Category: Sociology of Law


Cognitive Illiberalism and the Speech-Conduct Distinction

The partisanship and bad faith of judges who disagree with us has never been more obvious, or more pernicious. For many, the most irritating personality flaw of judicial politicos (and their fellowtravelers) isn’t the bottom-line results of the opinions themselves, it is that judges refuse to acknowledge their own biases, though it’s evident that they aren’t neutral umpires, but rather players in the game.  Indeed, almost every decision you read about these days comes accompanied by a reference  to the political party of the appointing President – as if you needed the help!  As Orin Kerr has brilliantly pointed out, “people who disagree with me are just arguing in bad faith.”

For the Cultural Cognition Project, the way that we talk about legal decisions – and decisionmakers – is a subject of study and concern.  We decided to take a careful look at this topic — which we’ve previously touched on in work like Whose Eyes Are You Going To Believe. Our motivation was to investigate how constitutional norms requiring neutrality in fact finding interact with individuals’ tendencies to perceive facts and risks in ways congenial to their group identities.  Building on Hastorf/Cantril’s social psychology classic, They Saw a Game: A Case Study, we’ve written a new piece about how motivated cognition can de-stabilize constitutional doctrine, render legal fact-finders blind to their own biases, and inflame the culture wars. Our resulting paper, “They Saw a Protest”: Cognitive Illiberalism and the Speech-Conduct Distinction, results from my collaboration with Dan Kahan, Don Braman, Danieli Evans, and Jeff Rachlinski.  The paper is just up on SSRN, and I figured to jump-start the conversation by using this post to talk about our experimental approach and findings.  (I think that Kahan is blogging on Balkinization later in the week about the normative upshot of Protest.)

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Compensation and Equality

The Conglomerate ran a symposium last week on executive compensation, sparked by Say on Pay.  My contribution, which talks about the effect of unionism on pay, is here.  My post there is a bit of a elliptical response to Frank’s recent comments on income inequality, which assert that:

“When the top 5% account for 35% of consumption in the US, there is no way to improve “the economy” (as measured by stock prices and GDP) without intensifying the very inequalities that gave rise to the crisis in the first place.  A weak labor market can’t bargain for the gains from productivity—they are going to the very top. Since the midterms, the President has shown little inclination to fight to tax those gains; rather, he cemented them into place with his recent tax deal. The inequality-intensifying dynamic is now self-reinforcing: those who bankrolled the fight against Obama’s modest efforts to tame inequality are more powerful thanks to their political victory in November.”

While I understand Frank’s point – and I think that the statistics he provides about relative income growth are sobering – I think that blaming law makers for failures to rein in inequality seems to me to put the cart before the horse.  We should really be asking whether the relatively more egalitarian consensus about social wealth distribution that held from 1940 through 1970 was (as Frank’s post suggests) an ordinary one in American history, and, if not, what caused it rise and to fall.  I suspect that law – including tax law – would play a pretty small role in that causal story.


Wikipedia’s First Lawyer

In Wikitruth Through Wikiorder, Salil Mehra and I detailed the history of Wikipedia’s dispute resolution process.  We highlighted the role of Alex Roshuk, a Brooklyn lawyer and site volunteer who played a key early role in the process by suggesting that the site’s dispute resolution process should look like a “very simplified version[s] of the commercial or international arbitration programs of the American Arbitration Association.” When writing the article, I confess I found it ironic that a lawyer proposed such a formal process, and believed that it was evidence that legalism is an inescapable (and dominant) part of American society.   I just found Roshuk’s response to our article online.   He offers a stinging indictment of the Wikimedia foundation, and what’s come of the dispute resolution system.  As he argues:

While I originally suggested in the fall of 2003 that Wikipedia have a structured dispute resolution process, instead of making this process simple and straightforward, ADR atWikipedia has become a complex system that has all kinds of hard to understand rules.  Perhaps it is the management of this dispute resolution process (or lack thereof) is what has caused or contributed to a lot of Wikipedia users leaving the project and the ripple effect this system has on the general behavior of editors and administrators whose behavior is mediated by this process . . . After seeing the discussion develop at Wikipedia in the fall of 2003 I saw that there were a lot of people who misunderstood the idea of arbitration, They wanted to make it something formal, like a Wikipedia court system, the ArbCom, as it was called became a place where someone could obtain status in the Wikipedia community, originally by being appointed by Mr. James “Jimbo” Wales, one of the founders of Wikipedia, and later by election. When I suggested this kind of system my intention was to get people to talk, mostly through mediation by a neutral third party, to come to a mutual understanding that editors were all contributing knowledge, not fighting against each other to be “right” or “wrong”.

This view of the pathologies of the Arbitration system isn’t, of course, unique to Roshuk, nor is it really in tension with the story Salil and I set out in Wikitruth.  But it is notable that Roshuk has such a dim view of the site’s excessive legalization, and that he attributes the dominance of law to a desire for status and hierarchy, instead of the formal structure of the process itself.

(Image source: Wikilove.)


The Esperanto of Citation Formats

Why Hasn't ALWD Succeeded?

Prompted by students, I’ve been thinking recently about the ALWD Citation Manual.  In doing so, I’m aware that I’m deeply in the weeds of legal-academic esoterica. Indeed, even thinking about writing about citation probably would be #2 or #3 on the list of things that distinguish airy and irrelevant law professors from grounded and practical lawyers.  Regardless, the topic seemed a good fit for a blog post, so here goes.

As you probably don’t care to know, the ALWD offers a non-bluebook approach to legal citation, designed to be authoritative (being created by legal writing professors, not students), coherent, and easy-to-use.  At various times, it’s been adopted by a large number of law school’s legal writing programs.  The biggest problem with the ALWD is that it isn’t The Bluebook.  Differences between the ALWD and the Bluebook aren’t always trivial in a world where minor differences in citation format can change a student’s first-year legal writing grade and determine membership on a law review.  When graduating from law school, ALWD followers may thus experience the same frustration that confronts users of obviously superior Dvorak keyboard.  Or, since the ALWD is  pushed by a tightly-knit, organized, guild of legal writing professors, perhaps the better analogy is to Esperanto.  If we all spoke the constructed language of peace and understanding, and cited our speeches using ALWD, we would better understand each other and be less aggravated by missing the commas between see and e.g. Alas, neither ALWD and Esperanto has gotten the market reception that their backers hoped for.  Why not?

To inquire a little bit into this topic, I asked one of my LRW colleagues to circulate to the LRW-professor list a question about their experiences with teaching citation. I got a ton of responses, for which I’m quite grateful.  They follow, shorn of attribution, after the jump.

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Baron on Leiter on Empirical Legal Studies

A few weeks ago I was on the train home, reading an old piece of scholarship from one of my favorite colleagues at Temple, Jane Baron.  Jane is well-known for her work on law and literature, the rhetoric of property/T&E, and interdisciplinary studies more generally.  The particular piece that I read on the train was “Interdisciplinary Scholarship as Guilty Pleasure: The Case of Law and Literature” (Law & Literature, 1999).   Jane’s observations about law and literature were strikingly relevant to the blog debate this summer which Brian Leiter instigated in his post “So-Called ‘Empirical Legal Studies.”  That debate was fierce, but no one made the precise point that Jane appears to have anticipated over a decade ago.  So I asked her to comment for us on Leiter & ELS. Here’s what she had to say.

“I arrived late to the debate Brian Leiter stirred up in his summer post on “So-Called ‘Empirical Legal Studies,’” whose incendiary title alone probably irritated self-identified ELS scholars. Of course, I’m not an ELS scholar, and frankly I have my own share of axes to grind about ELS. All those annoying numbers, data points, p’s and n’s—no one writes prose well enough to make those methods sections interesting to read. And I have already had my fill of faculty candidates with inchoate and incoherent ideas for adding an unspecified “empirical” component to their research—meaning they would count something if they could think of something to count.

But even given my own frustrations with ELS, two things particularly struck me about Leiter’s post. One was his assertion that the skill level of ELS scholars was “low, or at least lower than the typical . . . law & philosophy interdisciplinary scholar of yesteryear.” Considering Leiter’s 1992 characterization of then-extant law and philosophy scholarship as “intellectual voyeurism,” the insult to contemporary ELS is perhaps even stronger than many current ELS scholars might have realized.

The second thing that struck me was Leiter’s assertion that the ELS “mutual-admiration society” might be “disconnected from the central normative and conceptual questions of legal scholarship and legal education.” I think the challenge here was intended to provoke ELS scholars to show that their work does connect to those questions. Josh Wright has written thoughtfully on this question and probably lots of other folks have as well.

But I think it’s worth asking some different questions: why are we to assume that there are “central normative and conceptual questions of legal scholarship and legal education”? And should we be sure, as Leiter seems to be, that “smarts on your feet, the ability to draw conceptual distinctions, [and] construct and deconstruct arguments . . . are the . . . intellectual skills . . . needed in law”?

As I explored in earlier work, the compare-and-contrast analysis of interdisciplinary work constructs the very fields being dissected. In the realm of law and literature, for example, the tendency is to contrast the (allegedly) rich, textured, emotional realm of the literary with the (allegedly) dry, abstract, logical realm of the legal. This formulation effectively defines law as a pure domain of rules—a domain in which Langdell himself would have been happy to dwell.

But of course not all literature is morally rich (pick your favorite noire novel). And not all law is dry or abstract (pick your favorite opinion). We can depict literature as a form of plenitude and law as a form emptiness, but do we really want to?

In his ELS post, Leiter employs the inside/outside trope, to similar effect. He puts the ability to react fast, analyze arguments, and address ‘normative and conceptual questions’ inside law, and the ability to crunch numbers and analyze data outside law. But we can all think of some number crunching that is clearly inside law (B=P x L anybody?) and surely someone as intellectually accomplished as Leiter can’t mean to assert that there are no normative or conceptual questions outside law.

I am not just quibbling over words here. The question whether (all or some of) ELS work is good legal scholarship implicates the important question of what counts as “legal.” We can define law as a realm composed entirely (or centrally) of conceptual and normative questions. But we don’t have to. Indeed, at least some ELS work is designed to demonstrate that the normative questions that are ostensibly central in legal analysis are not in practice determinative, so that the “law” we thought we knew is not the “law” with which judges and practitioners work. Maybe that work is persuasive, and maybe it’s not. But at least that work is sensitive to the problem of defining law’s realm, a problem Leiter’s post assumes away.”

Thanks, Jane!

Rakesh Khurana’s “From Higher Aims to Hired Hands”

Rakesh Khurana’s book From Higher Aims to Hired Hands: The Social Transformation of American Business Schools and the Unfulfilled Promise of Management as a Profession is a profound contribution to sociology and institutional analysis. It is also a persuasive critique of some of the most disturbing trends in the American economy. While B-schools may seem of marginal relevance to the actual conduct of CEOs, Khurana observes in the book that they “occupy the commanding heights of higher education . . . and the kinds of knowledge and skill they purvey [are] now seemingly more essential to the tasks of university—and indeed societal—leadership than anything taught elsewhere on campus” (367). Khurana describes how leading B-Schools gained a world of power, prestige, and influence in the 20th Century, but lost their soul along the way.

The Biblical echo here is intentional: like Weber, Khurana traces the religious origins of the concepts of vocation and higher education. His focus on values—as well as his harsh indictments of business education past and present—could easily lead Khurana to jeremiads or charismatic prophecy, but he skillfully resists both of these temptations. He offers a sober vision for hope in the future of business education. Khurana’s work should inspire legal academics as well as business school professors (as it already has in a conference at the University of St. Thomas Law School (pdf) last year).

Khurana’s book has several points of interest for legal scholars. He focuses on the role of community and norms as sources of values distinct from markets and governmental hierarchies. As post-crisis interventions in the health care, finance, energy, and transport have demonstrated, the old debates over “market vs. government” solutions, or “private vs. public” spending, are of fading relevance for serious social theory in the US (however potent they may be on the campaign trail). Flaws in the “government” are all too often rooted in flaws in the “market,” which are in turn rooted in past flaws in policy, ad infinitum. Recent liberalization of campaign finance rules will only accelerate that dynamic of capture. Institutions that generate values are some of the few entities capable of short-circuiting this pernicious circularity.
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Foreclosure Mills Under Fire; A New Way Forward?

The early days of the financial crisis revealed megabanks indulging in sloppy and self-serving recordkeeping on the macro-scale. Now we see the devastation and disorder that happens when that same profit-at-all-costs mentality is inflicted on individuals. As has recently been reported, foreclosure horror stories include “a man who was foreclosed on when he didn’t have a mortgage and paid cash for the home; a home that had two foreclosure suits against it because both servicers claimed ownership of the title; and a couple foreclosed on over a contested $75 late fee.”

Reform groups like A New Way Forward are gaining strength and members because large financial institutions are increasingly untrustworthy. They no longer appear to be unitary “actors” at all, but rather shadowy and unstable ensembles of desks and divisions whose main goal is slipping by whatever bonus-maximizing scheme won’t set off alarms among risk managers and regulators. As Satyajit Das memorably puts it in his book Traders, Guns, and Money, “no trader making $1 million + a year is going to take questions from an auditor making $50,000 a year” (144).

Given this grim landscape, I wanted to highlight two hopeful items. First, this Monday the Roosevelt Institute will host a conference on the future of financial reform, featuring some of the most credible and compelling voices in the field (including Jennifer Taub, Mike Konczal, Richard Carnell, Sen. Jeff Merkley, and Michael Greenberger). Read More


The Quickly Unraveling Clerkship Market

It's not a tournament if no one wins.

It’s not surprising, but it is a little sad, to report that the judicial clerkship hiring plan is on its last legs.  The plan, as you may recall, organized hiring of clerks by prohibiting schools from sending materials before a certain date (the day after Labor day) and asking judges not to call to schedule and then hold interviews for a week and change  (this year, September 13 and 16th, respectively).  As anyone who studies these kinds of systems knows, a few defectors can put tremendous pressure on the rest, especially when no one is actually governed by law.  This unfortunate unraveling market syndrome results from a lack of will by the federal judges to centralize and control hiring, and possibly from the untimely death of the hiring plan’s originator, Third Circuit Judge Eddie Becker.  This year, three pieces of evidence suggest that the dam is about to burst:

1) Certain law schools submitted applications in the summer but haven’t -as far as I can tell- been punished with the blacklisting that the plan appears to contemplate.  I’ve heard rumors (and I’d love to be corrected) that Vanderbilt and Michigan, among others, are on that early-submitting-school list. [Update: individuals from Vandy and Michigan have both denied that their respective schools violate the plan by organizing submissions through their central offices, and believe that any packets sent before last week might have been put together by individual students.  They report that other institutions do submit school-sponsored packets over the summer.  Readers: help us name names.]

2) Certain circuits -the 4th in particular- simply decided to opt out of the plan altogether, and have largely finished hiring.

3)  Many, many federal judges have quietly opted out, by soliciting resumes directly, making calls when they please, or, more commonly, by hiring lawyers from practice rather than students.  Because lawyer hiring doesn’t have to happen on the plan’s schedule, judges can effectively poach from an active secondary market.  It’s also the case that the clerks they get from practice are probably on balance better than the ones they’d get from law school.  And it permits judges to avoid the ridiculously time consuming task of sorting through thousands of resumes — a logistic problem that they aren’t staffed to handle.  But in time when law school graduates are desperate for jobs, the trend is grim.

These trends combine to suggest that hiring plan can’t last.  Schools are in a bind.  If they comply with the plan, they risk harming their students, as the increasingly limited clerk positions go to applicants from non-conforming schools who submitted “early”. But if they deviate, the remaining judges who still feel strongly that the plan is a good policy may blacklist them.  The result is that law schools probably can no longer be counted on to support the hiring plan, since it is not serving their collective interest. The result: 2010’s hiring season will be the last in which the hiring plan has any particular force in disciplining the clerkship market.

I’d love to hear what you think about this dire picture.

(Image Source: Computational Legal Studies)

Future of the Internet Symposium: An Iron Cage for the iPhone Age

William Gibson’s essay on “Google’s Earth” deserves to be read by anyone interested in the “future of the internet.” Gibson states that “cyberspace has everted. . . . and [c]olonized the physical”, “[m]aking Google a central and evolving structural unit not only of the architecture of cyberspace, but of the world.” He’s reminded me of James Boyle’s observation that:

Sadly for academics, the best social theorists of the information age are still science fiction writers and, in particular cyberpunks—the originators of the phrase ‘cyberspace’ and the premier fantasists of the Net. If one wants to understand the information age, this is a good place to start.

Some legal academics have taken this idea to heart; for example, Richard Posner apparently began writing Catastrophe in response to Margaret Atwood’s Oryx and Crake. With that in mind, I wanted to point to some speculative fiction that I think ought to inform our sense of “the future of the internet.”
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Self-Sufficiency and Decoupling

I was recently reviewing some of David Singh Grewal’s work, including this excellent essay on Keynes and globalization. Grewal’s book on Network Power was very insightful, and his examination of Keynes promises to advance economic debates long stalled in stale orthodoxies. Grewal describes Keynes’s intellectual evolution from ardent free trader to skeptic, giving this explanation for the shift:

[W]hile Keynes cited many reasons for limiting economic globalization, including for the sake of what we now call the ‘policy space’ available to governments to intervene in the economy, it was international peace that was his foremost concern. Because globalization allows economic relations to form above and outside the state, there is no obvious route to a solution if things go awry (as might be expected) in complex chains of production and investment that cross national borders.

Grewal argues that current global imbalances are underwritten by the “novel combination of globalized finance and a world reserve currency that can be inflated at will.” His diagnosis reminds me of Manuel Castells’s prophetic dissection of dangerous uses of American financial power in the book The Economic Crisis and American Society—a work that, sadly, is as relevant today as it was when it was published in 1980.
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