July 9, 2006

Some hipness and squareness about John Roberts.

Hey! I spot my name in today's NYT in an article by Linda Greenhouse called "His Hipness, John G. Roberts." Let's see:
WRITING in April for a unanimous Supreme Court, Chief Justice John G. Roberts Jr. found that the police in Brigham City, Utah, acted properly in entering a home without a warrant after they peered through a window and saw a fight in progress that had left one man spitting blood.

"The role of a police officer includes preventing violence and restoring order, not simply rendering first aid to casualties," the chief justice said, rejecting the argument that the police should have waited until the altercation ended more conclusively. "An officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided," he explained.

The chief justice's sports imagery galvanized the legal blogs. Some found his boxing reference inapt. "The whole point of boxing is fighting!" wrote a participant on the Althouse blog, run by Ann Althouse, a law professor at the University of Wisconsin.

Others took issue with the hockey reference. "Given all the padding that hockey players wear, being punched by an opponent hardly is more significant than being hit by a toddler," one said.

Finally, another writer took a step back and observed that "this shows another side of Roberts as a good writer: displaying some wry humor and hipness."
There is a hot link in that passage, but it's for "University of Wisconsin" and it just goes to a page of hits for a search within the NYT site for "University of Wisconsin." How about a link to the post? Come on, Times! You've got to do internet properly. It's not Greenhouse's fault, but really, that approach to links is unbelievably obtuse.

Here's the missing link. I started off the conversation this way:
We're familiar with the way a referee in a boxing can stop a fight if it becomes too one-sided. Why throw in "(or hockey)"? It not only clutters the sentence, it makes the concept harder to grasp. I don't even know about hockey referees stopping one-sided games. Since Roberts is known for the high quality of his writing style, I've got to think that parenthetical really adds something. But what?

Is it that in hockey fights break out, and the refs don't stop them unless they're one-sided, and it's actually more like the police situation because the fighting isn't legitimate in the first place, but some people might think the police should ignore fights unless someone is outmatched? In that case, hockey is a more apt analogy in light of the argument that the search was unreasonable.
The quote "The whole point of boxing is fighting!" is not mine. It's by what Greenhouse called "a participant on the Althouse blog, run by Ann Althouse." In other words, a commenter. Actually, it's Joan H. -- here's her blog .

She wrote:
Fighting is tolerated in the NHL, and referees often let the players involved work out their frustrations as long as neither party is getting beaten to a pulp and the other team members are staying out of the fray. Most fights are just scuffles, and are to be expected in a game in which shoving your opponents out of the way is legitimate.

I think the hockey analogy is better just for that reason, and can't understand why boxing was included at all. The whole point of boxing is the fighting! In hockey, fighting is always penalized, whether or not the refs break it up, just as it should be in life. I think Roberts included the boxing reference because frankly there aren't so many hockey fans around these days.
The second quote -- "Given all the padding that hockey players wear, being punched by an opponent hardly is more significant than being hit by a toddler" -- is by Dave Friedman. The "wry humor and hipness" one is from paulfrommpls. Here's his blog.

Greenhouse ends the opening passage to her article -- the part I've quoted -- with:
It is no surprise that the new chief justice's every vote is being tabulated and scrutinized. But so is his every metaphor.
Well, the attention to the metaphor is partly in the nature of blogging. It was a nice specific, textual thing to talk about. I love when something like that pops out in a Supreme Court case (or somewhere else in the news). It's one of those things that says bloggable to me. Indeed, I'm scrutinizing the writing in the NYT right now because it said bloggable to me... which it would have said even without calling my name (which gets my attention big time).

The NYT piece isn't about blogging phenomena, though. It's about judging John Roberts. The part about our little boxing/hockey conversation is followed by some quotes about Roberts' writing by usual suspect quotemeisters Erwin Chemerinsky (Roberts' "prose style is clear and easy to follow") and Akhil Amar (praising the "elegance and economy" and "occasionally snappy line"). This leads to a discussion about whether Roberts is really a judicial "minimalist." No overarching conclusions there.

The piece rolls toward a conclusion with the observation that Roberts doesn't much like quoting law review articles (a quality shared by most judges, I'd say). Here, the key quote is from Harvard lawprof David Barron: "It's as if the answers to all questions are already there, completely internal to the court, to be teased out of the existing cases."
Relying on precedent as the only source of law is an approach with strengths and weaknesses, Professor Barron said, noting that on the one hand, precedent can be a smokescreen, "a rhetorical device to hide the inevitable policy making," while on the other, "it has its own constraining effects," making a judge less likely to embrace dramatic change in the status quo.
True enough, but it's an observation that you can make about nearly any judge. This rhetoric about rhetorical devices is the stock in trade of the law professor...

...including the lawprof blogger. So bring on the judicial metaphors and rhetoric... I need bloggables.

Oh, but the term is over. No new material! We'll have to go back over the old. In fact, I'm running a series of seminars over the rest of the summer here at the law school in which we hash over one case each Tuesday. I'm taking over the first slot, which I'd previously given to someone else, who has an out-of-town opportunity to pursue. I'm the emergency fill-in. I'll be doing the hallucinogenic tea case, which happens to be the first case Akhil Amar talks about in illustrating Roberts' penchant for the "occasionally snappy line":
[Amar point to] a majority opinion that rejected the government's application of federal narcotics law to stop a Brazil-based religious group from importing a hallucinogenic tea for use in its rituals. "The government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions," the chief justice wrote.
Ah, good place to end a rambling blog post about hipness! We've got your hallucinogenic drugs and that hippie irritation with the government and all its rules, man.


Dave said...

The New York Times embodies obtuse when ti comes to all things web.

I predict they will be bankrupt in ten years. Good riddance to them.

Mary said...

Cute story. I just hope in years to come, this is not what immediately comes to the public's mind as passing for scholarship at UW Law.

At first, your blog may seem to be great publicity. But at some point, linking your work here so closely to the law school may prove a liability. I wonder if any other alums, or any of your colleagues, share my concerns.

I think UCLA benefits from Volokh's legal discussions, and Tennessee probably did not have Wisconsin's reputation to start with (plus Glenn doesn't seem to use the UT name there all that much.)

Troy said...

Nice sermon Mary sunshine.

David said...

Robert's ruling is clear, concise, and humorous. Which is to say, everything the liberals hate. Their natural abhorrence for anything with a line drawn denoting responsibility is predictable. The ACLU would be prosecuting this case if the bleeder had died with the cops watching through the window.

I think the blogsphere will help make discourse in the law less obtuse and less prone to confusion when inevitably presented to the lay person.

I wonder if law schools grade down for brevity and clarity as opposed to wordy and obtuse?

Looking forward to my next jury service as summer is upon us.

Internet Ronin said...

There probably isn't much need for such concern, Mary. If someone doesn't like what Ann writes here, they can probably ignore it. Most adults aren't all that interested in what other people they don't know personally have to say about most subjects that don't concern them personally anyway. Those that are interested are usually mature enough to understand that there are ausually a variety of ways of looking at things and don't get all that excited about the fact that someone has an opinion different than their own.

If someone were to decide not to give money to the university because of something Ann writes here, they probably would have seized on some other reason as an excuse for donating money if she didn't. Although some donors do get excited about this or that thing that happened on campus, person, or some perceived slight, the vast, vast majority don't.

Given your concerns, I am surprised that you think UCLA benefits from Volokh's blog. Volokh has gone into great detail about subjects that make large numbers of people extremely uncomfortable, such as gay sex practices and manifestations of latency, not to mention the strong advocacy for gay marriage found in numerous posts there.

Ann Althouse said...

Mary: You probably didn't notice when you were a student here, but the faculty at the law school has a pretty good sense of humor and tends to appreciate alternate takes on legal things. Why read a blog you don't get and don't like?

Dave said...
This comment has been removed by a blog administrator.
Mary said...

Oh, don't worry ... I get it.
Those are valid concerns, though, and whether your current friends on the faculty have a "sense of humor" or not is quite irrelevant.

I suspect as you keep blurring the blog/scholarship, the public will link Althouse/UW Law, for better or worse. Initially, the publicity may work in the school's favor, but then?

I see what your getting from using the school's name here, but exactly how does this benefit the law school's reputation for serious scholarship again?

Dave said...

So I notice the Times quotes me, without attribution. (The quote about the padding that ice hokcey players wear.)

Lazy, stupid bastards. I'm gonna sue. I figure there are enough lawyers who read this blog regularly for me to have a legal dream team. Eat your heart out OJ Simpson.

I seek justice! Nothing less than the complete and total destruction of the New York Times for violating my civil rights!

(Yes, I'm being sarcastic. About pursuing legal action against the Times. Not about them being lazy, stupid bastards.)

Dave said...

"Volokh has gone into great detail about subjects that make large numbers of people extremely uncomfortable, such as gay sex practices and manifestations of latency"

"Manifestations of latency"? Huh? What's that?

The Zero Boss said...

"How about a link to the post? Come on, Times! You've got to do internet properly. It's not Greenhouse's fault, but really, that approach to links is unbelievably obtuse."

Eh. The lack of link credit sucks, but it's not like you'd get much out of it anyway. I remember when I was in the NY Times, and Wizbang! gave me an "atta boy" link. I got more traffic from Wizbang than from the NYT.

But I agree. It's 2006, dudes. Try hyperlinking. It's nifty.

vnjagvet said...

Mary, lighten up lass.

Since when are blogs required to represent "serious scholarship"?

Isn't intellectual honesty, a sense of humor, a probing mind and an ability to make complex legal concepts interesting and relevant enough for you?

Internet Ronin said...

Dave: Congratulations on being quoted, and accurately at that! I wouldn't be too hard on them about the attribution if I were you - they were probably afraid that the other "dave" would think they meant him and he would sue.

Now that you've been quote by the New York Times, courtesy dictates that you subscribe. Your subscription could make the difference between profit and loss for the Times this year. Who knows, it could even stop their march to bankruptcy you predicted earlier! (Paid for by the Save the NYTimes Comm.)

Personally, I think this new-found willingness to quote bloggers and their commenters is actually a cunning plan developed by the business department to increase readership and subscriptions by targeting high concentrations of their critics. They don't quite "get" hyper-links they will. Eventually.

As for the "manifestations of latency" line: never mind - it wasn't serious and isn't worth going into.

Dave said...

Internet: I already subscribe. Hence the irritation.

AJD said...

vnjagvet: Since when it is "intellecutally honest" to call yourself a moderate and then always bash the left?

But I'm sure you're right: all the discussion of television programs and breasts will undoubtedly affect the Wisconsin Law School's reputation.

But in which direction, I ask with a strong sense of intellectual honesty.

vnjagvet said...


Why waste your time in the presence of what you believe to be intellectual dishonesty? Are you a masochist?

The web is real big, and I am pretty sure there is no magnetic force directing you here.

Joan said...

Ann, thanks for posting this, and for the link. It cracks me up that with all the truly intelligent and interesting comments that you can find here, the NYT chose that line of mine.