Category: Law and Humanities

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The Law & Economics of Quaker Litigation

quakers.bmpI feel duty bound to write a post defending the honor of 17th century Quaker grandees. Their reputation has suffered enough. The Quakers had (still have?) a tradition of discouraging intra-Quaker litigation in the secular courts. In England, Quaker eschewal of litigation was founded in part on the religious inaccessibility of the courts. Courts required oaths, and Quakers, taking Christ’s admonition in the New Testament to “swear not” literally, refused to take oaths. Once the Quakers started founding settlements in America, however, this problem went away, as Pennsylvania law allowed for “affirmations” in place of oaths, an explicit religious accommodation that eventually found its way into the Constitution. Nevertheless, Quaker sermons and pamphlets continued to insist that Friends should resolve their disputes amicably before the Monthly Meetings of the Society rather than sue in the secular courts.

In his book Of “Good Laws” and “Good Men”: Law and Society in the Delaware Valley, 1680-1710, William Offutt compared the records of the Monthly Meetings with the local court records to determine the extent to which Quakers actually lived up to their own sermons. What he found was that despite the nominal threat of excommunication for filing suit against another Friend, Quakers were quite enthusiastic about suing one another. Looking at the records of the Monthly Meetings, in turn, he found that congregational leaders were more likely to “sue” other congregational leaders before the Monthly Meetings but that Quaker leaders were perfectly happy to sue ordinary Quakers before the secular courts. Offutt rather archly suggests that the reasons for this had to do with the (hypocritical) desire of Quaker elites to maintain their images with other Quaker elites. Economics, however, suggests a more charitable reading of the actions of Quaker leaders.

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In Memoriam: Clifford Geertz

geertz.jpgI recently noticed an obituary for Clifford Geertz on PTDR. Law & the humanities have had an uneasy relationship for some time now, but one of the few humanists with an undisputed place in the canon was “anthropologist” Clifford Geertz. I use the scare quotes because Geertz appeared to me to be far more than a type of social scientist, but a scholar whose deep sense of the connections between belief and desire, knowledge and will, could reinvigorate whole fields.

For a taste of the possibilities, check out this review of Posner’s book Catastrophe in the NYRB:

Posner largely handles the problem of estimating danger via sheer postulation—weird and (one assumes, unintentionally) madcap burlesque. “Suppose the cost of extinction of the human race…can be very conservatively estimated at 600 trillion dollars [and there is] a 1 in 10 million annual probability of a strangelet disaster.”

Geertz could look at the fashions and fads of the modern academy with the same mixture of sympathy and detachment he brought to the customs of Berbers or Balinese villagers. This long essay on a “life of learning” can be inspirational to anyone who has chosen “science as a vocation.” After college, I was trapped in a very frustrating graduate program for a while, and I remember taking great comfort in the thought that someone like Geertz managed to transcend disciplinary boundaries while still finding a “home” in the academy.

Geertz offered us a vision of humanities informing law in the deepest sense, by showing us the inextricable intertwining of description and judgment (or, as lawyers often experience, fact and law). I particularly like this quote from Geertz’s essay, Deep Play in a Balinese Cockfight:

Any expressive form works (when it works) by disarranging semantic contexts in such a way that properties conventionally ascribed to certain things are unconventionally ascribed to others, which are then seen actually to possess them. To call the wind a cripple, as Stevens does, to fix tone and manipulate timbre, as Schoenberg does, or, closer to our case, to picture an art critic as a dissolute bear, as Hogarth does, is to cross conceptual wires; the established conjunctions between objects and their qualities are altered and phenomena—fall weather, melodic shape, or cultural journalism—are clothed in signifiers which normally point to other referents. Similarly, to connect—and connect, and connect—the collision of roosters with the divisiveness of status is to invite a transfer of perceptions from the former to the latter, a transfer which is at once a description and a judgment [emphasis added].

Some scholars have worked out the implications of thoughts like these with great power and precision–such as Balkin (and Levinson’s) work on Law and Music, or Bill Eskridge’s work on Gadamer and statutory interpretation, or some cyberscholars on metaphorical descriptions of cyberspace (like Cohen and Hunter). But I think there is still a rich vein of work to be inspired by Geertz’s classic elaborations of the idea that “man is an animal suspended in webs of significance he himself has spun.”

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Xoxohth, Civility, and Prestige: Part I

xoxo.jpgXoxohth claims to be the “most prestigious law school admissions discussion board in the world.” According to its marketing materials, it controls 70% of the online “market” for “higher education and career discussion”, with around 6000 posts a day on various topics. One of its founders reports that the site receives 350,000 to 500,000 unique visitors every month, making it significantly more trafficked than any other law blog, with the exception of Volokh. (By comparison, we get 60-70K unique hits a month.)

But.

Among many legal scholars and administrators, there is a shared impression that discussion at XO is overrun by sexist, racist, anti-semitic, and just plain foolish talk. The well-known Leiter-XO engagement (see here) is just one example, but it isn’t alone. Based on correspondence, I have learned that multiple law school deans and assistant deans have dealt with the Board when trying to mediate online disputes involving their school’s students. XO has been threatened with legal action (at least twice) involving alleged defamation on the board, although the site is not, to my knowledge, involved in pending litigation. Some wish the entire XO discussion board was a hoax (although others think it may be providing a public service) and some, well, some are mad as hell:

If this is what other lawyers are going to be like, I want out. They make us all look like utter a[*******]. People should avoid law school because it sucks, not because of these jerks.

I’ve written a bit about the Board before, in the context of a US News citation dispute, and since then, I’ve been in contact with one of the Board’s administrators, Anthony Ciolli, a 3L at Penn Law. I think the board is pretty fascinating, primarily because its anonymity enables, and its format records, discussions among rising lawyers that are frank and heterodox (in legal culture) with respect to race, gender relations, and professional development. It isn’t the only forum for such discussions, but it may be the largest.

In subsequent posts, I will be exploring three basic questions about XO.

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Does Reading Literature Give You More Empathy?

literature1.jpgThe British Psychological Society reports the results of a new study on the effects of reading literature:

The more fiction a person reads, the more empathy they have and the better they perform on tests of social understanding and awareness. By contrast, reading more non-fiction, fact-based books shows the opposite association. That’s according to Raymond Mar and colleagues who say their finding could have implications for educating children and adults about understanding others.

Finding out how much people read is always difficult because it’s socially desirable for people to report that they read a lot. Mar and colleagues avoided this by asking 94 participants to identify the names of fiction and non-fiction authors embedded in a long list of names that also included non-authors. Prior research has shown this test correlates well with how much people actually read. Among the authors listed were Matt Ridley, Naomi Wolf (non-fiction), Toni Morrison and PD James (fiction).

The more authors of fiction that a participant recognised, the higher they tended to score on measures of social awareness and tests of empathy – for example being able to recognise a person’s emotions from a picture showing their eyes only, or being able to take another person’s perspective. Recognising more non-fiction authors showed the opposite association.

The researchers surmised that reading fiction could improve people’s social awareness via at least two routes – by exposing them to concrete social knowledge concerning the way people behave, and by allowing them to practise inferring people’s intentions and monitoring people’s relationships. Non-fiction readers, by contrast, “fail to simulate such experiences, and may accrue a social deficit in social skills as a result of removing themselves from the actual social world”.

However, a weakness of the study is that the direction of causation has not been established – it might simply be that more empathic people prefer reading novels.

The study is by R.A. Mar, K. Oatley, J. Hirsh, J. dela Paz, & J.B. Peterson, Bookworms Versus Nerds: Exposure to Fiction Versus Non-fiction, Divergent Associations with Social Ability, and the Simulation of Fictional Social Worlds, 40 Journal of Research in Personality 694-712 (2006). It is available here, but for a fee.

Hat tip: Ilya Somin.

Net Neutrality: Law, Money, and Culture

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Bill Moyers enters the fray in the raging legal debate over net neutrality tonight, with a documentary on PBS. The Wu/Yoo debate on the topic gets the central issues on the table: should we permit dominant ISP’s (like Verizon and Comcast) to discriminate among the “bits” on their networks, giving more rapid service to preferred sites? I’ve offered some tentative thoughts on the matter, and these continue in that vein.

The net neutrality battle may offer us a classic efficiency-equity tradeoff. Imagine a world where everything on the internet came to you four times faster, but dominant ISP’s could cut deals with certain sites that made their content come 10 times faster. On many classic economic accounts, that would be Pareto-optimal–everyone’s better off. As some very smart people (like Philip Weiser) have claimed, that differential pricing could finally lead to revenue levels that would remedy the US’s unacceptably slow pace of getting people connected to broadband (and faster) networks.

But on the other hand, what about the competitive disadvantage of those unable to cut the deals? Compare this article reprinted in the Boston Pilot (the Boston Roman Catholic Archdiocese’s official paper) touting net neutrality and this piece from Brookings-AEI disparaging it as a form of “price control.” The economists just tend to miss the cultural importance of media consolidation. That’s what convinced me that the stakes are ultimately a “battle for mindshare” (to use Hannibal Travis’s evocative metaphor), and can’t be cast in simple economic terms.

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Law & Literature Resources

book1.bmpThe topic of this week’s research canons series at PrawfsBlawg is law and literature, a field I find of great interest (I have written a few papers about law and literature). If you’re interested in law and literature, you might find my website for the Law & Humanities Institute to contain some useful information.

There are several web pages that may be of interest:

1. General Resources (websites, syllabi, etc.)

2. A List of Literary Works About the Law

3. A Chronological Bibliography of Works About Law & Literature (1982-present)

4. A Bibliography of Law & Literature Scholarship About Particular Writers

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Law Movie Canon

Since PrawfsBlawg is experimenting with “research canons,” I thought I’d take this opportunity to create a “law movie canon” post. So here’s a list of my five favorite law movies. I’m basing this list on the following totally objective standard: Do I really like the movie? I actually happen to be an expert in things I like, and I therefore believe I am uniquely situated to create this list.

So here’s my list, in no particular order:

1. Anatomy of a Murder

This is a wonderful film about a murder trial, filled with brilliant trial scenes and tons of great issues ranging from attorney ethics to truth-seeking at trial.

2. Breaker Morant

A fantastic film about the trial of three soldiers who follow an order to kill a group of prisoners of war in violation of the rules of warfare. A deep exploration of the nature of law and justice during wartime.

3. My Cousin Vinny

Perhaps the best legal comedy movie ever made. Absolutely hilarious.

4. To Kill A Mockingbird

A superb film adapted from a great book.

5. Twelve Angry Men

A terrific exploration of the themes of judging and the role of perception and experience in the legal decision-making process and a great demonstration of the value of persistent questioning and analysis.

Of course, there are many more law movies I’ve liked, but these are a class apart. What are your favorite law movies?

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‘See At Least One Subtitled Movie A Month’

See at least one movie with subtitles a month. bfbroke06.jpg

This is Kwame Anthony Appiah’s injunction to the audience at a Fordham conference on global citizenship over this past weekend. Appiah, the dazzling University professor at Princeton, believes in conversations across cultures. Such conversations, he hopes, will help us to understand one another, perhaps even inculcate global feelings.

Some might argue that this might lead us to recognize what we all hold in common. But Appiah believes in difference as well. The conversation might lead us to recognize what divides and differentiates us as well.

Appiah is not a cultural relativist: tolerance, he notes, suggests a view as to what is not to be tolerated.

So here is my question for you: Have you learned something from watching a film with subtitles (and, if so, what film)? Did it reveal commonality or difference?

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Solum on the Need for Opinions

opinion.jpgLarry Solum recently posted a kind response to my post on the need for judicial reasoning. Here is a taste of his analysis:

An obligation to offer justification has obvious accuracy-enhancing effects: it forces the decision maker to engage in an internal process of deliberation about explicit reasons for an action and to consider whether the reasons to be offered are “reasonable” and whether they are likely to be sustained in the event of appeal. Balancing approaches, which consider the costs of procedural rules as well as their accuracy benefits, point us in the direction of the costs associated with requiring justifications on too many occasions and of the costs of requiring justificatory effort that is disproportionate to the benefits to be obtained. Requiring reasons facilitates a right of meaningful participation as well: when a judge gives reasons, then the parties affected by the action can respond–offering counter reasons, objecting to their legal basis, and so forth. Moreover, the offering of reasons provides “legitimacy” for the decision.

Very helpful. Clearly, the procedural justice literature has much to say on whether it is illegitimate for judges to rule without explanation. It seems to me that much of Larry’s discussion would seem to foreclose the legitimacy of what our commentators have suggested as the backstop for expressed opinions: back-pocket explanations, i.e., reasons produced by litigant demands.

But I still think that much of our thinking on the problem of “why and when reasons” is driven by biases built into our legal-DNA by the law school experience. I’ll ramble a bit more on this problem below the jump.

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Should the Legal Academy Be Interdisciplinary?

lawbooks1a.jpgOrin Kerr has an interesting post with excerpts from a debate between Stephen M. Feldman and Richard Seamon about the legal academy. Fedman writes that law schools ought to become even more interdisciplinary than they already are: “Interdisciplinary scholarship, done well, can generate creative methods and original insights in previously stale areas of thought.” Seamon, in contrast, observes:

The problem with promiscuous interdisciplinarity is that it does little to improve our graduates’ ability to practice law or to improve the quality of justice. Furthermore, it distracts us from pursuits that would bring such improvement. . . . There seems to be a strong consensus that law schools do not adequately prepare their graduates to practice law and that basic, competently rendered legal services are not widely available to the poor and the working class. Under those conditions, it is selfish and irresponsible for the legal academy to pursue interdisciplinarity on a broad scale so that law professors can feel good about themselves despite their abandonment by the legal profession.

I agree with Feldman. Seamon provides no reason why interdisciplinary studies are unhelpful to the practice of law or the quality of justice. His main gripe is that legal services are not adequately provided to the poor, but this has little to do with an interdisciplinary focus. Indeed, perhaps the study of sociology and literature might inspire students to be more aware of the need for legal services for the poor. There is no reason to assume that teaching students more about legal doctrine will lead them to careers in the public interest. Interdisciplinary scholarship and courses teach students a broader view of the law — to be more critical of the existing legal structure and to understand the role it plays in society. This broader vision of the law can be very helpful for the law’s future development. Many students one day will become judges and lawmakers, and having had some basic exposure to statistics, economics, literature, philosophy, sociology, psychology, and other disciplines will hopefully let them improve the law, which is often hopelessly antiquated in its understandings of these disciplines. The law of evidence, for example, is based on faulty assumptions about psychology. Many opinions make judgments based on unsound empirical assumptions. Many a judge could use a lesson in statistics. And many a judge or legislator would benefit from the depth of normative thought and reasoning that reading literature and philosophy can help develop.

I often find that much about the current practice of law is unimaginative and mechanical. I’ve read many a brief that was like a paint-by-the-numbers exercise. The best lawyers, in my view, have a broader understanding than just rules and legal doctrine. They know how to persuade the judges they appear before; they know how to pick juries; they know how best to resolve a dispute, whether by trial or settlement. Lawyers are problem solvers, and they must utilize a wide range of skills and bodies of knowledge.

Also, it is hard to imagine how law can be separated from interdisciplinary approaches. The formalists of the late 19th Century wanted to see law as something completely self-sufficient and pure. But that just isn’t how law is.