Category: Law School

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The Meaning of Patriotism

Last fall, I began reading Hillbilly Elegy. I wanted to see how the author, J.D. Vance, would deal with the question of class. I was particularly interested to see if his experiences at Yale Law School were anything like mine. They were in one respect – we were both introduced to sparkling water at large law firms and couldn’t understand why anyone would drink the stuff.
I finished reading the book after the election. Vance’s memoir is more an effort to deal with his dysfunctional upbringing than an explanation of the white working class’s electoral preferences. There are no more than a half dozen political comments in the volume. Before the election, I quickly glossed over them. After the election, the asides, however brief, rankled. The one to which I kept returning was his declaration that his people were “patriotic.” Yet, he gave the idea of patriotism no content. It made me reflect on my own upbringing.
My working class family certainly thought of itself as patriotic. My father had fought in World War II and he identified strongly with that service. When we moved out to the suburbs, he bought a flagpole and mounted it in the center of our front yard, flying the flag every day the weather permitted.
Beyond the flag, however, my parents’ patriotism had content that they frequently repeated. Most of the litany was “this is a great country because” and the most important because was that the country embraced us. All four of my grandparents had come from Italy around the turn of the twentieth century. My parents kept telling us as children that we would be “American.” For my brother and me, with our blue eyes, blond hair, and inability to speak any language other than English, this was a source of amusement. But we also understood that our parents meant that we were to embrace American values.
The first of those values was the importance of education. Two of my four grandparents had been illiterate. My parents had been the first in their families to complete high school and they felt deprived of the opportunity to go further. They spent our childhood telling us that education was the American secret to success and that we must be prepared to seize the opportunities America offered.
In Catholic school, the nuns also taught us about what it meant to be American. They prepared us to do battle with our perceived enemies – the Protestants, who we were told would challenge our faith. But we were also taught that we could be loyal Americans and good Catholics because of the separation of church and state. The need to separate private devotion from public leadership was central to our understanding of citizenship. We saw tolerance as the great American virtue, and learned that it was something we owed others if we were to demand it for ourselves.
Next in my parents’ litany of “this is a great country” was their belief that the United States was strong and prosperous because, unlike Italy, it got things done. As a child, I read Mark Twain’s, A Connecticut Yankee in King Arthur’s Court, which captured the idea of the United States as a nation of tinkerers open to innovation. My father, who was a carpenter, liked the idea. He was proud that he had voted for every winning presidential candidate from Franklin Roosevelt to Jimmy Carter – irrespective of party. His winning streak ended with Ronald Reagan. He didn’t vote for Reagan for the same reason he didn’t vote for George McGovern: he saw both as radicals who put commitment to ideology over pragmatism, that is, ahead of doing what the nation needed at the time.
These notions of patriotism informed my family’s definition of effective leadership. My first cousin became the Republican Majority Leader of the New York State Senate when Mario Cuomo was the Democratic governor. He liked to say that he respected Cuomo and Cuomo respected him. The two of them had come from similar backgrounds and while they often differed politically, respect meant thinking of each other as intelligent, competent and willing, when the necessary time came, to cut the deals necessary to get the state’s business done.
These clear distinctions between public leadership and private commitments informed my own sense of professionalism. I remember my surprise in the eighties when I sat down with a new faculty member. She began the conversation by announcing, “I am a feminist.” I thought to myself: “If you were to look at the sum total of my beliefs, you could say I am a feminist, too. But what does it mean to tell somewhat that in your first extended discussion? Does it mean that you have made up your mind before you hear the facts? That you put loyalty to the cause ahead of loyalty to the institution that just hired you?”
My cousin the majority leader, who was substantially older than I, died a while ago. In 2005, I stopped by to see his widow who was dying of cancer. When I walked in the door, in the only political conversation we ever had, the first thing she said to me was, “Does anyone still support George W. Bush? We had his number in 2000. We can’t believe anyone still supports him.” My cousins, lifelong Republicans, felt betrayed by the direction their party had taken.
Is there anything left of the notions of patriotism that my working class family once held dear? It’s hard to find them in today’s politics. But the academy is changing. When I moved from California to the Midwest ten years ago, I was pleased to find a less ideologically divided faculty despite a range of political views. My new colleagues told me that the faculty had been more factionalized a few years earlier. But the most polarizing of the professors had left, and those who remained were determined not to rekindle the conflicts. They had recreated a leadership ideal that made commitment to the whole more important that uncompromising purity or partisan loyalties. Let us hope that there is a way to do so for the country as a whole.

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The “Shock and Awe” Response to Hillbilly Elegy: Pondering the Role of Race

In my prior posts about Hillbilly Elegy (here and here), I’ve noted some reasons for my struggle to understand the overwhelmingly positive response to J.D. Vance’s 2016 memoir.  Actually, positive is too general a descriptor.  There is often what I call a “shock and awe” character to the response, a “there are actually people like Vance and his family out there in America” response.  Who knew?  And who knew male seahorses gestate the offspring?  Who knew the Okavango River flows inland?  Who knew the Dutch are the tallest people in the world, excepting some small African tribes?  But I digress …

It’s not clear if this initial incredulity regards (1) the white socioeconomic disadvantage and dysfunction from whence Vance comes or (2) his meteoric rise from Appalachia to Yale Law School and on to Peter Thiel’s Mithril Capital.  I’ve already opined on why we should not be surprised by the former, so in this post I’ll say more about the latter.

First, however, to illustrate just how over the top the media response to Hillbilly Elegy has been, let me quote a few reviews.  Bloomberg identified the book as “the most popular choice for best book of 2016.”  Ok, well, popularity doesn’t necessarily equate to quality, but the venerable New York Times, my own media polestar, called the book a “a compassionate, discerning sociological analysis of the white underclass.”  I’ve already explained why I don’t see it as discerning.  As for compassionate?  Maybe in the vein of Bush’s “compassionate conservatism,” but that doesn’t seem to be a thing any more–if ever it was.  I assume that The Economist reviewer would agree with me on the (lack of) compassion point because he concludes that Vance is a “conservative in the oldest and best sense.”  It’s perhaps not surprising, then, that this reviewer opines that “you will not read a more important book this year.”  In short, the reviewer falls hook, line and sinker for Vance’s tough love, personal responsibility prescription, calling it a “bracing tonic.”

One reason I am surprised by the glowing reviews (especially among left-leaning outlets) and the “millions sold” is that I would not have expected 21C Americans–particularly among the chattering classes (and I know a shocking number of law professors who have read this book)–to be so interested in a story of white class migration.  I thought Horatio Alger characters were a creature of history, that American dream, up-by-your-bootstraps narratives were yesterday’s news.  Didn’t our attraction to such delusional thinking fade once we discovered/identified/named white privilege?

In the world in which I live and work, white privilege is often referenced as if a magic bullet, a miraculous cure-all that permits people with white skin to achieve any and all that their hearts desire.  I often hear phrases like “white people’s problems” and “you’re white, you’ll be alright” tossed about casually.  At a minimum, whiteness greases the proverbial skids on the road to success, though we often treat it as much more potent than that.

Broadly speaking, the academy is highly attuned to structural racism and bias based on race/ethnicity–and appropriately so, in my opinion.  Peggy McIntosh tells us that the invisible knapsack of white privilege means that whites “can be pretty sure of renting or purchasing housing in an area which [they] can afford and in which [they] would want to live.”  (“[W]hich they can afford” is a rather important qualifier, no?)  Bernie Sanders told us during the 2016 primary:

When you’re white, you don’t know what it’s like to be living in a ghetto.  You don’t know what it’s like to be poor.

But this isn’t accurate, and surely–somewhere in the deep recesses of our memories and minds–we are aware of this inaccuracy, this failure to see or acknowledge white poverty.  Yet it seems to have taken Hillbilly Elegy‘s publication to surface that reality, however opaquely.  Still, how many of you have made the connection between what (I hope) you know about the existence of white poverty and the economic landscape depicted in this bestseller?

A majority of those experiencing poverty self-identify as white.  Yet like the academy, the media very often conflate our racism problem with our poverty/inequality problem.  See here and here.  The suggestion is often that black people are poor because they’re black, and of course there’s truth to that.  Trina Jones expresses the phenomenon eloquently:

Somehow . . . race and class become mutually reinforcing. Blacks are poor because they are Black and Blackness gets constructed as poor. That is, poverty becomes a constitutive element of Blackness. Blacks are not only lazy [and] intellectually and morally inferior, they are also poor.

So if we have conflated blackness with dependency, have we conflated whiteness with affluence, well-being, and independence/agency?  Arguably, yes.  And if we have done that, where does that leave low-income, low-education whites?  (This is a H/YUUUGE topic, of which I barely scratch the surface in this post).  If they slump or find themselves downwardly mobile or otherwise fail, we look away, ignoring or “forgetting” them (consider the headlines here and here).  If, like Vance, they ultimately succeed–if they become like “us”–we often discount that success by attributing it to their white privilege.

Given that tendency, isn’t it interesting that we’re so captivated by Vance’s story?  (Further illustrating that intrigue, did you know the movie rights to Hillbilly Elegy have been purchased and Ron Howard will be involved in making the film.  I can’t help wonder/worry what combination of “Beverly Hillbillies,” “Dukes of Hazard,” “Honey Boo Boo” “Duck Dynasty” “Deliverance” and ???? will get depicted.  Plus, who’s going to play J.D.?  Sorry, digressing again).

Furthermore, would we feel the same about Hillbilly Elegy if Vance were our colleague?  (Btw, even friends and acquaintances who liked the book are telling me they are tired of seeing and hearing Vance on CNN; guessing it’s a good thing I don’t watch TV.)  What would it be like to have Vance on your law faculty?  Would that just be too awkward given how different he is from “us”?  What if he showed up, fresh out of Ohio State, as our law student?  (that’s a topic for a future post).  Maybe we relish Vance’s story, his success as a token and at a distance, but we can probably imagine what it would feel like to have him around in the flesh, too close for comfort.  We know he wouldn’t really fit in.  And maybe part of the reason legal academics (of all people) and other elites seem to savor the story is that Yale Law School is the ultimate icing on the educational cake.  Maybe we are attached to that “up by the bootstraps” narrative after all.  Maybe Vance affirms our desire to be engaged in–and to be the products of–a meritocratic enterprise.

And that brings me to another “race” question:  Would the Black/African American equivalent of Hillbilly Elegy have spent so many weeks on the New York Times bestseller list?   Or could/would such a hypothetical book–in an era when the Obamas’ autobiographies have been valued much more highly than prior U.S. presidents–leave Hillbilly Elegy in the dust?  Maybe so.  In fact, we may already have our answer to that question in Dreams from my Father:  A Story of Race and Inheritance.   

Oh, and for the record, I love that book.  Really love it, as reflected in some of my ponderings about it in 2009.  Barack Obama is not only a much finer writer than Vance, I found his reflections more thoughtful, mature, nuanced (and maybe he had a better editor because I don’t recall him going on and on and on).  But I admit that familiarity breeds contempt, and Obama told me a story and introduced me to a world I didn’t already know.  Sadly, I can’t say the same about Vance.

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Hillbilly Elegy as Rorschach Test

I have already made clear in a prior post some of the reasons I am not a big fan of Hillbilly Elegy: A Memoir of a Family and Culture in Crisis, J.D. Vance’s best selling 2016 memoir:  I think Vance is using his personal narrative to advance a neo-con agenda (and I will freely admit I don’t trust anyone who would work with Peter Thiel).  Further, I don’t think the book lives up the hype.

But lots of folks I know and respect do like the book, and they have been willing to defend it.  Following are my recollections of some of the conversations I have had about Hillbilly Elegy, most of them initiated by my friends and acquaintances rather than by me–for whatever that’s worth.  In any event, recalling these has me pondering the book as “Rorschach test,” that in which we can see what we choose to see.

Family, Luck and the Luck of Family.  When I opine that I see Vance takes too much credit for his success (which is not to say he deserves no credit) and focuses too much on the staple of conservative politics, “personal responsibility,” several friends have disagreed.  One said “No, he doesn’t take credit.  He says he got lucky by virtue of his stalwart grandparents who loved him” and kept him between the ditches (the latter part being my hillbilly paraphrase of what my friend actually said, which I don’t recall verbatim).  Ok.  Fair enough.  Yes, he appropriately gives his grandparents lots of well-deserved credit, and I relate to that.  I would never have made it to college or beyond without my mom and other key folks in my community who encouraged me and expected great things.  But family and friends as cheerleaders will not, alone, get you through college or graduate school–especially when they have never been there themselves and can rarely help you set appropriate goals.

It’s Really Complicated.  When I told another friend that I think Vance takes too much credit for his success, she (a Harvard educated lawyer) said, “Oh no. What he is saying is that it’s all very complicated.”  Well, I can hardly argue with that.  Of course it’s complicated!  But this is sorta’ like Donal Trump saying health care reform is complicated or the North Korea situation is complicated.  Are you kidding me?  The fact that the world didn’t know it was “complicated” before J.D. Vance published Hillbilly Elegy is, frankly, embarrassing.  (In this vein, read Alec MacGillis’s excellent piece in The Atlantic).  People living below, at, or hovering above the poverty line have very difficult lives–even if they are white (and I hope to return to the matter of whiteness in a dedicated way in a subsequent post).  Reports of what are now being called “Deaths of Despair” among low-education whites came out as early as 2013, such as here; among these is Case and Deaton’s high profile study in the fall of 2015.  We should know that these folks exist and that when they are able to escape the bonds of the low-income, low-education world, it pretty much requires a harmonic convergence–a small, multi-faceted miracle–every time.  It takes some combination of family support, mentoring, lucky breaks (which can include stable grandparents, like J.D.’s), sheer native ability, perseverance, grit and–yes–hard work.

Oh, I would argue that it takes “the state”!  Vance talks only vaguely of Pell Grants, government-backed student loans, or work study–or any other way that his family received any benefit from government policies, be they the EITC or food stamps or  … How about his public university degree from Ohio State?  the GI Bill?  In the last chapter, which is his policy recommendations chapter, he does refer opaquely to his grandparents’ Social Security, so there’s that.  Maybe I overlooked the structural stuff.  But for the most part, as Sarah Jones highlighted in her New Republic review, Vance writes as if the state is not an actor, either by omission or commission.  Really?  Can it be that the state was irrelevant to Vance’s class migration?  that all the state did for him is permit him to become a Marine and thereby bootcamp some discipline into him?  Is this absence of government what so many across the political spectrum find so appealing about Hillbilly Elegy?  Further, is it possible that the state can or should play little or no role in the plight of those left behind?

Memoir vs. Policy Manual.  When I told another acquaintance–a childhood  immigrant from Poland, a relatively recent University of Michigan law graduate–that I found Vance’s dalliance in policy matters annoying and regressive, she said she hadn’t really noticed, had skimmed over those parts.   She then allowed that the book probably worked better as a memoir than as a policy document.  I agreed.  But I was also somewhat puzzled that this white class migrant (her father was a truck driver, just like mine, and she, like Vance, had served in the military) had  been so taken with Vance’s narrative, his version of events.  Her own journey didn’t sound terribly different to his (though I assume the absence of extreme parental dysfunction and addiction)   That journey had, however, taken place in a major American city rather than a corner of Appalachia, which may have sufficiently differentiated it from her own to make Hillbilly Elegy interesting in her eyes.

Window into Another World.  A well educated, thoughtful and sage (yoga instructor, no less!) friend from an “old money” family back East asked me what I thought about Hillbilly Elegy.  Her book group was about to discuss it, and she said she felt the book was providing her insights into the value of relationships and people whom she would previously have dismissed as uncouth at best.  Specifically, she said that if she had met Vance’s cursing, gun-toting grandmother, she would have been entirely  disdainful–until she read the book, that is.  Hillbilly Elegy had helped her to see the value in Vance’s Mamaw.  I said, “fair enough, but read what I have written about the book,” and I passed along a partially written review.  It is self-serving to report, but my friend came back with, “yes, I can see your reflections on your upbringing are more mature and thoughtful than Vance’s. Nevertheless, I did benefit from Hillbilly Elegy as a window into another world.”  And this brings to the last of the exchanges that I will share …

Is Vance Seasoned Enough to be Publishing a “Memoir”?  As I have previously mentioned, not many written reviews of Hillbilly Elegy have been anything other than glowing.  In addition to the Sarah Jones review I have already cited and quoted, I have read very little negative commentary about the book.  Some of the few “bad” reviews I have seen were in the Daily Yonder, an online publication/blog of the Center for Rural Affairs (I know you are chuckling, but this is a serious outlet for rural perspectives and rural news).  They published three reviews, none of which was very flattering, and  two of which called out the inappropriateness (and perhaps even absurdity) of someone publishing a “memoir” at the age of 31.  One, Jim Branscome, a former managing director of Standard & Poor’s and a former staff member of the Appalachian Regional Commission, quotes Vance’s own book introduction.

I find the existence of the book you hold in your hands somewhat absurd.

Branscome then summarily agrees with the statement.  In another review, Charles L. Baker, a native of Eastern Kentucky and retired CEO of Presbyterian Child Welfare Agency, expands on that notion:

J.D. Vance lacks the maturity to see the blind spots that trouble his book… The culture he blames for spreading failure gave him some of the values that helped him succeed.  And the government he says institutionalized poverty in Appalachia helped him find a way into the middle class.

Baker’s review–like that of Sarah Jones–reminds us that Hillbilly Elegy is not just the story of Vance’s escape from Appalachia, it is the story of the multitudes left behind.  (This, of course, is why CNN regularly brings Vance on to educate the viewing public about the supposedly quintessential Trump voters).  The book’s importance is as much or more in what it says about the failures of Vance’s people as it is about Vance’s “phoenix from the ashes” success.  Don’t doubt, though, that both aspects of the book have made it especially popular among conservatives and libertarians.  Vance gets to be the poster child for Reagan’s vision of the potency of personal responsibility.  Yet many of us who have trod that path are less likely to “lean into our own understanding,” much less take so much credit for our own success without also acknowledging the many structural handicaps that hold back our communities and families of origin.

As for Vance’s maturity, I acknowledge that a childhood and youth like J.D. Vance’s will prematurely age a person.  It’s an exhausting way to live, and that which doesn’t kill you will not only make you stronger, it will often result in what I shall call premature maturity.  Nevertheless, Vance, a few years out of Yale Law, is surely nowhere close to maxing out on wisdom.  I wonder how the decades to come might lead him to reflect differently not only on his own journey, but also on what his people need, on the array of factors that are holding them back, keeping them down. (You may have heard that, in recent months, Vance has moved back to Ohio where he will be using some of the fruits of his labor to start a foundation; I anticipate a run for public office in his near future.)

I am thinking it is no coincidence that the few naysayers about Hillbilly Elegy that I have managed to identify are mostly from the region, and some of us are class migrants.  (Other important reviews of Hillbilly Elegy from those in the region are here and here; Jedediah Purdy, who grew up in Appalachia and teaches at Duke Law reviews the book here, though he is more descriptive than critical). We see a greater role for the state in places like Appalachia and the Ozarks and, like Vance, we have first-hand knowledge of the milieu.  We see the structural barriers to not only getting to Yale Law School (and few from any place or milieu even aspire to that), but the ones that keep kids from getting through high school or enrolled in community college or securing a decent blue-collar living.

In the 2016 election cycle, Democrats seem to have neglected these people and what government can (and should?) do for them.  Indeed, Hillary Clinton hardly showed up in rural America.  If liberals think Hillbilly Elegy represents some “gospel truth” about low-income, low-education whites, they may well continue down the current path of self-destruction, failing to prioritize races in rural places with large white working class populations (read more here and here).

In closing this post, let me return to Sarah Jones of the New Republic, because I can’t sum up my feelings about the election of 2016 and what working class whites need and deserve any better than she did (emphasis added):

By electing Trump, my community has condemned itself to further suffering. … Our schools will get poorer and our children hungrier. It will be one catastrophic tragedy out of the many a Trump presidency will generate. So yes, be angry with the white working class’s political choices. I certainly am; home will never feel like home again.

But don’t emulate Vance in your rage. Give the white working class the progressive populism it needs to survive, and invest in the areas the Democratic Party has neglected. Remember that bootstraps are for people with boots. And elegies are no use to the living.

I’ll be returning soon with more thoughts on other important issues that Hillbilly Elegy brings to the fore.

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From Prisoner to Professor: Shon Hopwood Joins Georgetown Law Faculty

I’m probably the only law professor in the country who has seen prison from the inside.

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When something positive happens in my life and people are quick to give me praise, I always remember the people that showed me kindness and the work they did to get me to this point. And I try to pass that kindness onto others.

Shon Hopwood 

If you have yet to hear the news, it’s now official: Shon Hopwood has accepted a position as an associate professor at Georgetown University Law School. Your can read about it in a news story by Katherine Long published recently in the Seattle Times. Here is the title of that story:

Former bank robber helped by Gates fund now professor at Georgetown Law School

It is a remarkable story of how a man turned his life around — a metaphorical turn-around jump shot to score big in the game of life (see video interview with Shon Hopwood, Bank Robber Finds Safer Way to Challenge the Legal System, CBN, 2013).

The Hopwoods (circa 2013. credit: Lincoln Journal Star)

That story is vividly recounted in Hopwood’s Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption. Some of those who made this dream-come-true are:

  • Robert & Rebecca Hopwood (Shon’s parents who “never gave up on me”)
  • Ann Marie Hopwood (a remarkable woman who graced Shon with unselfish and unending support . .  . and then married him) (Shon on Ann Marie : “She gave me a second chance when few others would, and she saw something in me that nobody else did.”)
  • Seth Waxman (the former United States solicitor general who worked with Shon to win a Supreme Court case — Fellers v. United States (cert. petition prepared by Shon Hopwood here) (Seth Waxman: “It was probably one of the best cert. petitions I have ever read. It was just terrific.”)
  • Andy Cockle & Trish Billotte (the folks at the Cockle Law Brief Printing Co. who hired Shon after his release from prison)
  • Adam Liptak (the reporter who brought Shon’s story to national attention)
  • Eric Schnapper (the University of Washington Law professor who urged Shon to apply to law school) (Shon: “I decided to apply to the University of Washington School of Law after Professor Eric Schnapper called me.”)
  • Kellye Testy (the University of Washington Law School dean who worked to get Shon into law school, replete with a scholarship from the Gates Public Service Law Program)
  • and Circuit Judge Janice Rogers Brown (who believed in redemption — and excellence — enough to hire Shon as one of her law clerks) (Shon: “She never once treated me any differently from anyone else. If it’s not completely obvious, I adore her. I miss working for her.”)

To be sure, there are others, including some very special people at Georgetown who astutely realized Shon’s enormous potential, enough so as to invest in him even when lesser schools declined to interview him.

Shon is a terrific addition to the Georgetown faculty. He’s a great teacher, a top flight appellate advocate, a valued colleague, and a promising scholar. We’re delighted he’s joined our faculty.

                                                                                                                                             — David Vladeck 

I confess: I’m biased — Shon was one of my former students at U.W.

Bottom line: Keep your eyes on this guy and don’t be surprised if he moves a few more mountains . . . and with Ann Marie by his side!

Related

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(credit: Seattle Times)

Scholarship and Mid-Career Self-Assessments: A Brief Reflection on Simkovic’s What Can We Learn from Credit Markets?

Chris J. Walker has written a very helpful series of posts for young professors on “how to become a voice in one’s field.” The last addressed one of the hardest issues: “Am I Asking the Right Questions?” Academic freedom at a professional school comes with serious responsibilities: to choose field(s), to apply methodology well, and to try to establish the importance of one’s findings among one’s peers and (increasingly) among educated publics, as an engaged academic. Both Walker and Michael Rich offer wise perspectives on the dilemmas that inevitably come up during thoughtful reflection on these responsibilities, focusing on a process of discernment.

I also think that we can learn a great deal from the content of successful scholars’ inquiry. Usually, researchers only undertake this type of self-reflection when applying for jobs and preparing research agendas (a mostly private process), or at the end of a career (when a long list of accomplishments may seem too daunting to be relatable to younger peers). But winners of the ALI Young Scholars Medal appear to get invited to give a public talk on their work at an earlier stage of inquiry. Mike Simkovic (whose work I’ve previously praised here) gave such an address in May.

The talk is focused on the questions that led Simkovic to research credit markets. His work helped explain some puzzling aspects of personal finance–for example, why harsh restrictions on bankruptcy imposed in the mid-2000s did not lead to a cheapening of credit. His findings are revealing: consolidation in the credit card industry, as well as confusing contractual terms, helped dominant firms keep the resulting profits, rather than compete them away. As of 2016, even The Economist has caught up to this challenge to laissez-faire orthodoxy–but at the time it was made, complacent assumptions about market efficiency were dominant.

From that inquiry, Simkovic describes a chain of puzzles that led him to challenge widely held preconceptions in corporate, education finance, and tax law. It’s an engaging documentation of a particularly fruitful and insightful trajectory in inquiry.

I recently proposed a paper to the MLA’s annual conference entitled “Beyond the False Certainties of Impact Factors, Altmetrics, and Download Counts: Qualitative & Narrative Accounts of Scholarship.” It arose out of my dissatisfaction with the metricization of accomplishment. As citation counts proliferate, accumulating the ersatz currency of reputational quantifications threatens to overwhelm the real purpose of research–just as financialization has all too often undermined the productive functions of the economy.

Traditional modes of assessment (including tenure letters and festschrift tributes) are an alternative form of evaluation. And an essay like Simkovic’s is an example of a type of self-evaluation that should become more popular among scholars at certain career milestones (like tenure, appointment to full professor or senior lecturer, and, say, every 5 or 10 years thenceforward.) We need better, more narrative, mid-career assessments of the depth and breadth of scholarly contributions. Such qualitative modes of evaluation can complement the quantification-driven metrics now ascendant in the academy.

The State of Legal Scholarship: A View from Health Law

Based on Ron Collins’ post below, I read the interview with Judge Edwards. The judge states:

In order for legal scholarship to be relevant outside the legal academy, law professors should balance abstract scholarship with scholarly works that are of interest and use to lawyers, legislators, judges, and regulators who serve society through legal arguments, decision-making, regulatory initiatives, and enforcement actions.

Fortunately, every legal academic that Nicolas Terry and I have hosted in our 41 episodes of The Week in Health Law has done so. Perhaps that’s a biased sample. But it’s undoubtedly better than the sampling practiced by Justice Breyer, another critic of legal scholarship.

For now, I will take some comfort that, about a year into our podcasting, we have heard from general counsels, attorneys, regulators, and journalists who are big fans of the show–which primarily focuses on the work of legal academics. And I will remain dubious of generalized critiques of legal scholarship, which fail to analyze the merits of particular fields.

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What’s a Trigger Warning?

The public, media, and academic panic over trigger warnings has struck me as a bizarre overreaction. Fueling the growing crisis mentality, Vox published an essay titled “I’m a liberal professor, and my liberal students terrify me” that went viral. Directly relevant to law school professors, Jeannie Suk wrote in The New Yorker that she has had growing concerns about teaching about rape in the emerging trigger-warning culture. I was one of those who expressed doubt about Suk’s position, but also wondered how much difference in our perspectives could be explained by our natural tendency to generalize from our own limited anecdotal experiences.

Thankfully, a lot of research is being done to understand whether the panic over trigger warnings is warranted. The National Coalition against Censorship (NCAC) issued a published report concerning its findings. There are a lot of interesting tidbits including that a lot of requests for warnings come because of religious or moral sensitivities (and not so-called left-wing “political correctness). Overall, the report seems to indicate that the panic is overblown.

Yet, the most shocking finding for me personally was to discover that I was a trigger warning issuer according to the report. This was the definition of a trigger warning used by the NCAC:

… written warnings to alert students in advance that material assigned in a course might be upsetting or offensive. Originally intended to warn students about graphic descriptions of sexual assault that it was thought might trigger post-traumatic stress disorder (PTSD) in some students, more recently trigger warnings have come to encompass materials touching on a wide range of potentially sensitive subjects, including race, sexual orientation, disability, colonialism, torture, and other topics. In many cases, the request for trigger warnings comes from students themselves.

Although I have long given oral statements when covering certain material in Criminal Law (primarily in child murder and rape cases), I started sending out a pre-semester email to students signed up for my Sex Crimes seminar as follows:

My Sex Crimes course is filled with gruesome, horrific, and truly bizarre readings and discussions. As I have told colleagues who are curious about the subject, “once I tell you, you can’t un-know it.” Although I’m guessing that some of you feel that you have heard or can imagine nearly everything we will discuss in class, I’m pretty sure each of you will quickly hear or read something that will upset and/or shock you. I think there is much value in learning outside of your comfort zone, but I want you all to make an informed choice about taking my class. So, if you want to drop the class, let me know so that you don’t get any further emails. I will send out the semester’s readings and your first day assignment tomorrow.

To me, my email is a far cry from what has stoked media controversy. Often, trigger warnings are portrayed as student vetoes or opt-outs from certain assignment that are a critical component of the “death of free speech on college campuses.” And yet my email to students would be counted as a trigger warning in surveys. On the one hand calling my statement a “warning” is entirely accurate. But from my perspective it is simply designed to inform students about the course’s content and doesn’t allow for students to dictate/veto the course structure or materials taught. Given that my warning about the content is true, it seems reasonable for me to communicate that fact ahead of time.

The basic problem of definitions seems very important in deciding whether we should be worried about trigger warnings. Imagine each of these “bad” scenarios:

  1. University requires faculty to put boilerplate language in every course syllabus about objectionable material.
  2. University responds to student requests against a particular professor by suggesting to professor that some warning should be issued.
  3. University adopts a policy that requires faculty members to have an opt-out for students of any assignments that meet certain broad criteria for offensiveness.

The first scenario is hardly ideal but not an enormous threat to academic freedom either. The second could be dangerous depending upon what “suggesting” means. The third is clearly disastrous. It seems to me that these situations should be the focus of our concern. I don’t know of any cases that fit the third scenario. I’m guessing, but am open to new information, that the second scenario is a rarity and often subject to disputed accounts.

Media and researchers should not try to group my simple warning, made voluntarily out of respect for my students, with university requirements that often don’t actually exist in the real world. They are wholly unrelated. But if others disagree and are troubled by what my pre-semester email represents, I welcome comments.

The Larger Debate on Federal Credit Programs

Earlier today I criticized a New York Times proposal regarding law school loans. Whatever you think about the proper cost of legal education, the NYT is off-base, because it ignores the role of private finance in our economy.

Education finance policy is difficult because it raises fundamental issues in political economy and public finance generally. It also only makes sense with some historical context.

Back in the 1970s and ’80s, an anti-tax coalition operated on the presumption that state support for education had to drop. Financialization plugged the resulting hole in funding: responsibility for paying for school shifted from (relatively well-off) taxpayers to students. By the 1990s, private lenders realized that they could make tremendous profits from such loans–particularly if they could privatize profits, while sticking the government with losses. That arrangement became so scandalous by 2010 that it was curtailed as part of PPACA. The federal government directly offers many loans now.

But the private lenders did not simply give up. Current efforts to “reform” federal student loans are part of their much larger effort to shrink federal credit programs. The basic idea is simple: to force the US government to account for its credit programs as if it could and should charge interest rates (and impose terms) prevailing among private lenders.

It’s a strange move, especially since, as Matt Yglesias states, “costs reported in the budget are generally lower than the costs to the most efficient private financial institutions because the government’s costs of funds are in fact lower.” David Kamin has also questioned this accounting tactic. But if it succeeds, there is little rationale for any federal credit program–it will simply duplicate extant private lenders’ work. That redundancy will lead to further privatization of federal credit programs, raising costs to borrowers and diverting more money to the finance sector. It’s not a great outcome for students–but it is a logical outgrowth of reflexive hostility to the type of state intervention that actually could improve students’ finances while maintaining quality.

Dulce et Decorum Est: Critics of Student Loan Forgiveness Rally the Troops

For years, critics of loan forgiveness programs for students have argued that they are a form of “welfare,” when in fact they’re a necessary corrective to the excessively harsh bankruptcy regime imposed on student debt. But the critics are getting a hearing, and guess where the money is probably going:

[A]t some point, there is going to be a deal on appropriations and raising the debt ceiling. There is a lot of pressure to raise defense spending. Some of these student loan items [like the Public Service Loan Forgiveness Program] could wind up on the table in such a deal.

We’ve seen this pattern again and again: 1) create a scare about excessive “entitlement” spending, 2) spur either tax cuts for the rich or reallocation of “entitlement” money to the force or finance sectors, and 3) repeat once excess military spending once again drives budgetary imbalances. The PLSF is a low-cost program designed to promote provision of important services to the underserved. It’s amazing to think, of all the expenditure lines that could be attacked, this was the one chosen. But it is of a piece with larger social trends to shift money away from human services, and toward force and finance.
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The New York Times’ Curious War on Traditional Higher Education

It’s a strange position for America’s “paper of record” to take. Despite its largely traditionally-college-educated readership, the New York Times is constantly publishing articles attacking the value of university degrees. Tom Friedman dismisses them as expensive merit “badges” oft-unrelated to the exact qualifications needed for jobs. The ubiquitous Tyler Cowen blasts ed sector costs and inefficiencies, despite international acclaim for US universities. The author of The End of College has had a high-profile platform at the Times‘s Upshot blog.

All three men tend to characterize traditional college degrees as mere signals, barely (if at all) related to the actual skills, habits, and qualities of mind and character that lead to successful, fulfilling lives. I’ve never seen them grapple with the extensive empirical literature on why education increases earnings. Nor do they tend to respond much to the hard data that their colleague David Leonhardt provides on the costs and benefits of college.

Sadly, there’s just too much money in education disruption narratives for the Times‘s most prominent writers to give up on them. Critics have documented how “influence moved from the $795/$495 per person corporate-sponsored [New York Times Schools for Tomorrow] conference [with the theme Virtual U: The Coming Age of Online Education] to the pages of the newspaper of record.” As Facebook and other tech firms angle to squeeze ever more control over (and compensation from) their “content partners,” those partners in turn seek advertising from similar tech firms in other sectors. That’s one reason you’ll see, for example, long stories (aka “earned content”) about legal technology “disruptors” in legal trade publications, near paid ads for the same firms elsewhere on the magazine or website.

I’ll make one grudging concession to Cowen: he’s long argued that marketing is set to become a much larger part of our economy, and you can see its dominance congealing in the ed space now. “Disruptive innovators” push for more for-profit schools and nano-degrees–even though the former have seen so many scandals, and the latter have barely been tested. But what these newfangled entrepreneurs lack in quality, they make up for in marketing budgets. The figures exposed a few years ago were shocking:

At the end of July 2012 the Senate Committee on Health, Education, Labor and Pensions presented an 800-page report, the culmination of a two-year investigation into ‘for-profit’ higher education institutions.​ The senators found that at such institutions a mere 17.4% of annual revenue was spent on teaching, while nearly 20% was distributed as profit (the proportion spent on marketing and recruitment was even higher).

All those marketing dollars, flowing to Google or Facebook as conduit, or publications like the New York Times as content, get attention. It’s no wonder why leading technologists and journalists think it’s so important to promote the disruptors. But they may find their own brands tarnished as the harsh realities of techno-utopian ed reform gradually become more apparent.