not (usually) a matter of partisan politics; it's a matter of money. And that's the core problem with our politics in this country more generally, IMHO. (See what I just did -- I tied in this seemingly frivolous dispute about architecture to the main subjects of this blog! Everything's connected.)
Anyway, more on both the architectural issue and the underlying crisis in our democratic process in subsequent posts.
The new "Obamacare" case: once more into the breach
Yesterday the Supreme Court heard arguments in King v. Burwell, a stealth challenge to the feasibility
of the "individual mandate" that underlies the Affordable Care Act
(ACA) -- so-called "Obamacare." (Not so stealthy anymore,
as it turns out; once something makes the New York Times front page,
it's no longer flying under the radar.)
Coverage of the case in the Times and elsewhere has been extensive, and I won't delve into the nitty-gritty details here. Here's a brief overview. The plaintiffs in the case are using some sloppy wording in the statute as a sort of loose thread in the sweater: they hope the Supreme Court will tug on that string and eventually unravel the individual mandate provision, along with much else in the law.
The "individual mandate" is the ACA's requirement that most individuals obtain a certain minimum amount of health insurance, either through an employer, on the open market, or through so-called "exchanges" operated by the federal government and some states. People who fail to obtain the required insurance pay a tax penalty, which is due to kick in for the first time during the current tax season. In 2012, the Court upheld the individual mandate against a constitutional challenge, with Chief Justice John Roberts as the necessary swing vote (joining the Court's four more-liberal justices). Game over, right?
Not so fast. By the terms of the statute, a person is not subject to the individual mandate if the costs of obtaining health insurance exceed a certain percentage of her annual household income. For many lower-income people, those costs are reduced by government subsidies in the form of tax credits issued by the IRS. Without these subsidies, health insurance would exceed the cost threshold for many Americans, and those people would become exempt from the individual mandate. Many of them presumably would not buy insurance at all.
Now here's the problem. The provision of the ACA that tells the IRS how to calculate these tax credits, if read literally and in isolation, allows credits only to taxpayers who purchase insurance "through an Exchange established by the State." But the ACA also gives states the choice of whether to establish their own exchanges, and only 16 have done so (plus the District of Columbia); the rest are run by the federal government. The plaintiffs in King therefore argue that taxpayers in 34 states are ineligible for the tax credits.
What would be the result if this argument succeeds? Denying tax credits to these taxpayers -- eventually, roughly 12.5 million people -- would mean that many (probably most) of them will no longer be subject to the individual mandate. Many or most of them, in turn, probably will not purchase health insurance, thus dropping out of the insurance pool. This will drive insurance premiums up for those who stay in the pool; some of those people then will exceed the cost-to-income threshold, removing themselves from the individual mandate and, consequently, dropping out of the insurance pool. Costs will go up even further for those remaining in the pool; some of them will then escape the mandate and drop out, driving costs up even more. And so on -- a vicious cycle, or "death spiral," that might eventually defeat the main purpose of the ACA, which was to provide relatively low-cost health coverage to millions of Americans who otherwise could not afford it.
And that, of course, is the whole point of the lawsuit in King v. Burwell. It's a back-door attempt to do what the ACA's opponents failed to do directly in 2012, namely gut Obamacare.
Will the attempt succeed? I was skeptical before yesterday's arguments and remain skeptical today. There are three main reasons for my skepticism (or should I say optimism).
The first is simply that the law is against the plaintiffs in King. It's true that the single sentence they point to, if read literally and out of context, seems to say that tax credits are not available for taxpayers in states without their own exchanges. But this is one sentence in a 2,000-page piece of legislation. The Court -- including its most conservative members, who like to focus on the literal meaning of texts -- has frequently said that statutory language must be interpreted "by reference to ... the broader context of the statute as a whole." (This quote comes from Justice Clarence Thomas's opinion for the Court in a 1997 case, Robinson v. Shell Oil Co.) The "broader context" of the ACA makes clear its goal of providing affordable insurance coverage to as many Americans as possible. Reading the statute to deny tax subsidies to millions of people, based on a single sentence in an obscure provision of the law, would make hash of this purpose.
At worst, the ACA is ambiguous on the question whether taxpayers in non-exchange states are entitled to the credits. And the Court has long followed the rule (known as Chevron deference) that in cases of statutory ambiguity, the judiciary must defer to the reasonable interpretation endorsed by the agency charged with administering the statute -- in this case, the IRS. The IRS reads the statute to allow the tax credits, and if the Court thinks the statutory language is ambiguous, it should uphold the IRS's reading. (This is the basis on which the lower court in King v. Burwell rejected the plaintiff's challenge.)
But while the law is against the plaintiffs, it's not quite a slam dunk; there's enough room for the Court to buy the plaintiffs' arguments if the majority is inclined to do so. Which leads me to the second and third reasons why I think the plaintiffs will lose.
The second reason is a comment made by Justice Anthony Kennedy during oral arguments yesterday. Justice Kennedy told the attorney arguing for the plaintiffs that their position “raises a serious constitutional question” about the relationship between the state and federal governments. He was referring to the fact that denying tax credits to people in non-exchange states would put those states to a Hobson’s choice: either set up their own exchanges or watch hundreds of thousands of their citizens lose their insurance coverage (and the possible collapse of the health-insurance market in that state). There are a couple constitutional doctrines that might limit the federal government’s ability to essentially force a state government to act in this way. The Tenth Amendment prohibits the feds from “commandeering” state governments to enforce federal law; requiring states to create insurance exchanges or watch their insurance markets crater might conceivably qualify as prohibited “commandeering.” The Court also has imposed limits on Congress’ ability to coerce states into action using the power of the purse; Congress may entice states to regulate using federal money as a carrot, but it may not deny the states a “legitimate choice” by using federal funds as a cudgel. Arguably a law that allows federal tax credits only to citizens in states that establish their own exchanges crosses this line.
I personally don’t think that either of these arguments is a winner, assessed on its merits. But the point is that Justice Kennedy appears to think so. Justice Kennedy has established a reputation, for better or worse, of taking positions in highly controversial cases that tread a fine line, resolving the particular dispute at hand without committing to deeply disputed principles. His comment about federalism yesterday suggests he might do the same in King v. Burwell – perhaps endorsing the government’s reading of the tax-credit provision in order to avoid the “serious constitutional question” involving federal coercion of the states. That would be a crucial swing vote against the plaintiffs – perhaps the fifth vote necessary to reject their challenge.
The third reason I think the King plaintiffs will lose is Chief Justice Roberts. In NFIB v. Sebelius, the 2012 case challenging several aspects of the ACA on constitutional grounds, the Chief Justice surprised almost everyone by siding with the government to uphold the individual mandate. He took a big risk in doing so: his vote triggered the wrath of disappointed fellow conservatives. I find it hard to believe that the Chief Justice – having stuck his neck out to uphold the individual mandate in a squarely presented constitutional challenge – would now meekly vote with his fellow conservatives to kill the law by indirect means. Of course, there are other theories. But I would not be surprised if the Chief Justice too sided with the government in King – either on Chevron deference grounds, or as a way of avoiding supposed federalism problems, in league with Justice Kennedy.
In other words, a 6-3 decision for the government in King would not shock me. (I have no hope that Justices Scalia, Thomas, or Alito will bring themselves to vote in favor of Obamacare.) But I’m only slightly better at picking the results of controversial Supreme Court cases than I am at calling NCAA tournament games, so I wouldn’t take my prediction to the bank. We’ll find out (most likely) in late June.
Coverage of the case in the Times and elsewhere has been extensive, and I won't delve into the nitty-gritty details here. Here's a brief overview. The plaintiffs in the case are using some sloppy wording in the statute as a sort of loose thread in the sweater: they hope the Supreme Court will tug on that string and eventually unravel the individual mandate provision, along with much else in the law.
The "individual mandate" is the ACA's requirement that most individuals obtain a certain minimum amount of health insurance, either through an employer, on the open market, or through so-called "exchanges" operated by the federal government and some states. People who fail to obtain the required insurance pay a tax penalty, which is due to kick in for the first time during the current tax season. In 2012, the Court upheld the individual mandate against a constitutional challenge, with Chief Justice John Roberts as the necessary swing vote (joining the Court's four more-liberal justices). Game over, right?
Not so fast. By the terms of the statute, a person is not subject to the individual mandate if the costs of obtaining health insurance exceed a certain percentage of her annual household income. For many lower-income people, those costs are reduced by government subsidies in the form of tax credits issued by the IRS. Without these subsidies, health insurance would exceed the cost threshold for many Americans, and those people would become exempt from the individual mandate. Many of them presumably would not buy insurance at all.
Now here's the problem. The provision of the ACA that tells the IRS how to calculate these tax credits, if read literally and in isolation, allows credits only to taxpayers who purchase insurance "through an Exchange established by the State." But the ACA also gives states the choice of whether to establish their own exchanges, and only 16 have done so (plus the District of Columbia); the rest are run by the federal government. The plaintiffs in King therefore argue that taxpayers in 34 states are ineligible for the tax credits.
What would be the result if this argument succeeds? Denying tax credits to these taxpayers -- eventually, roughly 12.5 million people -- would mean that many (probably most) of them will no longer be subject to the individual mandate. Many or most of them, in turn, probably will not purchase health insurance, thus dropping out of the insurance pool. This will drive insurance premiums up for those who stay in the pool; some of those people then will exceed the cost-to-income threshold, removing themselves from the individual mandate and, consequently, dropping out of the insurance pool. Costs will go up even further for those remaining in the pool; some of them will then escape the mandate and drop out, driving costs up even more. And so on -- a vicious cycle, or "death spiral," that might eventually defeat the main purpose of the ACA, which was to provide relatively low-cost health coverage to millions of Americans who otherwise could not afford it.
And that, of course, is the whole point of the lawsuit in King v. Burwell. It's a back-door attempt to do what the ACA's opponents failed to do directly in 2012, namely gut Obamacare.
Will the attempt succeed? I was skeptical before yesterday's arguments and remain skeptical today. There are three main reasons for my skepticism (or should I say optimism).
The first is simply that the law is against the plaintiffs in King. It's true that the single sentence they point to, if read literally and out of context, seems to say that tax credits are not available for taxpayers in states without their own exchanges. But this is one sentence in a 2,000-page piece of legislation. The Court -- including its most conservative members, who like to focus on the literal meaning of texts -- has frequently said that statutory language must be interpreted "by reference to ... the broader context of the statute as a whole." (This quote comes from Justice Clarence Thomas's opinion for the Court in a 1997 case, Robinson v. Shell Oil Co.) The "broader context" of the ACA makes clear its goal of providing affordable insurance coverage to as many Americans as possible. Reading the statute to deny tax subsidies to millions of people, based on a single sentence in an obscure provision of the law, would make hash of this purpose.
At worst, the ACA is ambiguous on the question whether taxpayers in non-exchange states are entitled to the credits. And the Court has long followed the rule (known as Chevron deference) that in cases of statutory ambiguity, the judiciary must defer to the reasonable interpretation endorsed by the agency charged with administering the statute -- in this case, the IRS. The IRS reads the statute to allow the tax credits, and if the Court thinks the statutory language is ambiguous, it should uphold the IRS's reading. (This is the basis on which the lower court in King v. Burwell rejected the plaintiff's challenge.)
But while the law is against the plaintiffs, it's not quite a slam dunk; there's enough room for the Court to buy the plaintiffs' arguments if the majority is inclined to do so. Which leads me to the second and third reasons why I think the plaintiffs will lose.
The second reason is a comment made by Justice Anthony Kennedy during oral arguments yesterday. Justice Kennedy told the attorney arguing for the plaintiffs that their position “raises a serious constitutional question” about the relationship between the state and federal governments. He was referring to the fact that denying tax credits to people in non-exchange states would put those states to a Hobson’s choice: either set up their own exchanges or watch hundreds of thousands of their citizens lose their insurance coverage (and the possible collapse of the health-insurance market in that state). There are a couple constitutional doctrines that might limit the federal government’s ability to essentially force a state government to act in this way. The Tenth Amendment prohibits the feds from “commandeering” state governments to enforce federal law; requiring states to create insurance exchanges or watch their insurance markets crater might conceivably qualify as prohibited “commandeering.” The Court also has imposed limits on Congress’ ability to coerce states into action using the power of the purse; Congress may entice states to regulate using federal money as a carrot, but it may not deny the states a “legitimate choice” by using federal funds as a cudgel. Arguably a law that allows federal tax credits only to citizens in states that establish their own exchanges crosses this line.
I personally don’t think that either of these arguments is a winner, assessed on its merits. But the point is that Justice Kennedy appears to think so. Justice Kennedy has established a reputation, for better or worse, of taking positions in highly controversial cases that tread a fine line, resolving the particular dispute at hand without committing to deeply disputed principles. His comment about federalism yesterday suggests he might do the same in King v. Burwell – perhaps endorsing the government’s reading of the tax-credit provision in order to avoid the “serious constitutional question” involving federal coercion of the states. That would be a crucial swing vote against the plaintiffs – perhaps the fifth vote necessary to reject their challenge.
The third reason I think the King plaintiffs will lose is Chief Justice Roberts. In NFIB v. Sebelius, the 2012 case challenging several aspects of the ACA on constitutional grounds, the Chief Justice surprised almost everyone by siding with the government to uphold the individual mandate. He took a big risk in doing so: his vote triggered the wrath of disappointed fellow conservatives. I find it hard to believe that the Chief Justice – having stuck his neck out to uphold the individual mandate in a squarely presented constitutional challenge – would now meekly vote with his fellow conservatives to kill the law by indirect means. Of course, there are other theories. But I would not be surprised if the Chief Justice too sided with the government in King – either on Chevron deference grounds, or as a way of avoiding supposed federalism problems, in league with Justice Kennedy.
In other words, a 6-3 decision for the government in King would not shock me. (I have no hope that Justices Scalia, Thomas, or Alito will bring themselves to vote in favor of Obamacare.) But I’m only slightly better at picking the results of controversial Supreme Court cases than I am at calling NCAA tournament games, so I wouldn’t take my prediction to the bank. We’ll find out (most likely) in late June.
Hi. Welcome to my blog.
This is a reboot of a previous blog that, for various reasons, is no longer in use. (Here's the old blog if you're interested. From time to time I might link to content there.) It's also a continual work in progress, so please bear with me.
I'm a law professor at the University of Baltimore School of Law, where I teach constitutional law, among other subjects. I've published a couple of books about constitutional law and theory, one called A Matter of Dispute: Morality, Democracy, and Law (Oxford Univ. Press 2011) -- hence the title of this blog -- and another called Precedent in the United States Supreme Court (Springer 2014). I've also published some law-review articles on constitutional law, legal theory, and related subjects.
I'm not exactly sure who the audience for this blog will be, if there even is one. I plan to post on timely developments in U.S. Constitutional law and legal education, perhaps in other legal areas as well. Occasionally I might write a "background" post offering my views on big-picture legal or theoretical issues. My aim is to write posts that are accessible to nonspecialists (I won't always succeed), and so perhaps a likely audience for this stuff would include law students and members of the public with some interest in constitutional law but no real expertise in it. We shall see.
Oh, and I might throw in a few posts about some nonprofessional subjects that interest me: modern architecture and design and photography. (I'll try to spare you any posts about my other passions, Detroit Tigers baseball and University of Michigan collegiate sports.)
My prior experience with blogging suggests I'm not very good at it. I'm used to writing 150,000-word books and 25,000-word law-review articles, and it's tough for me to adapt to a brief, relatively instantaneous format. But that is the model toward which legal scholarship is shifting, I suspect -- shorter, more timely scholarship, often aimed to a broader audience -- and this is part of my effort to shift with it. I apologize in advance for what surely will be periodic long gaps between my posts.
Anyway, thanks to whomever is reading this. I welcome your comments -- negative is okay, polite is essential -- and I hope to occasionally post something that interests you.
Best,
CJP
I'm a law professor at the University of Baltimore School of Law, where I teach constitutional law, among other subjects. I've published a couple of books about constitutional law and theory, one called A Matter of Dispute: Morality, Democracy, and Law (Oxford Univ. Press 2011) -- hence the title of this blog -- and another called Precedent in the United States Supreme Court (Springer 2014). I've also published some law-review articles on constitutional law, legal theory, and related subjects.
I'm not exactly sure who the audience for this blog will be, if there even is one. I plan to post on timely developments in U.S. Constitutional law and legal education, perhaps in other legal areas as well. Occasionally I might write a "background" post offering my views on big-picture legal or theoretical issues. My aim is to write posts that are accessible to nonspecialists (I won't always succeed), and so perhaps a likely audience for this stuff would include law students and members of the public with some interest in constitutional law but no real expertise in it. We shall see.
Oh, and I might throw in a few posts about some nonprofessional subjects that interest me: modern architecture and design and photography. (I'll try to spare you any posts about my other passions, Detroit Tigers baseball and University of Michigan collegiate sports.)
My prior experience with blogging suggests I'm not very good at it. I'm used to writing 150,000-word books and 25,000-word law-review articles, and it's tough for me to adapt to a brief, relatively instantaneous format. But that is the model toward which legal scholarship is shifting, I suspect -- shorter, more timely scholarship, often aimed to a broader audience -- and this is part of my effort to shift with it. I apologize in advance for what surely will be periodic long gaps between my posts.
Anyway, thanks to whomever is reading this. I welcome your comments -- negative is okay, polite is essential -- and I hope to occasionally post something that interests you.
Best,
CJP
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