Category: Bright Ideas


Ideological Blindspots and More

Here are two recent posts from Max Stearns’s The Blindspot:

Ideological Blindspots (part 2): The Grandchildren

Max Stearns

Liberals and conservatives tend to take sharply divergent views of two major issues: global climate change and the looming national debt. But they share one attribute in common. Both sides believe that by focusing on the issue that most concerns them, they, unlike their opponents, are protecting the interests of their children, grandchildren, and great grandchildren. Caring about our progeny demands attending to both issues, and also to understanding how they interrelate.

Conservatives point out the looming national debt, which, as I write, is hovering at just shy of $20 trillion dollars. See The federal deficit is hovering at $591 billion. To understand what this means, we need to clarify some terminology.   Read More


The Blindspot: Must Read New Blog

My colleague Max Stearns kicked off his new blog, The Blindspot, whose timeliness is matched by its insights. Max explains:

I’m a different kind of law professor. Over the past twenty-five years, I have come to appreciate that we all have blindspots. We see the world with the benefits and burdens of our own framings. We often don’t realize how those framings, sometimes called “priors,” disallow us even to see what our opponents regard as central to their different understandings of the world. My academic background is a bit unusual, see here, and my interests are varied. One common thread in my academic work has been to shine a light on the blindspots themselves, pointing out what others miss.

I’m going to repost two recent pieces on The Blindspot so you can see for yourselves. (With Max’s permission).


The Legacy of Ruth Bader Ginsburg

Edited by esteemed civil procedure scholar Scott Dodson, the newly released book “The Legacy of Ruth Bader Ginsburg” is a significant contribution. The release is beautifully timed: the public is rightfully taken with Justice Ginsburg’s insights. Hopefully, I will have Professor Dodson back to the blog to talk about the book in detail but for now here is a description.

Ruth Bader Ginsburg is a legal icon. In more than fifty years as a lawyer, professor, appellate judge, and associate justice of the U.S. Supreme Court, Ginsburg has influenced the law and society in real and permanent ways. Her impact on the law cannot be overstated. Yet no book on Ginsburg’s legacy exists. This book fills that gaping void by chronicling and evaluating the remarkable achievements Ginsburg has made over the past half century. Including chapters written by prominent court watchers and leading scholars from law, political science, and history, it offers diverse perspectives on an array of doctrinal areas and on different time periods in Ginsburg’s career. Together, these perspectives document the impressive – and continuing – legacy of one of the most important figures in modern law.

The book’s contributors include Nina Totenberg of NPR fame, Chief Judge Robert Katzmann (Second Circuit), Reva Siegel (Yale) and Neil Siegel (Duke), Lani Guinier (Harvard), Herma Hill Kay (Berkeley), Dahlia Lithwick (Slate), Aziz Huq (Chicago), Cary Franklin (Texas), and Tom Goldstein (SCOTUSblog), among others. Jacket reviews are by Trevor Morrison (NYU) and Ginsburg’s two biographers, Wendy Williams (Georgetown) and Jane De Hart (UCSB). Readers can download a free e-copy of the Preface, Table of Contents, and Coda from SSRN.

The book’s already gotten some good press. My co-blogger and First Amendment guru Ron Collins has a write up of the book on SCOTUSblog (along with some other recommended books). Civil rights scholar Nancy Leong of Denver University School of Law has a podcast interview of Scott Dodson on the book for her inaugural episode of RightsCast. Above the Law’s David Lat has been Tweeting about it. And Justice Ginsburg herself mentioned it to a huge crowd at the AALS Conference earlier this month and said that she would make sure it was available for purchase in the Supreme Court gift shop.


Marin Levy’s Judging Justice on Appeal in YLJ

Professor Marin Levy has a superb review of Injustice on Appeal: The United States Court of Appeals in Crisis written by my colleague William Reynolds and William Richman. Professor Levy is spot on when she says that “[o]ver the past thirty years, no one has contributed more” to the study of the federal judiciary and its crisis of its crushing workload “than two court scholars together—William M. Richman and William L. Reynolds.” As she notes: “Through a series of critical articles,Richman and Reynolds were able to pinpoint the precise effects of the caseload crisis, both on litigants and the system as a whole. Furthermore, they were able to show the interplay of these various effects, providing a holistic account of the problem in a way that no one else had done.” In her view, their “recent book, Injustice on Appeal: The United States Courts of Appeals in Crisis, stands as a culmination of their earlier work, bringing together vital analysis of the caseload crisis, the ways in which appellate review has suffered as a result of that crisis, and potential solutions. More broadly, Injustice on Appeal stands as one of the most comprehensive and thoughtful accounts of the largest problem facing the federal judiciary today.”Injustice on Appeal

In her review published in the Yale Law Journal, Prof. Levy concludes:

The story of Injustice on Appeal is one of ever-shrinking resources—the courts of appeals have had to perform the same set of critical functions with fewer and fewer means per appeal to do so. Yet there is another story here as well about the resources of the academy. Legal scholars in general spend a great deal of time devoted to theory and doctrine. And yet, we spend relatively few resources on studying the institutions that make up our legal system, particularly on the twin positive and normative questions about how they actually function and how they should function. Richman and Reynolds’s work serves as a call to arms for the academy to take up these critical inquiries.

Ultimately, Richman and Reynolds have provided a great deal for court scholars following in their wake. They have carefully and thoughtfully delineated the largest problem facing the federal judiciary in the past several decades—one that affects tens of thousands of litigants each year. With the quality of overall judicial review in doubt, it is for the academics to carefully study—using both qualitative and quantitative tools—the use of court practices. From judicial voting rules to visiting judges, from mediation to staff organization, there are numerous areas ripe for academic review about how to improve judicial review. In Injustice on Appeal, Richman and Reynolds have laid the groundwork; it is up to the next generation of court scholars to find the way.

Professor Levy has made her own formidable contributions to the discussion that Profs. Reynolds and Richman have been engaging in for a better part of 30 years. Her work includes “Judging the Flood of Litigation,” 80 U. Chi. L. Rev (2013), “Judicial Attention as a Scarce Resource: A Preliminary Defense of How Judges Allocate Time Across Cases in the Federal Courts of Appeals,” 82 Geo. Wash. L. Rev. 401 (2013), “The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts,” 61 Duke L. J. 315 (2011), and “The Costs of Judging Judges by the Numbers,” 28 Yale L. & Pol’y Rev. 313 (2010) with Kate Stith & Judge José A. Cabranes. Those interested in figuring out how to solve the problems facing the judiciary will do well to follow her work.

All fiction to some degree takes place in an invented world, with invented people doing unreal things. In a way the upside down definition may be the most useful - fantasy is books published by fantasy imprints and shelved in the fantasy sections. As far as what content makes a book a fantasy book rather than general fiction, it varies with the reader. I guess you know it when you see it. Although magic swords are often a giveaway.


Law and Hard Fantasy Interview Series: Joe Abercrombie

joe_abercrombieThis post is a part of our ongoing interview series with fantasy authors who generally write in the burgeoning genre of gritty / hard / dark epic fantasy.   The series began with this book review post, and continued with interviews of George R. R. Martin and Patrick Rothfuss, and Mark Lawrence.

Today, I’m interviewing Joe Abercrombie.  Joe is the author, most famously, of the “First Law” trilogy, and some more recent spin-offs set in that world.  Joe’s writing is characterized by dark (very, very dark) humor, grit (as in dirt), and an unhealthy amount of revenge.  He’s on twitter, he has a blog, and he was nice enough to agree to answer some questions from me about his writing and its relationship to law.

DH: There’s been a lot of talk in recent years about the collapse of the “fantasy” and “fiction” categories. Is there anything useful about the distinction? If so, what are the minimal characteristics of books that would stay on your fantasy shelf?

JA: Any question about definitions and categorisations is always a complicated one, with lots of confusions and blurry areas. All fiction to some degree takes place in an invented world, with invented people doing unreal things. In a way the upside down definition may be the most useful – fantasy is books published by fantasy imprints and shelved in the fantasy sections. As far as what content makes a book a fantasy book rather than general fiction, it varies with the reader. I guess you know it when you see it. Although magic swords are often a giveaway.

DH: One marker of the trend toward harder / darker fantasy is more fulsome world-building and world-planning. But you are well-known as a guy who hates maps (recent books excepted!) Here’s a practical question: do you sit down and think about the rules of the world before you start to write, or do you start writing and work them out as you go along?

JA: I don’t know that I’d necessarily agree with your first assertion, there. I think a marker of the trend towards harder/darker fantasy is a greater focus on character and internal life over setting and world building, certainly I see that as key in what I’m doing. But you want the backdrop to be consistent and coherent. So you have some ideas about the rules of the world. Certainly you have some strong ideas about the effect certain cultures will have on the way the characters think. That’s the kind of world building I’m most interested in, I suppose you could say, the kind that has a direct effect on the behaviour of the characters, rather than the kind that specifies exactly how many thousand years the tower of Zarb had guarded Dragonfire Pass.

DH: What do you have against maps anyway?

JA: I love maps. I have loads of them. But I don’t necessarily want to share them with the reader. I want the reader to see the action in close up, not wide shot. I want them to be with the characters, not thinking so much about the setting.

DH: Is there any civil law in your world? By that, I mean a system by which contractual breaches and torts are enforced outside of blood feuds, deeds are recorded, property disputes disposed of? What does that system look like?

JA: It depends a little on the culture. In the North there has been a relatively primitive tradition of ownership by clans, judgement by elders and chieftains, but it’s broken down during a period of sustained warfare and a new king has tried to impose a new and much more centralised system, with varying success. The Union, by contrast, has a well-established aristocracy and a complex and extensive centralising bureaucracy, although with a weak king on the throne and a lot of pressure from external threats it’s become rather a corrupt system, prone to being carved into personal fiefdoms by powerful and charismatic individuals in the government. Hardly surprising, in a way, since the whole thing has been explicitly designed to allow one man (Bayaz) to maintain control. The whole thing’s further distorted by the conflict between old power and new money, as the Union has spread to include more diverse cultures and the merchant class has gained in influence.

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The Dualities of Freedom and Innovation

What a rollercoaster week of incredibly thoughtful reviews of Talent Wants to Be Free! I am deeply grateful to all the participants of the symposium.  In The Age of Mass Mobility: Freedom and Insecurity, Anupam Chander, continuing Frank Pasquale’s and Matt Bodie’s questions about worker freedom and market power, asks whether Talent Wants to Be Free overly celebrates individualism, perhaps at the expense of a shared commitment to collective production, innovation, and equality. Deven Desai in What Sort of Innovation? asks about the kinds of investments and knowledge that are likely to be encouraged through private markets versus. And in Free Labor, Free Organizations,Competition and a Sports Analogy Shubha Ghosh reminds us that to create true freedom in markets we need to look closely at competition policy and antitrust law. These question about freedom/controls; individualism/collectivity; private/public are coming from left and right. And rightly so. These are fundamental tensions in the greater project of human progress and Talent Wants to Be Free strives to shows how certain dualities are pervasive and unresolvable. As Brett suggested, that’s where we need to be in the real world. From an innovation perspective, I describe in the book how “each of us holds competing ideas about the essence of innovation and conflicting views about the drive behind artistic and inventive work. The classic (no doubt romantic) image of invention is that of exogenous shocks, radical breakthroughs, and sweeping discoveries that revolutionize all that was before. The lone inventor is understood to be driven by a thirst for knowledge and a unique capacity to find what no one has seen before. But the solitude in the romantic image of the lone inventor or artist also leads to an image of the insignificance of place, environment, and ties…”.  Chapter 6 ends with the following visual:


Dualities of Innovation:

Individual / Collaborative


Accidental /Deliberate

Global /Local

Passion / Profit





And yet, the book takes on the contrarian title Talent Wants to Be Free! We are at a moment in history in which the pendulum has shifted too far. We have too much, not too little, controls over information, mobility and knowledge. We uncover this imbalance through the combination of a broad range of methodologies: historical, empirical, experimental, comparitive, theoretical, and normative. These are exciting times for innovation research and as I hope to convince the readers of Talent, insights from all disciplines are contributing to these debates.


Individuals & Teams, Carrots & Sticks

I promised Victor Fleisher to return to his reflections on team production. Vic raised the issue of team production and the challenge of monitoring individual performance. In Talent Wants to Be Free I discuss some of these challenges in the connection to my argument that much of what firms try to achieve through restrictive covenants could be achieved through positive incentives:

“Stock options, bonuses, and profit-sharing programs induce loyalty and identification with the company without the negative effects of over-surveillance or over-restriction. Performance-based rewards increase employees’ stake in the company and increase their commitment to the success of the firm. These rewards (and the employee’s personal investment in the firm that is generated by them) can also motivate workers to monitor their co-workers. We now have evidence that companies that use such bonus structures and pay employees stock options outperform comparable companies .”

 But I also warn:

 “[W]hile stock options and bonuses reward hard work, these pay structures also present challenges. Measuring employee performance in innovative settings is a difficult task. One of the risks is that compensation schemes may inadvertently emphasize observable over unobservable outputs. Another risk is that when collaborative efforts are crucial, differential pay based on individual contribution will be counterproductive and impede teamwork, as workers will want to shine individually. Individual compensation incentives might lead employees to hoard information, divert their efforts from the team, and reduce team output. In other words, performance-based pay in some settings risks creating perverse incentives, driving individuals to spend too much time on solo inventions and not enough time collaborating. Even more worrisome is the fear that employees competing for bonus awards will have incentives to actively sabotage one another’s efforts.

A related potential pitfall of providing bonuses for performance and innovative activities is the creation of jealousy and a perception of unfairness among employees. Employees, as all of us do in most aspects of our lives, tend to overestimate their own abilities and efforts. When a select few employees are rewarded unevenly in a large workplace setting, employers risk demoralizing others. Such unintended consequences will vary in corporate and industry cultures across time and place, but they may explain why many companies decide to operate under wage compression structures with relatively narrow variance between their employees’ paychecks. For all of these concerns, the highly innovative software company Atlassian recently replaced individual performance bonuses with higher salaries, an organizational bonus, and stock options, believing that too much of a focus on immediate individual rewards depleted team effort.

Still, despite these risks, for many businesses the carrots of performance-based pay and profit sharing schemes have effectively replaced the sticks of controls. But there is a catch! Cleverly, sticks can be disguised as carrots. The infamous “golden handcuffs”- stock options and deferred compensation with punitive early exit trigger – can operate as de facto restrictive contracts….”

 All this is in line with what Vic is saying about the advantages of organizational forms that encourage longer term attachment. But the fundamental point is that stickiness (or what Vic refers to as soft control) is already quite strong through the firm form itself, along with status quo biases, risk aversion, and search lags. The stickiness has benefits but it also has heavy costs when it is compounded and infused with legal threats.


The Hard Questions about Talent, Market Regulation, and the World of Work

Each in his own sharp and perceptive way, Brett Frischmann, Frank Pasquale and Matthew Bodie present what are probably the hardest questions that the field of human capital law must contemplate. Brett asks about a fuller alternative vision for line drawing between freedom and control. He further asks how we should strike the balance between regulatory responses and private efforts in encouraging more openness. Finally, he raises the inevitable question about the tradeoffs between nuanced, contextual standards (what, as Brett points out, I discuss as the Goldilocks problem) versus rigid absolute rules (a challenge that runs throughout IP debates and more broadly throughout law). Frank and Matt push me on the hardest problems for any politically charged debate: the distributive, including inadvertent and co-optive, effects of my vision. I am incredibly grateful to receive these hard questions even though I am sure I am yet to uncover fully satisfying responses. Brett writes that he wanted more when the book ended and yes, there will be more. For one, Brett wanted to hear more about the commons and talent pools. I have been invited to present a new paper, The New Cognitive Property in the Spring at a conference called Innovation Beyond IP at Yale and my plan is to write more about the many forms of knowledge that need to be nurtured, nourished, and set free in our markets.

Matt describes his forthcoming paper where he demonstrates that “employment” is reliant on our theory and idea of the firm: we have firms to facilitate joint production but we need to complicate our vision of what that joint production, including from a governance perspective, looks like. “Employers are people too” Matt reminds us, as he asks, “Do some of the restrictions we are talking about look less onerous if we think of employers as groups of people?” And my answer is yes, of course there is a lot of room for policy and contractual arrangements that prevent opportunism and protect investment: my arguments have never been of the anarchic flavor “let’s do away with all IP, duties of loyalty, and contractual restrictions”. Rather, as section 2 (chapters 3-8) of Talent Wants to Be Free is entitled we need to Choose Our Battles. The argument is nicely aligned with the way Peter Lee frames it: we have lots of forms of control, we have many tools, including positive tool, to create the right incentives, let us now understand how we’ve gotten out of balance, how we’ve developed an over-control mentality that uses legitimate concerns over initial investment and risks of opportunism and hold-up to allow almost any form of information and exchange to be restricted. So yes: we need certain forms of IP – we have patents, we have copyright, we have trademark. Each one of these bodies of law too needs to be examined in its scope and there is certainly some excess out there but in general: we know where we stand. But what about human capital beyond IP? And what about ownership over IP between employees and employers?

So yes, we need joint inventorship doctrines for sure when two inventors work together. But what about firm-employee doctrines? Do we need work-for-hire and hired-to-invent doctrines? Here we arrive to core questions about the differences between employment versus joint ventures or partnerships between people. And even here, the argument is that we continue to need during employment certain firm protections over ownership. But the reality is that so many highly inventive and developed countries, diverse as Finland, Sweden, Korea, Japan, Germany, and China, all have drawn more careful lines about what can fall under “service inventions” or inventions produced within a corporation. These countries have some requirement for fair compensation of the employee, some stake in inventions, rather than a carte blanche to everything produced within the contours of the firm. The key is a continuous notion of sharing, fairness and boundaries that we’ve lost sight of. Intense line-drawing as Brett would have it that is based on context and evidence, not on an outdated version of the meaning of free markets.

What about non-competes and trade secrets? Again, my argument is that these protections alternate, they should be discussed in relation to one another, and we need to understand their logic, goals, and the cost/benefit of each given that they exist in a spectrum. Non-competes is the harshest restriction: an absolute prohibition post-employment to continue in one’s professional path outside the corporation. This is unnecessary. The empirics are there to support their absolute ban rather than the fine dance that of balancing that is needed with some of the other protections. Sure it makes life momentarily easier for those who want to use non-competes, but over time, not only can we all live without that harsh tool, we will actually benefit from ceding that chemical weapon in the battle over brains and instead employ more conventional arms. And yet, even in California, this insight doesn’t and shouldn’t extend to partnerships. The California policy against non-competes is limited to the employment context. If two people, as in Matt’s hypo, are together forming a business, their joint property rights in that business suggest to us that allowing some form of a covenant not to compete will be justified. There will still be a cost to positive externalities but the difference between the two forms of relationships allow for absolute ban in one and a standard of reasonableness for the other. And yes, as Brett alludes to, the world is not black and white and we will have to tread carefully in our distinctions between employees and partners.

I completely agree with Matt and Frank that there are fundamental injustices created by our entire regime of work law. Talent Wants to Be Free takes those deep structures into account in developing the more immediate and positive vision for better innovation regimes and richer talent pools. Matt writes that a more radical alternative lies within Talent but “deserves more exegesis: namely, whether we should eliminate the concept of employment entirely.” What if people will always be independent contractors?, he asks. The reforms promoted in Talent Wants to Be Free, allowing more employees more control over their human capital, indeed bring these two categories – employees and independent contractors – closer together in some respects. But far more would be needed to shift our work relations to be more “democratic and egalitarian: a post-industrial Jeffersonian economy.” As both Frank and Matt show, in their own scholarship and in their provocative comments here, this will require us to rethink so much of the world we live in.

Frank Pasquale’s review is so rich that I hope he extends and publishes it as a full article. Frank says that “for every normative term that animates [Orly’s] analysis (labor mobility, freedom of contract, innovation, creative or constructive destruction) there is a shadow term (precarity, exploitation, disruption, waste) that goes unexplored.” I would agree that the background rules that define our labor market, at will employment, inequality, class and power relations, are not themselves the target of the book. They do however deeply inform my analysis. To me, the symmetry I draw between job insecurity and the need for job opportunity is not what Frank describes as a “comforting symmetry”. It is a call for the partial correction of an outrageous asymmetry. And yes, as I mentioned at the very beginning of the symposium, I hoped in writing the book to shift some of the debates about human capital from the stagnating repetition of arguments framed as business-labor which I view not only as paralyzing and strategically unwise but also as simply incorrect and distorting. There is so much more room for win-win than both businesses and labor seem to believe. On that level, I think Frank and I actually disagree about what we would define as abuse. I do in fact believe that many of us can passionately decide to give monetary gains in return for a job that provides intangible benefits of doing something we love to do. Is that always buying into the corporate fantasy? Is that always exploitation? Don’t all of us do that when we become scholars? Still, of course I agree with many of the concrete examples that Frank raises as exploitation and precarious work – he points to domestic workers, which is a subject I have written about in a few articles (which I just realized I should probably put on ssrn – Family Geographies: Global Care Chains, Transnational Parenthood, and New Legal Challenges in an Era of Labor Globalization, 5 CURRENT LEGAL ISSUES 383 (2002) and  Class and Care, 24 HARVARD WOMENS LAW JOURNAL 89 (2001)]. Frank describes a range of discontent in such celebrated workplaces as Silicon Valley giants, which I too am concerned with and have thought about how new hyped up forms of employment can become highly coercive. Freeing up more of our human capital is huge, but yes, I agree, it doesn’t solve all the problems of our world and by no means should my arguments about the California advantage in the region’s approach to human capital and knowledge flow be read as picturing everything and anything Californian as part of a romantic ideal.



Recommended Reading: Garrett and Kovarsky’s New Casebook on Federal Habeas Corpus

A new casebook co-authored by University of Virginia law professor Brandon Garrett and my brilliant colleague Lee Kovarsky is the first to comprehensively cover habeas corpus, particularly exploring the topics of post-conviction review, executive and national security detention litigation, and the detention of immigrants. The book, just published by Foundation Press, is titled “Federal Habeas Corpus: Executive Detention and Post-conviction Litigation.” 

The privilege of habeas corpus — which ensures that a prisoner can challenge an unlawful detention, such as for a lack of sufficient cause or evidence — has grown increasingly complex and important. Just this week, the Supreme Court decided important habeas cases recognizing an innocence-exception to habeas time-limits, and making it easier for state inmates to use habeas corpus to challenge the ineffectiveness of their trial lawyer. See Garrett and Kovarsky on ‘Two Gateways to Habeas’)

Here is an excerpt of an interview of Professor Garrett and Professor Kovarsky posted on the UVA website:

“In writing this casebook, our goal was to create the subject,” Garrett said. “There is something deep connecting different parts of habeas corpus that are often taught in far-flung parts of courses or are not taught at all. Habeas corpus is now an extremely valuable and exciting course to teach, and we thought the subject demanded a rich set of teaching materials.”

Garrett, who has taught habeas corpus at UVA Law for eight years, co-wrote the book with Kovarsky, a 2004 Virginia Law graduate and a leading habeas and capital litigator who joined the University of Maryland’s Francis King Carey School of Law as an assistant professor in 2011.

“A few years ago, I started talking to Lee about habeas corpus,” Garrett said. “Lee writes insightful scholarship about habeas corpus, and is also a longtime habeas practitioner; he still works on high-profile death penalty cases in Texas. I sent him my course materials because he was starting teaching as a law professor at Maryland. And he immediately said that this should be a casebook.”

Kovarsky said he and Garrett decided to work together on the project to identify — and establish — a habeas canon that was “divorced from any immediate political, ideological or institutional objective.”

 “The decisional law and academic literature is polluted with too much erroneously accepted wisdom about the [writ of habeas corpus’] essence and, by implication, its limits,” he said. “That accepted wisdom, in turn, fuels legally substantial narratives that are, in many ways, best explored, challenged and modified in a classroom.”

Traditionally, Garrett said, law schools have taught habeas corpus as a short segment in federal courts or criminal adjudication courses rather than as a full class. Yet these brief segments, he said, are no longer sufficient.

The law of habeas corpus became significantly more complicated after Congress passed the Antiterrorism and Effective Death Penalty Act in 1996, which was passed in the wake of the Oklahoma City bombing and the first World Trade Center bombing. Read More


Bright Ideas: Mark Weiner on his new book Rule of the Clan

Sometimes fortune smiles upon you. I met Mark Weiner when we started law school. My life and my work is much better for it. Mark is a scholar and more. He obtained his B.A. in American Studies from Stanford, his J.D. from Yale, and his PhD in American Studies from Yale.

His most recent project is his excellent book, The Rule of the Clan. Ambassadors, professors from all around the world, members of the 9/11 commission, and publishers have embraced the book. Mark argues, and I think rather well, that the state has a quite important role to play, and we ignore that to our peril. Publishers Weekly has said:

A nuanced view of clan-based societies … Weiner’s argument is a full-throated defense of the modern centralized state, which he sees as necessary to protect human rights: “In the face of well-intended but misguided criticism that the state is inimical to freedom, we must choose whether to maintain the state as our most basic political institution or to let it degrade.” An entertaining mix of anecdote and ethnography.

The New York Journal of Books has called the book “accessible, mesmerizing, and compelling.”

I wanted to get into how Mark came up with the project, why it matters, and, for the writers out there, the process of writing about such a complex subject but in a way that is accessible to a general audience. So I asked Mark whether we could do a Bright Ideas interview. He graciously agreed.

Mark, the book is great. I want to jump in and ask, What do you mean by “clan”?

Thanks, Deven. In my book, I consider clans both in their traditional form, as a subset of tribes, but also as a synecdoche for a pattern by which humans structure their social and legal lives: “the rule of the clan.” Clans are a natural form of social and legal organization. They certainly are more explicable in human terms than the modern liberal state and the liberal rule of law. Because of the natural fact of blood relationships, people tend to organize their communities on the basis of extended kinship in the absence of strong alternatives.

So why clans now?

Two reasons. First, the United States is involved militarily in parts of the world in which traditional tribal and clan relationships are critical, and if we don’t understand how those relationships work, including in legal terms, we have a major problem.

Let me give you an example from Guantanamo. In the book, I tell a story of a college friend who was in charge of the team there interrogating detainees from Saudi Arabia. (I should note that my friend finds torture morally repugnant and against the national interest, as do I, and that she has advocated for this view in meaningful ways.) Over the course of her work, my friend realized that because of the first-name/last-name structure of the detainee tracking system, basic information about detainee tribal affiliations hadn’t been gathered or had been lost. This meant, among other things, that we couldn’t fully appreciate the reason why some of these men had taken up arms against us in the first place—for instance, because the United States had become embroiled in their centuries-long, domestic tribal war with the House of Saud.

Our ignorance about these issues is what I call the contemporary “Fulda Gap.” Our lack of knowledge about more traditional societies hinders our ability to understand the motivations of those who oppose us and leaves us vulnerable—and, even more important, it diminishes our ability to cooperate with our friends and to assist liberal legal reformers abroad in ways that are both effective and ethical.

The second reason to study clans, and ultimately for me even more important than the first reason, has to do with our own political discourse here at home. You could say that I became interested in clans because of widespread ideological attacks against the state within liberal societies—that is, attacks on government. By this I mean not simply efforts to reduce the size of government or to make it more efficient. Instead, I mean broadside criticisms of the state itself, or efforts to starve government and render it anemic.

I think you are saying there is something about clans that helps us organize and understand our world. What is it?

It’s often said that individual freedom exists most powerfully in the absence of government. But I believe that studying the rule of the clan shows us that the reverse is true. Liberal personal freedom is inconceivable without the existence of a robust state dedicated to vindicating the public interest. That’s because the liberal state, at least in theory, treats persons as individuals rather than as members of ineluctable status or clan groups. So studying clans can help us imagine what our social and legal life would become if we allow the state to deteriorate through a lack of political will.

By the way, the idea that the state is somehow inimical to freedom—that we gain individual freedom outside the state, rather than through it—is hardly limited to the United States. It was a core component of Qaddafi’s revolutionary vision of Libya. Or consider Gandhi, who advocated for a largely stateless society for postcolonial India. Fortunately for India, his vision wasn’t realized. Instead, we owe the prospects for further liberal development there to the constitution drafted by B. R. Ambedkar.

Hold on. From Indian independence to Libyan revolution seems a long jump. Can you help me connect the dots?

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