There's no question that college, graduate school, and professional school tuition has risen substantially over the last few decades, outpacing the rate of inflation. One obvious possible culprit is reduced taxpayer support for public education at the state level. In last Sunday's (04/05/15) New York Times, Paul F. Campos denies that cuts in state funding are the problem. Instead he blames swelling administrative costs, suggesting near the end of the piece that "seven-figure salaries for high-ranking university administrators" are largely at fault.
Today the Times published several letters responding to Campos's piece, including my own. In my letter, I note some legitimate reasons for rising administrative costs at colleges and universities, reasons that have nothing to do with "seven-figure salaries," which are very far from the norm. (Kurt Schmoke, current president of my school (the University of Baltimore) and surely one of the most qualified leaders in higher education today, earns around $300,000 per year.) One reason is increased regulation of higher education, such as student-privacy requirements and standards for disability accommodation (to name just a few examples); these mandates necessitate administrators and staff to implement and oversee them, jobs that didn't even exist several decades ago.
Another reason is the increasing complexity of the educational mission in today's economy. College degrees are now the norm, not the exception, in the job market, making jobs for graduates harder to come by -- and pushing schools to develop sophisticated career development programs to help their graduates get those jobs. American K-through-12 education also is not what it once was -- many students come to college unprepared for the basic analytical and communicative tasks they are asked to perform -- requiring colleges to maintain extensive academic support programs. (The recent and overdue push to enroll more students from low-income families makes these programs even more essential.) Of course, these necessary student services require administrative personnel to run them.
So the problem is not just -- indeed, not primarily -- the salaries of university administrators. Higher education is a lot more complex, and thus a lot more expensive, than it was fifty years ago. The question is who is going to pay these increased costs. I personally think taxpayers should pay the lion's share of them through increased financial support for public colleges and universities. The alternative, which has taken hold in most states by default, is for students and their families to bear the brunt of these costs through increased tuition. There are tough choices to be made here, and Campos's article obscures them by suggesting that fat-cat university administrators are to blame.
Campos's piece is misleading in another way as well: he points out that overall public spending on higher education has increased over the last few decades, but downplays the fact that it actually has decreased on a per-student basis. (Exhibit A is another letter in today's Times, from the CFO at the University of California, who points out that California's higher-education system currently is funded at the same level as in 1999, despite the influx of 83,000 more students since then.) Public universities are now providing more services to their students than they were a generation ago but receiving less taxpayer support per student. In real terms, that's a decrease in public support for higher education, no matter how you slice it. (Here's an interesting blog post breaking down some of the ways in which Campos's assertions to the contrary are misleading or poorly supported.)
Campos, who is a law professor at the University of Colorado, has been a vocal critic of the current system of legal education. He now appears to be broadening his target to higher education in general. He's surely correct that there are many problems with the system as it currently stands. He's also right to demand that arguments on all sides be "intellectually rigorous." Unfortunately his recent piece in the Times fails to live up to his own standard.
Friday, April 10, 2015
Thursday, April 2, 2015
RFRA follow-up: new post from Garrett Epps
My colleague Garrett Epps hardly needs my help to boost his Atlantic.com readership, but as a follow-up to my post yesterday, I can't resist plugging his latest comment on the Indiana/Arkansas RFRA controversy. My favorite line from a column chock full of witticisms and insights: the Arkansas RFRA bill (which governor Asa Hutchinson has said he won't sign in its current form) "makes the Indiana law look like the Universal Declaration of Human Rights."
Wednesday, April 1, 2015
Update: the fate of the Orange County Government Center
And now for something completely different. Last month I posted about seemingly irreversible plans to demolish an icon of modernist architecture, Paul Rudolph's Orange County (NY) Government Center. Yesterday came news of a lawsuit seeking to block the demolition. These cases rarely succeed, but maybe the lawsuit at least will keep the spotlight on the county and its strangely bullheaded determination to tear down what many consider a masterpiece. Where there's life (or concrete), there's hope.
Equality, "religious freedom," and the need for context
By now you're probably familiar with the controversy over the Indiana RFRA (Religious Freedom Restoration Act) law and its potential -- most likely intended -- to license businesses to discriminate against gays and lesbians. (And now those enlightened statesmen in the Arkansas legislature are getting in on the act.) Here's an excellent summary in the Times of the controversy, the history of RFRA laws, and the distinguishing characteristics of the Indiana law; here's my colleague Garrett Epps's description of how Indiana's law differs from the federal and most state versions of RFRA; and here's Lambda Legal's take on why the law seems motivated by anti-gay bias.
I have never been a fan of these RFRA statutes, and these recent abuses of them highlight a big reason why. The original federal RFRA can be understood sympathetically, as an attempt to protect religious minorities from general laws that needlessly burden their religious practices (e.g., a ban on hallucinogenic drugs that fails to exempt the use of peyote in Native American rituals). But once we start requiring exemptions from general laws for religious beliefs or practices, we open the proverbial can of worms. There's a huge and growing variety of religious beliefs and practices out there, and requiring exemptions for all of them threatens to make our laws look like Swiss cheese. (That's a worm and a cheese metaphor in the same paragraph. My apologies.) It's difficult, moreover, to discern whether any given expression of a religious belief is sincere (rather than just a dodge to get around a burdensome law), or to know whether burdens on sincere beliefs are "substantial" enough (the language of most RFRA statutes) to justify an exemption. Under RFRA laws, however, judges have to make these calls, which means government officials have the authority to decide what religious beliefs are genuine and which religious beliefs and practices are sufficiently important to render a burden "substantial." And RFRA laws inevitably beg the question of who is capable of holding a "religious belief" or engaging in a "religious practice" (can for-profit corporations do it? the Supreme Court has said yes), which is really an existential question about what "religion" is -- and thus, again, hardly the kind of issue we want courts deciding.
My biggest beef with RFRA laws, however, is their prioritization of religious belief over other important values. This priority is inherent in the very notion of a "Religious" Freedom Restoration Act (as opposed, say, to a "Moral" Freedom Restoration Act): RFRAs entitle me to an exemption from drug laws if I smoke peyote as part of my Native American religious practice (the "I" here is hypothetical), but not if I smoke peyote because of a moral judgment that moderate use of hallucinogens is an acceptable form of recreation. It's true that our Constitution itself seems to prioritize religious belief by safeguarding "the free exercise" of "religion" in the First Amendment. But this Free Exercise Clause has been interpreted by the Supreme Court -- correctly, in my view -- to protect religious beliefs and practices only from intentional targeting by the government, not from incidental burdens as the result of religion-neutral laws. (This interpretation is what prompted the enactment of RFRA laws in the first place.)
And it turns out that even the Constitution's apparently favorable treatment of religion is largely illusory. The Constitution also protects other important values, such as freedom of speech, "life, liberty, [and] property," and equality, to name just a few. And this is where the primary danger of RFRA statutes becomes apparent. Some general laws are designed to further one or more of these other constitutional values. Laws prohibiting race discrimination in employment, business, or housing, for example, advance the constitutional principle of equality, extending the formal requirement of equal protection from the realm of government action (which is directly controlled by the Constitution) to the realm of private conduct (which is not). If RFRA laws are applied to create exemptions from these antidiscrimination laws, then one constitutional value (freedom of religion) is being deployed to trump another (equality).
Of course, if constitutional values conflict, one of them has to win out; one competing value inevitably must take precedence over the other. If the choice is between religious freedom and equality, why shouldn't religious freedom win? In the abstract, I'm not sure which value is more important. (I strongly lean towards equality; others surely will disagree.) But the issue presented by Indiana's version of RFRA is not an abstract one. That law expressly protects the "religious freedom" not just of individuals or religious organizations, but also of for-profit businesses; and it expressly applies not just to actions taken by the government (such as tax assessments or criminal prosecutions), but also to private lawsuits. This means that if an Indianapolis hotel (say) refuses to rent its honeymoon suite to a newly married gay couple; or an Indianapolis Hooters refuses to hire an openly lesbian waitress; these businesses cannot be sued for violating the Indianapolis ordinance that prohibits private discrimination based on sexual orientation. They would be exempted from that ordinance thanks to the new state-wide RFRA statute.
Imagine that the owner of our hypothetical Indianapolis hotel holds a sincere religious belief that interracial marriage is against God's will. (As Garrett Epps points out, such beliefs were not that terribly uncommon not that terribly long ago.) It would be obvious to most of us in that case that the value of equality should trump the hotelier's claim of religious freedom. Renting a room to an interracial couple, after all, would not force the hotel owner to change her religious beliefs; it would not prevent her from communicating those beliefs to others or expressing those beliefs through the rituals and practices of her religion. But refusing to rent the room would cause clear material harm to the interracial couple, who would be deprived of a benefit to which others are entitled, merely because of their race. And while the hotel owner is free not to invite the couple to dine at her private home, or to worship at her church, her decision to enter the hotel business is a voluntary (and remunerative) act of participation in civil society -- and thus a voluntary choice to submit to the legal and social norms of that society in the operation of her business.
As this hypothetical shows, to cloak the Indiana RFRA law in the mantle of "religious freedom" is to obscure a lot that is important about how the law will apply in the real world. The law safeguards, not simply private acts of worship or expressions of belief, but the use of for-profit businesses to inflict real, material harm on others. It thus tolerates demonstrable acts of inequality in the name of protecting the religious sensibilities of some business owners.
Of course, the meaning of "equality," like the meaning of "religious freedom," is a matter of debate. The racial-discrimination hypothetical is powerful precisely because, when it comes to race discrimination, that debate is now over; the proponents of racism have lost. No court would exempt the racist hotelier from the scope of antidiscrimination laws; any judge would recognize the state's compelling interest in preventing race discrimination. The debate over sexual orientation, obviously, continues (although the opponents of tolerance are losing at an encouraging rate). But it is not open to proponents of RFRA laws like Indiana's to remain on the fence about sexual-orientation discrimination, as Indiana's governor Pence has tried to do. (Pence says he favors amending the law to "clarify" that it does not license discrimination against gays. But he also has no plans to push for affirmative state-wide bans on LGBT discrimination.) If RFRA treats LGBT discrimination differently from race discrimination -- if it exempts the former but not the latter -- then it takes a stand on the discrimination issue: it declares that sexual-orientation equality is less important than racial equality. On the other hand, if Indiana's RFRA treats LGBT and race discrimination the same, then it assumes the opposite position on the equality question -- and there is no reason for the state not to add sexual orientation to its list of criteria upon which businesses in that state may not discriminate.
There is an irony here. Indiana's and other recent RFRA laws seem to have been prompted by the rapid spread of same-sex marriage, and in particular by the possibility that the Supreme Court will soon hold that state laws prohibiting same-sex marriage are unconstitutional. But if the Court in fact decides this, the likely result will be to render RFRA laws irrelevant to the same-sex marriage question. If same-sex couples have a constitutional right to marry, then the state governments have a compelling interest in protecting their freedom to do so. And this compelling interest is sufficient to override claims of religious freedom under every current RFRA statute.
In other words, a SCOTUS decision recognizing the constitutional right of gay couples to marry -- ideally premised on a recognition that sexual orientation is a "suspect" basis of legal classification -- would make it clear that sexual-orientation equality, like racial equality (or for that matter religious freedom), is a central constitutional value that may not be sacrificed to the religious sensibilities of a few. Here's hoping Justice Kennedy feels the same way.
I have never been a fan of these RFRA statutes, and these recent abuses of them highlight a big reason why. The original federal RFRA can be understood sympathetically, as an attempt to protect religious minorities from general laws that needlessly burden their religious practices (e.g., a ban on hallucinogenic drugs that fails to exempt the use of peyote in Native American rituals). But once we start requiring exemptions from general laws for religious beliefs or practices, we open the proverbial can of worms. There's a huge and growing variety of religious beliefs and practices out there, and requiring exemptions for all of them threatens to make our laws look like Swiss cheese. (That's a worm and a cheese metaphor in the same paragraph. My apologies.) It's difficult, moreover, to discern whether any given expression of a religious belief is sincere (rather than just a dodge to get around a burdensome law), or to know whether burdens on sincere beliefs are "substantial" enough (the language of most RFRA statutes) to justify an exemption. Under RFRA laws, however, judges have to make these calls, which means government officials have the authority to decide what religious beliefs are genuine and which religious beliefs and practices are sufficiently important to render a burden "substantial." And RFRA laws inevitably beg the question of who is capable of holding a "religious belief" or engaging in a "religious practice" (can for-profit corporations do it? the Supreme Court has said yes), which is really an existential question about what "religion" is -- and thus, again, hardly the kind of issue we want courts deciding.
My biggest beef with RFRA laws, however, is their prioritization of religious belief over other important values. This priority is inherent in the very notion of a "Religious" Freedom Restoration Act (as opposed, say, to a "Moral" Freedom Restoration Act): RFRAs entitle me to an exemption from drug laws if I smoke peyote as part of my Native American religious practice (the "I" here is hypothetical), but not if I smoke peyote because of a moral judgment that moderate use of hallucinogens is an acceptable form of recreation. It's true that our Constitution itself seems to prioritize religious belief by safeguarding "the free exercise" of "religion" in the First Amendment. But this Free Exercise Clause has been interpreted by the Supreme Court -- correctly, in my view -- to protect religious beliefs and practices only from intentional targeting by the government, not from incidental burdens as the result of religion-neutral laws. (This interpretation is what prompted the enactment of RFRA laws in the first place.)
And it turns out that even the Constitution's apparently favorable treatment of religion is largely illusory. The Constitution also protects other important values, such as freedom of speech, "life, liberty, [and] property," and equality, to name just a few. And this is where the primary danger of RFRA statutes becomes apparent. Some general laws are designed to further one or more of these other constitutional values. Laws prohibiting race discrimination in employment, business, or housing, for example, advance the constitutional principle of equality, extending the formal requirement of equal protection from the realm of government action (which is directly controlled by the Constitution) to the realm of private conduct (which is not). If RFRA laws are applied to create exemptions from these antidiscrimination laws, then one constitutional value (freedom of religion) is being deployed to trump another (equality).
Of course, if constitutional values conflict, one of them has to win out; one competing value inevitably must take precedence over the other. If the choice is between religious freedom and equality, why shouldn't religious freedom win? In the abstract, I'm not sure which value is more important. (I strongly lean towards equality; others surely will disagree.) But the issue presented by Indiana's version of RFRA is not an abstract one. That law expressly protects the "religious freedom" not just of individuals or religious organizations, but also of for-profit businesses; and it expressly applies not just to actions taken by the government (such as tax assessments or criminal prosecutions), but also to private lawsuits. This means that if an Indianapolis hotel (say) refuses to rent its honeymoon suite to a newly married gay couple; or an Indianapolis Hooters refuses to hire an openly lesbian waitress; these businesses cannot be sued for violating the Indianapolis ordinance that prohibits private discrimination based on sexual orientation. They would be exempted from that ordinance thanks to the new state-wide RFRA statute.
Imagine that the owner of our hypothetical Indianapolis hotel holds a sincere religious belief that interracial marriage is against God's will. (As Garrett Epps points out, such beliefs were not that terribly uncommon not that terribly long ago.) It would be obvious to most of us in that case that the value of equality should trump the hotelier's claim of religious freedom. Renting a room to an interracial couple, after all, would not force the hotel owner to change her religious beliefs; it would not prevent her from communicating those beliefs to others or expressing those beliefs through the rituals and practices of her religion. But refusing to rent the room would cause clear material harm to the interracial couple, who would be deprived of a benefit to which others are entitled, merely because of their race. And while the hotel owner is free not to invite the couple to dine at her private home, or to worship at her church, her decision to enter the hotel business is a voluntary (and remunerative) act of participation in civil society -- and thus a voluntary choice to submit to the legal and social norms of that society in the operation of her business.
As this hypothetical shows, to cloak the Indiana RFRA law in the mantle of "religious freedom" is to obscure a lot that is important about how the law will apply in the real world. The law safeguards, not simply private acts of worship or expressions of belief, but the use of for-profit businesses to inflict real, material harm on others. It thus tolerates demonstrable acts of inequality in the name of protecting the religious sensibilities of some business owners.
Of course, the meaning of "equality," like the meaning of "religious freedom," is a matter of debate. The racial-discrimination hypothetical is powerful precisely because, when it comes to race discrimination, that debate is now over; the proponents of racism have lost. No court would exempt the racist hotelier from the scope of antidiscrimination laws; any judge would recognize the state's compelling interest in preventing race discrimination. The debate over sexual orientation, obviously, continues (although the opponents of tolerance are losing at an encouraging rate). But it is not open to proponents of RFRA laws like Indiana's to remain on the fence about sexual-orientation discrimination, as Indiana's governor Pence has tried to do. (Pence says he favors amending the law to "clarify" that it does not license discrimination against gays. But he also has no plans to push for affirmative state-wide bans on LGBT discrimination.) If RFRA treats LGBT discrimination differently from race discrimination -- if it exempts the former but not the latter -- then it takes a stand on the discrimination issue: it declares that sexual-orientation equality is less important than racial equality. On the other hand, if Indiana's RFRA treats LGBT and race discrimination the same, then it assumes the opposite position on the equality question -- and there is no reason for the state not to add sexual orientation to its list of criteria upon which businesses in that state may not discriminate.
There is an irony here. Indiana's and other recent RFRA laws seem to have been prompted by the rapid spread of same-sex marriage, and in particular by the possibility that the Supreme Court will soon hold that state laws prohibiting same-sex marriage are unconstitutional. But if the Court in fact decides this, the likely result will be to render RFRA laws irrelevant to the same-sex marriage question. If same-sex couples have a constitutional right to marry, then the state governments have a compelling interest in protecting their freedom to do so. And this compelling interest is sufficient to override claims of religious freedom under every current RFRA statute.
In other words, a SCOTUS decision recognizing the constitutional right of gay couples to marry -- ideally premised on a recognition that sexual orientation is a "suspect" basis of legal classification -- would make it clear that sexual-orientation equality, like racial equality (or for that matter religious freedom), is a central constitutional value that may not be sacrificed to the religious sensibilities of a few. Here's hoping Justice Kennedy feels the same way.
Monday, March 30, 2015
Confederate flags, government speech, and racial hierarchy
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.
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.
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.
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