"It's totalitarian indoctrination, of course, and it's meant to be."

Writes Glenn Reynolds, about the mandatory DEI training for first-year law students at University of Wisconsin Law School (where I was a lawprof from 1984 to 2017).

Reynolds observes: "This sort of thing also creates a pervasively hostile educational environment on account of race, as courts are starting to notice."

He links to TaxProf Blog, which copies the text of Alan Rozenshtein at Volokh Conspiracy: "Mandatory DEI Trainings and Academic Freedom":

"The naive view is that the refusal to defend West marks a sea shift in black attitudes toward Jews..."

"... transcending the impulse to defend the indefensible just because it was done by a fellow African American. The cynical view is that if West hadn’t first angered black people with his comment that slavery was 'a choice,' and betrayed black leaders with his decision to put on the MAGA cap, the reaction would have been entirely different. West’s accusations... [suggest that] Kanye West has lost his mind. But that doesn’t explain enough. If West had blamed the Iroquois for his woes, that would be unhinged. But he didn’t. He blamed the Jews, and that’s no accident of mental illness. West found a powerful political explanation for his experience, one that already has a pedigree in the black community—anti-Semitism. Look at his accusations again: Reference to Jewish exploitation is de rigueur in writings about blacks and Jews...."

Writes Elliot Kaufman, in "O Ye of Little Faith: The Anti-Semitism of Kanye West The billionaire star is not just crazy. His Jew-hating politics have a history—and a radical potential" (Commentary). Much more detail at the link. But just a bit more, from the conclusion:

"Hi Ann - long-time local reader. After Breyer mused on 'super stare decisis' today I duck-duck-go'd it and your 2005 post was one of the first results...."

"I was struck by how it felt like this post could have been written today. Plus ça change." 

That's from my email. The 2005 post is "Luttig and 'super-stare decisis.'" I'll just print the whole thing (below) so you can read it and see how up-to-date it is.

First, here's what Justice Breyer said:

It is certainly true that we cannot base our decisions on whether they're popular or not with the people. Casey seemed to say we shouldn't base our decisions not only on that but whether they're going to -- whether they're going to seem popular, and it seemed to me to have a paradoxical conclusion that the more unpopular the decisions are, the firmer the Court should be in not departing from prior precedent, sort of a super stare decisis, but it's super stare decisis for what are regarded as -- by many, as the most erroneous decisions. Do you think there is that category? Is there -- or is it just normal stare decisis? 

And here's what I wrote 16 years ago (when GWB needed to fill a Supreme Court seat):

Jonathan Turley writes that he was "a tad naive in hoping that an academic discussion on the history and standards of it might offer a brief hiatus from hateful rhetoric on both sides."

Hate! Don't say that word! Nancy Pelosi is a Catholic, and she freaks out at the word "hate."

Here — at The Hill — is Turley's reflection on his sojourn before the House Judiciary Committee. It's almost entirely a self-defense, because he's being attacked for contradicting things he said in testimony when Obama was President and when Bill Clinton was President:

Despite 52 pages of my detailed testimony, more than twice the length of all the other witnesses combined, on the cases and history of impeachment, [Washington Post columnist Dana Milbank] described it as being “primarily emotional and political.” Milbank claimed that I contradicted my testimony in a 2013 hearing when I presented “exactly the opposite case against President Obama” by saying “it would be ‘very dangerous’ to the balance of powers not to hold Obama accountable for assuming powers ‘very similar’ to the ‘right of the king’ to essentially stand above the law.”

But I was not speaking of an impeachment then. It was a discussion of the separation of powers and the need for Congress to fight against unilateral executive actions, the very issue that Democrats raise against Trump. I did not call for Obama to be impeached....

In my testimony Wednesday, I stated repeatedly [as I stated in my testimony during the Clinton impeachment] that a president can be impeached for noncriminal acts.... My objection is not that you cannot impeach Trump for abuse of power but that this record is comparably thin compared to past impeachments.... ... Democrats have argued that they do not actually have to prove the elements of crimes.... In the Clinton impeachment, the crime was clearly established and widely recognized.... [W]e are lowering impeachment standards to fit a paucity of evidence and an abundance of anger.... 

There should have been a witness who did take the position that the President can only be impeached for criminal acts. Turley took a middle position, and perhaps he demonstrates the dangers of moderation. He's drawing distinctions that his antagonists can fail or decline to see.

I see there's a column at The Nation titled "The Republicans’ Star Impeachment Scholar Is a Shameless Hack/Jonathan Turley’s testimony was so inconsistent, it contradicted his own previous statements on impeachment." Elie Mystal writes:

"Ever the good student, Jeong... absorbed a bastardized version of critical legal studies and critical race studies, both prevalent at Harvard Law."

"Those by now hoary theories portray the great traditions of Anglo-American jurisprudence as just a mystifying cover for illegitimate power. 'In law school,' Jeong writes in her Rolling Stone post, 'we learned that due process is what we get in lieu of justice. And what’s due process besides a series of rules that are meant to keep things as predictable as [f***ing] possible?' It would be salutary for Jeong to live for a while in a society without due process and where the workings of justice are not 'as predictable as [f***ing] possible.'"

From "Sarah Jeong Is a Boring, Typical Product of the American Academy" by Heather Mac Donald in National Review.

I don't understand attacking Critical Race Theory and Critical Legal Studies as "hoary." "Hoary" means "Ancient; venerable from age, time-honoured"(OED). Mac Donald objects to the disparagement of "the great traditions of Anglo-American jurisprudence." If tradition is something you like, hoariness is a plus.

I don't think cursing about the regularity of rules is much of an effort at Critical Race Theory and Critical Legal Studies, and apparently Mac Donald doesn't either, since she calls what Jeong is doing "bastardized."

I haven't read enough of the Jeong oeuvre to have a real opinion of the quality of her mind, and I don't know what, specifically, Harvard lawprofs were teaching in the years when she attended. Critical Race Theory and Critical Legal Studies were vibrant back in the 1980s, and lawprofs said all sorts of things under those labels back when the theories were young and fertile. The lawprofs who did this sort of thing used to argue with each other, and it wasn't boring at all.

John Paul Stevens, the 97-year-old former Supreme Court Justice, writes "Repeal the Second Amendment."

It's a NYT op-ed.

Justice Stevens says that the student demonstrations last Saturday are "a clear sign to lawmakers to enact legislation prohibiting civilian ownership of semiautomatic weapons, increasing the minimum age to buy a gun from 18 to 21 years old, and establishing more comprehensive background checks on all purchasers of firearms."

But the students should ask for more — send more clear signs — and "demand a repeal of the Second Amendment." Usually, advocates of gun control tend to give assurances that they're not out to repeal the Second Amendment. A forthright demand for a repeal of the Second Amendment would wreck those assurances and elevate the pro-gun side, which could credibly intensify its rhetoric with reality-based anxiety that they are coming to take away your constitutional rights. If they can take away your Second Amendment rights — if the Bill of Rights is on the chopping block — they may come for your freedom of religion next, they can take away your freedom of speech, you right to be free of unreasonable searches and seizures — whatever they like, whatever they think stands in their way.

The op-ed quickly shifts to a repetition of the argument made by the losing side in the 2008 Supreme Court case of District of Columbia v. Heller and set out in Justice Stevens's dissenting opinion. Stevens could have written an op-ed simply saying that Heller is bad and should be overruled. Then he wouldn't be directly threatening our constitutional rights, just informing us that we're mistaken about the existence of one of them. Indeed, we would be "overturning that decision" with a constitutional amendment:

[Heller] has provided the N.R.A. with a propaganda weapon of immense power. 

Rights as propaganda. Look around. How often do we use "rights" as propaganda? That question used to dominate discussions within legal academia. You can get up to speed on what I lived through in the 1980s by reading "legal theory: critical theory/Critical Perspectives on Rights... The Critique of Rights." I'll just list the 5 propositions discussed at that link, which goes to a Harvard website:

1. The discourse of rights is less useful in securing progressive social change than liberal theorists and politicians assume.
2. Legal rights are in fact indeterminate and incoherent.
3. The use of rights discourse stunts human imagination and mystifies people about how law really works.
4. At least as prevailing in American law, the discourse of rights reflects and produces a kind of isolated individualism that hinders social solidarity and genuine human connection.
5. Rights discourse can actually impede progressive movement for genuine democracy and justice.

Back to Justice Stevens:

Overturning [Heller] via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.

I had to go back to the NYT webpage to recheck the language even though I knew I copied and pasted it. I was shocked at "get rid of the Second Amendment." Get rid of. Not "repeal." Get rid of. Not get rid of Heller, but get rid of the Second Amendment.

And it would be simple!? That's just a weird thing to say. It's not simple at all to amend the Constitution. Not only do you need 2/3 supermajority in both Houses of Congress, you are defeated if one house in the legislature of 13 states says no. This is why I was so damned sure in 2004 that George Bush's anti-gay-marriage amendment would never become part of the Constitution.

It would not be simple to get rid of the Second Amendment through the amendment process. It would be virtually impossible.

And the idea that you'd excise a right from the Constitution to "weaken" a lobbying group that "stymie[s] legislative debate" is repellant. Notice the motive of restricting speech. A group speaks too powerfully; we need to change the Constitution.

Stevens concludes:

That simple but dramatic action would move Saturday’s marchers closer to their objective than any other possible reform. 

We should remove rights from the Constitution because it would be dramatic and because it would move marchers closer to their objective??

I am very sad to see Justice Stevens writing like that, but he's made this proposal before. Back in 2014, he published a not-well-received book — "Six Amendments: How and Why We Should Change the Constitution" — that reframed various old dissenting opinions of his as proposals to amend the Constitution. Of course, the Second Amendment was in the set of six.

What's new is that his proposal to get rid of the Second Amendment is tied to the student protests: Let's seize upon their youthful enthusiasm, let's weaponize their passion, and use it to get somewhere we've always wanted to go.

I like kids as much as the next guy, but I'm not on the follow-the-kids bandwagon, especially when it comes to the value of respecting the American tradition of constitutional rights.

"There is Critical Race Theory scholarship connecting a preference for formality to race," I said in a post speculating about why Clarence Thomas might have said "I like formality."

I was expressing skepticism about the cue in the NYT (from Adam Liptak) to interpret Justice Thomas's statement to mean that "he was content with the way things are." (This was in reference to the way the Supreme Court Justices communicate by paper memo, and not by email or in face-to-face discussions.)

I said:

I could think of some other ways to interpret those 3 words and don't like being told to think of Justice Thomas as complacent and stiff. A person might like formality without being content with the way things are. A preference for formality can arise out of discomfort and mistrust. What kind of person shies away from free-wheeling banter and wants things put in writing?

I dropped a rare footnote: "There is Critical Race Theory scholarship connecting a preference for formality to race. Citation to come." That was 3 days ago, and at least one commenter has signaled he's still waiting. Did I think he'd forget?

I'd known all along what I wanted to cite, the Patricia J. Williams book from 20 years ago called "Alchemy of Race and Rights: Diary of a Law Professor." Unfortunately, that's not on Kindle, so needing to find my hard copy slowed me down.

In Chapter 8, "The Pain of Word Bondage," Williams describes the willingness of her colleague Peter Gabel to rent an apartment with no written agreement, to hand over a $900 cash deposit to strangers without even getting the keys. She, a black, female law professor, could not share his warm feeling for informality:

… I was raised to be acutely conscious of the likelihood that no matter what degree of professional I am, people will greet and dismiss my black femaleness as unreliable, untrustworthy, hostile, angry, powerless, irrational, and probably destitute. Futility and despair are very real parts of my response. So it helps me to clarify boundary; to show that I can speak the language of lease is my way of enhancing trust in me in my business affairs. As black, I have been given by this society a strong sense of myself as already too familiar, personal, subordinate to white people. I am still evolving from being treated as three-fifths of a human, a subpart of the white estate. I grew up in a neighborhood where landlords would not sign leases with their poor black tenants, and demanded that the rent be paid in cash; although superficially resembling Peter's transactions, such informality in most white-on-black situations signals distrust, not trust. Unlike Peter, I am still engaged in the struggle to set up transactions at arm's length, as legitimately commercial, and to portray myself as a bargainer of separate worth, distinct power, sufficient rights to manipulate commerce.

Peter, I speculate, would say that a lease or any other formal mechanism would introduce distrust into his relationships and he would suffer alienation, leading to the commodification of his being and the degradation of his person to property. For me, in contrast, the lack of formal relation to the other would leave me estranged. It would risk figurative isolation from that creative commerce by which I may be recognized as whole, by which I may feed and clothe and shelter myself, by which I may be seen as equal — even if I am a stranger. For me, stranger-stranger relations are better than stranger-chattel.

Now, take that observation and test out whether it could be similar to what Clarence Thomas was thinking when he said "I like formality."

"Justice Clarence Thomas, who has not asked a question from the Supreme Court bench since 2006, was expansive and gregarious."

"Justice Samuel A. Alito Jr., who can appear a little dour during arguments, revealed a lively wit. Justice Sonia Sotomayor said she was working to temper a combative questioning style 'that has held me in bad stead.'"

So begins Adam Liptak's NYT article "Three Supreme Court Justices Return to Yale."

Justice Thomas... He acknowledged being a “cynical and negative” law student, blaming immaturity and the unsettled political climate of the early 1970s. “I cannot say we were thinking straight about a lot of things, even if we were not using illegal substances,” he said. “I wish I came here at a time when I could have been more positive.... There is so much here that I walked right by.”...

The justices were questioned by Kate Stith, a law professor at Yale. She asked Justice Alito what he had been reading. “I have two books that are inspirational,” he responded. “I keep them on a table by my bed, and I try to read a little bit of them every night. It’s ‘My Grandfather’s Son’ and ‘My Beloved World.’ ”

Alito is hilarious. There's also this:

Justice Sotomayor cited two reasons for the court’s reluctance to use technology [to communicate with each other]. One was tradition. “The other,” she said of some of her colleagues, “is they don’t know how.”

And the décor is from another era. “We still have spittoons by our seats,” Justice Alito said.

I assumed that was a punchline from Alito, but Liptak signals that it's literally true that there are spittoons. It's still a humorous line, but less funny — less funny of Alito if there really are spittoons,* even though making the observations at that point is a concise, amusing way to say the Court is old-fashioned. And since it's funny if they have spittoons, the sum total of funniness is at least as good as if Alito made it up.

Liptak continues with a Thomas quote, introduced with a Liptak sentence about how to understand the state of mind it reflects:

Justice Thomas said he was content with the way things are. “I like formality,” he said.

I could think of some other ways to interpret those 3 words and don't like being told to think of Justice Thomas as complacent and stiff. A person might like formality without being content with the way things are. A preference for formality can arise out of discomfort and mistrust.** What kind of person shies away from free-wheeling banter and wants things put in writing?

__________________________________

* There are real spittoons: "Each [Justice] has... a spittoon. The spittoons serve as wastebaskets. The last time a justice used a spittoon for its intended purpose was in the early 20th century."

** There is Critical Race Theory scholarship connecting a preference for formality to race. Citation to come.

ADDED: Here's what I was looking for, Patricia J. Williams, "The Alchemy of Race and Rights," Chapter 8, "The Pain of Word Bondage." Williams describes the willingness of her colleague Peter  to rent an apartment with no written agreement, to hand over a $900 cash deposit to strangers without even getting the keys. She, a black, female law professor, said:

… I was raised to be acutely conscious of the likelihood that no matter what degree of professional I am, people will greet and dismiss my black femaleness as unreliable, untrustworthy, hostile, angry, powerless, irrational, and probably destitute. Futility and despair are very real parts of my response. So it helps me to clarify boundary; to show that I can speak the language of lease is my way of enhancing trust in me in my business affairs. As black, I have been given by this society a strong sense of myself as already too familiar, personal, subordinate to white people. I am still evolving from being treated as three-fifths of a human, a subpart of the white estate. I grew up in a neighborhood where landlords would not sign leases with their poor black tenants, and demanded that the rent be paid in cash; although superficially resembling Peter's transactions, such informality in most white-on-black situations signals distrust, not trust. Unlike Peter, I am still engaged in the struggle to set up transactions at arm's length, as legitimately commercial, and to portray myself as a bargainer of separate worth, distinct power, sufficient rights to manipulate commerce.

Peter, I speculate, would say that a lease or any other formal mechanism would introduce distrust into his relationships and he would suffer alienation, leading to the commodification of his being and the degradation of his person to property. For me, in contrast, the lack of formal relation to the other would leave me estranged. It would risk figurative isolation from that creative commerce by which I may be recognized as whole, by which I may feed and clothe and shelter myself, by which I may be seen as equal — even if I am a stranger. For me, stranger-stranger relations are better than stranger-chattel.

Ted Cruz's office says "in the mid-1990s, the Harvard Law School faculty included numerous self-described proponents of 'critical legal studies'..."

"... a school of thought explicitly derived from Marxism – and they far outnumbered Republicans."

That's in response to a New Yorker article quoting something Cruz said in a speech 3 years ago. (What Cruz said back then, at an Americans for Prosperity conference, was that when he was at Harvard Law School "There were fewer declared Republicans in the faculty when we were there than Communists! There was one Republican. But there were twelve who would say they were Marxists who believed in the Communists overthrowing the United States government.")

The Cruz spokesperson called it "curious that the New Yorker would dredge up a three-year-old speech and call it 'news.'"

Curious... there's a noncommittal word. I don't see anything wrong with digging stuff out of old Cruz speeches. He's a new character on the national stage, so it's not like old territory is being reworked. It was an inflammatory statement, and he needs to stand by it (and back it up), defend it as hyperbole, or concede he was wrong.

Ronald Dworkin — a giant among law professors — has died.

He was 81.

His legal arguments were subtly presented applications to specific problems of a classic liberal philosophy which, in turn, was grounded in his belief that law must take its authority from what ordinary people would recognise as moral virtue....

Perhaps Dworkin's greatest achievement was his insistence on a rights-based theory of law, expounded in his first and most influential book, Taking Rights Seriously (1977), in which he proposed an alternative both to Hart's legal positivism and to the newly minted theories of the Harvard philosopher of law John Rawls....

He remained an unapologetic, indeed proud, liberal Democrat, unshaken in his loyalty to the New Deal tradition set by his hero Franklin D Roosevelt, even as such ideas became less and less widely held. It is possible that this shifting of the political centre of gravity under him deprived him of a more prominent career as a public intellectual.

Read the whole thing. Click on the Dworkin tag to see what we were saying about him while he was alive.

When I went to law school beginning in 1978, at NYU — where Dworkin taught — nothing was taken more seriously than "Taking Rights Seriously." That was just before the outburst that was Critical Legal Studies, in a time and a place where we were expected to believe that rights were real. Shame on you if you suspected they were inventions of judges.

"Should Professor Campos’s authorship of Inside the Law School Scam come as a surprise?"

"In hindsight, perhaps not. The universe of law professors writing negatively about the legal academy is not huge. For a law prof, saying that the status quo in legal education has problems constitutes a declaration against interest."

Says David Lat. Me, I've been hearing professors saying negative things about legal education since the day I started work in the legal academy (in 1984). But then I stepped right into the hotbed of Critical Legal Studies. Back then, everyone was reading "Legal Education and the Reproduction of Hierarchy: A Polemic Against the System," by Duncan Kennedy. Campos's criticisms are mild compared with that! Has everyone forgotten that 1983 book? The so-called "little red book" barely even has a Wikipedia entry. From the Preface:

The general thesis is that law schools are intensely political places, in spite of the fact that they seem intellectually unpretentious, barren of theoretical ambition or practical vision of what social life might be. The trade school mentality, the endless attention to trees at the expense of forests, the alternating grimness and chumminess of focus on the limited task at hand, all these are only a part of what is going on. The other part is ideological training for willing service in the hierarchies of the corporate welfare state.

To say that law school is ideological is to say that what teachers teach along with basic skills is wrong, is nonsense about what law is and how it works. It is to say that the message about the nature of legal competence, and its distribution among students, is wrong, is nonsense. It is to say that the ideas about the possibilities of life as a lawyer that students pick up from legal education are wrong, are nonsense. But all this is nonsense with a tilt, it is biased and motivated rather than random error. What it says is that it is natural, efficient and fair for law firms, the bar as a whole, and the society the bar services to be organized in their actual patterns of hierarchy and domination.

Because most students believe what they are told, explicitly and implicitly, about the world they are entering, they behave in ways that fulfill the prophecies the system makes about them and about that world. This is the link-back that completes the system: students do more than accept the way things are, and ideology does more than damp opposition. Students act affirmatively within the channels cut for them, cutting them deeper, giving the whole a patina of consent, and weaving complicity into everyone’s life story.

Resist! 

Now, that's not really a declaration against interest for Kennedy, and Campos's book isn't a declaration against interest either. Both men were/are promoting their own work from a safe position of tenure.

Rush Limbaugh talks about Critical Legal Studies... and Obama's legal education at Harvard.

From yesterday's show:

[Obama] attended Harvard Law School at the height of something that it was promoting, education technique or a theory.  It was called critical legal studies.  Critical legal studies was in its ascendancy at Harvard Law when Obama was there.  You can look it up.  Just Google critical legal studies.  It is out and out Marxism. 

In a nutshell, critical legal studies claims that law is just politics by other means.  It is a way for the rich to keep the poor working man down and deny him opportunities for prosperity.  That is what Obama was taught at Harvard and based on what he believes and is doing it looks to me like he probably did get good grades.  Look it up if you want.  Critical legal studies.  Law is just politics by other means.  You can even turn it around.  Politics is just law by other means.

Has Obama failed to nominate a strongly liberal Supreme Court Justice because of the insufficient supply of liberal law professors?

Recounting the history of Harvard's struggle with Critical Legal Studies in the 1980s and the "postradical" period that followed, lawprof David Fontana writes:

The stories of the postradical generation are not only of intellectual interest but also affect the future of American government. Obama has been criticized by many for not nominating enough theoretically ambitious and bold liberals to the federal courts. Part of the reason for that dynamic, however, has less to do with politics than with the supply of such theoretically ambitious liberals—particularly law professors.

Many of the more-radical jurisprudential movements from the earlier generations have succeeded in opening eyes to the flaws in the legal system, but beyond that have largely disappeared. The Old Left efforts to push courts to be more aggressively liberal floundered after years of courts dominated by Republican appointees. The New Left efforts by the critical-legal-studies movement and others floundered, in part because, like with the Old Left, their ideas were met with sustained resistance from the elite institutions of the legal system.

Spare me! There are plenty of strongly liberal and lefty lawprofs and if you want theoretical ambition you can find it. The reason these folks don't get nominated to the Supreme Court is crushingly obviously because they'd be soundly rejected by the American people and borked in the Senate.

The country has moved to the right, so there are fewer law professors who are truly liberals. 

Yeah, there's a little balance now. I can imagine what "truly liberal" means to Fontana. I think they're nearly all liberal from the standard that prevails among American voters, but that's not truly liberal.

Many of those on the left today are simply trying to maintain older decisions... Others on the left, who once might have aggressively pursued liberal legal ideas, are now increasingly writing about law from a more theoretical or quantitative, and therefore less practical, perspective—making their writing less related to the issues judges decide and making them less obviously candidates for future judgeships.

And some on the left who write more directly about cases and courts, like Tushnet or Dean Larry Kramer of Stanford Law School, and Dean Robert C. Post of Yale Law School, are now increasingly members of the "popular constitutionalism" movement, who believe that courts should be stripped of all or most of their decisional powers—hardly the prejudicial profile that one wants.

"Prejudicial"? I know what he meant to say but... what a hilarious word!

Anyway, yes, many brilliant liberal/lefty lawprofs have applied their minds to generating arguments for why courts shouldn't enforce rights, but I think the reason they have gone in that direction is that they have perceived that it is the most effective way to push back against the conservative and liberal-but-not-truly-liberal jurists who get appointed to the Supreme Court. The "popular constitutionalism" movement is further evidence that the American people have a pretty conservative view of what judges should do and how the Constitution should be interpreted. And that's why the nominees aren't "theoretically ambitious and bold liberals."

News story that reads like a bad law school exam.

From UPI:

A Massachusetts man has been charged with catching and killing a squirrel and then roasting it with a blowtorch in his backyard.

Odum Chaloeurn's neighbors in Lowell reported him to the police, the Boston Herald said. He was charged with animal cruelty Wednesday.

Chaloeurn reportedly argued to police that he was not cruel to the squirrel since it was dead before he began cooking it. He allegedly pursued the squirrel on foot, grabbed it by its tail and then knocked it against a tree to kill it.

Squirrels are actually legal game in Massachusetts to licensed hunters. But Lowell is in a district where the squirrel season opens Saturday.

Discuss!

IN THE COMMENTS: Duscany said:

I wonder what the charge would be if he had sauteed the squirrel in butter and garlic, then slowly simmered it the rest of the afternoon in mushrooms and Chianti and served it at dusk with polenta while Vivaldi played on the digital radio and his girlfriend slipped into something comfortable?

Duscany's fine understanding of Critical Legal Studies earns him an A.

Hey, you mediocre law students. You think you're worth Erwin Chemerinsky's "enormous talent and energy"?

Lawprof Michael Dorf is writing about the UC Irvine/Erwin Chemerinsky affair. (Via TaxProf.) He's saying that it wouldn't really have been worth it for Chemerinsky to devote his "enormous talent and energy" to transforming legal education at a school that wasn't already top tier:

Even solid but middling-ranked law schools can have at best a marginal impact on the course of legal education as a whole because no matter what they do to improve the actual outcomes for their students, they won't attract the very best students---and I doubt that, on average, an excellent innovative education for a mediocre student will produce better lawyers than a pretty good traditional education for excellent students. This explains why Yale Law grads---many of whom learn virtually no law at all while in law school---prove to be excellent lawyers; they have the credentials coming in.

That first sentence is a strange conglomeration of ideas: 1. Students who don't win admission to top tier schools are "mediocre." 2. It's not worth much to transform legal education at one school unless you can affect "the course of legal education as a whole." 3. A top legal educator ought to want to develop new teaching methods on the students who would be the most effective learners under any teaching method. 4. A law professor ought to want to produce the "best lawyers," so, naturally, starting with the "best students" is preferable.

I have a few reactions: 1. Students who don't get into top tier schools don't deserve to be called "mediocre." 2. If you want to test the effectiveness of new methods, what can you prove if you start with students who will do well following any method? 3. If you are truly interested in teaching methodology, you should want to have the greatest effect on the students you reach, not simply to be able to point to successful graduates who began law school so far advanced that they would have done well even if they hadn't been taught anything. 4. Law professors ought to know when they have snobby, elitist opinions and to make some effort to hide it.

UPDATE: Dorf responds to my comments here. He says I "accuse[d him] of being an elitist snob." Well, now, I only insinuated that he might have "snobby, elitist opinions" (and not enough sense to hide it). But, okay, I guess that is basically accusing him of being an elitist snob. I was trying to be a little polite about about it. I believe Dorf concedes that he is elitist. He then addresses what he calls an "objection" of mine, which he restates as: "Why should someone have to have an impact on legal education as a whole rather than just one institution to want to lead that institution?" This wasn't so much an objection as an observation that he had made this point. So his response here isn't very interesting to me. Obviously, having a bigger impact is having a bigger impact. He says nothing about what I thought was the most interesting part of what I had to say:

[He assumed:] 3. A top legal educator ought to want to develop new teaching methods on the students who would be the most effective learners under any teaching method. 4. A law professor ought to want to produce the "best lawyers," so, naturally, starting with the "best students" is preferable....

[I observed:] 3. If you are truly interested in teaching methodology, you should want to have the greatest effect on the students you reach, not simply to be able to point to successful graduates who began law school so far advanced that they would have done well even if they hadn't been taught anything.

I'd like to see Dorf address that.

I should also note this exchange in the comments to his original post:

At 1:22 PM, Legal said…

Michael: I admire your willingness to stick to your guns here. But I think you'll have to yield on one point: it is not true that major academic movements all began at elite schools. How do you account for law and society, which began at -- Wisconsin?

At 2:26 PM, Michael C. Dorf said…

In response to "legal," I concede that law & society originated at Wisconsin. So if it counts as a "major" scholarly movement, then I concede the point, although I'd also note that Wisconsin is one of the country's top public universities.

Wisconsin is also the place of origin for Critical Legal Studies and Critical Race Theory. And let me register my irritation at "Wisconsin is one of the country's top public universities." I would like to see specific recognition of the University of Wisconsin Law School.

ADDED: I'm just focusing on "if it counts as a 'major' scholarly movement." If! Really! Explain "if."

Arguing with Armando about Bush v. Gore and Samuel Alito.

I try to stay out of arguments about Bush v. Gore. One of my earliests posts on this blog agonizes over the impossibility of teaching it to law students:

Bush v. Gore is important, but I find it hard to believe that people are willing to invest the time to understand the federal and state statutes and the federal and state constitutional law provisions needed to grasp the legal issues in the case. Even if they do spend the time, I think their intake of information is affected at every step by their preexisting mindset about what the Supreme Court did (e.g., stole the election, saved us from an overreaching state court). But most likely, they won't spend the time, because they know very well what happened. Where did that knowledge come from?

I remember the night the decision came down, watching reporters on TV trying to read and understand the opinion in front of live cameras. That seemed at the time to be antithetical to a real process of understanding a piece of writing, but in retrospect I think nearly everyone reached their understanding at that point. Perhaps that is what human understanding is, and the rest is filling in the details.

It is hopeless and crucial and absurd to teach Bush v. Gore.

It's much worse to try to argue about Bush v. Gore in the blogosphere, especially when you have to talk with very partisan folks who know damn well what they think and write for thoroughly political purposes. So what am I supposed to do when the DailyKos, with its 700,000+ visitors a day starts talking about something I wrote about Bush v. Gore? Armando takes a passage from an article I wrote years ago, which I happened to have posted in the comments section of this post the other day. He refers to the passage as a "pile of manure" and doggedly states his opinions without engaging with the intellectual substance of what I'd said.

Naturally, he doesn't read the whole article that precedes the conclusion, which parses all the legal texts. I don't have a link for it. You'd have to go into LEXIS to read it. Look for: Althouse, The Authoritative Lawsaying Power of the State Supreme Court and the United States Supreme Court: Conflicts of Judicial Orthodoxy in the Bush-Gore Litigation, 61 Md. L. Rev. 508 (2002). I don't blame him for not reading the whole thing, only for writing as if there wasn't an entire detailed article supporting the conclusion he's satisfied to call "manure." He writes that I do "not even bother to defend [Bush v. Gore] on legal grounds." But I do! Read the article. I just can't do it in short form on the blog.

Essentially, Armando does what I said in that old post that everyone does. My article conclusion ends with the line: "[T]hose who would criticize ought to see how the judges who voted for the outcome the critics liked were all doing something that they would have found a way to criticize if they had felt so motivated." But who can imagine Armando undertaking that particular thought exercise? In fact, I don't expect anyone to do that, because it's an unbelievable pain to work through the materials even without trying to adopt an experimental alternative perspective. And Armando's thing is to be a hardcore partisan, so why would he ever bother to spend his time like that?

Well, am I supposed to respond to him? On this one, it's monumentally easy to see in advance that arguing about what happened in Bush v. Gore is a mug's game.

But Armando uses my text to make an argument about the Alito nomination. I will talk about that. Looking at the way I wrote about Bush v. Gore, he asks:

[D]oes not Althouse admit that she too, is a legal realist? And given that admission, is it not fair to expect that Althouse would approve of a query in detail regarding Alito's views on legal issues? Is it not fair to expect that Althouse would not condemn critiques of the results of Alito's opinions without trying to engage in hypertechnical "gotcha-isms"?

No, I'm not a "legal realist." Legal Realism, like its close companion Critical Legal Studies, goes too far in portraying judges as acting in service of their own political and policy preferences. I simply recognize that the answers in many cases are not predetermined by text and precedent and, therefore, the individual judge's background, beliefs, values, and tendencies will affect the decision. It really matters who decides. I would guess even originalists like Justice Scalia and Thomas would admit that.

So, of course, we all ought to be concerned about what the mind of Alito is really like. Of course, it's not enough to say he's well educated and demonstrably proficient at crafting opinions from legal materials. So what's my answer to Armando's questions about how Alito's opponents should proceed?

It turns out I've already answered. Look at this post from last week, responding to that 1985 job application in which Alito professed a set of conservative beliefs:

Up until now, the attacks on Alito have been based on nothing of substance. Critics cherry-picked his cases, found the ones where he ruled against sympathetic parties, and treated the outcomes in cases as if there is no legal reasoning involved in reaching outcomes. Or they simply assumed that Alito must be a big right-winger because he (unlike Miers) was not being attacked from the right and conservatives all looked rather happy about having him as the nominee.

With this letter, we enter a new phase of the nomination process, in which the opponents have something very substantial to talk about. And, indeed, they must fight, based on this. I see two aspects to the coming fight.

First, there is the question of what is the better set of values. A lot of people will read Alito's statement and agree with it, while others will oppose it. Some may only care about a few of those issues or may agree about some things and not others. Though most of the talk will be about abortion rights, we have a valuable opportunity to talk about what the full set of conservative legal positions is, to compare them with the liberal positions, and to debate about which is better. I welcome this public debate and hope it can be done well.

Second, there is the question of how personal beliefs affect a judge's performance on the bench. Some will defend Alito by saying a good judge is a humble, faithful servant of the law who sets his personal, political beliefs aside. Related to this is one of Bush's big issues: the liberal judges are activist judges who make the law mean what they would vote for if they were legislators. In this rhetoric, the conservative judges somehow escape the temptation the liberal judges succumb to. As long as you have a conservative judge, the rhetoric goes, you don't have to worry about what his political beliefs are: He will do the proper, judicial thing and not "legislate from the bench" like those bad liberal judges. Those of us who are not political ideologues tend to think that judges try to follow the law, but that the texts and precedents are ambiguous or fluid enough to require some judgment to get to a decision. Thus, the background beliefs and political tendencies of any judge will need to flow into the decision-making, no matter how modest and dutiful the human being making the decision is.

Alito opponents should take the rule of law seriously and respect the institution of the courts. These are resources we all rely on. Trashing them is counterproductive. Challenge Alito in a way that also expresses a sound theory of constitutional interpretation. Work on a way to convince ordinary people that approaches other than originalism deserve respect. Help people care and believe in the individual rights you want courts to protect. Playing from the Legal Realism side, from an assumption that law is a kind of politics, empowers your opponents to say -- as they've been saying ad nauseam -- that you only want judges who will legislate from the bench.

Cries of pain heard.

The Washington Post's "Campaign for the Supreme Court" blog linked to my post about Alito, the FMLA, and Larry Tribe. This led one "SK" to write:

While I think many criticisms of Alito have been overstated, I wish you wouldn't have given Ms. Althouse the tie of day. Her ability to talk with people who may disagree with her rivals that of a four year old.

Well, maybe a four year old lawprof! I guess SK is referring to the way I wouldn't let Max (in the comments) get away with obfuscation. I kept trying to focus him on the real issues and rejecting answers that were not responsive. [ADDED: Or was it just the way I pointed out the Tribe was wrong?]

Then there's Roy at Alicublog, who linked to this post of mine (which concludes "Where are the passionate, Brennanesque liberals of yore, who really believed we have rights? Is that belief becoming solely a conservative notion?"). He writes in an update (after a wisecrack that reveals he seems to know nothing about Legal Realism, Critical Legal Studies, and ordinary left-wing political talk about law):

She teaches law? Jesus fucking Christ.

One needs nerves of steel to stay in the debate about law these days.

CONFESSION ADDED: For the longest time I was assuming that "the tie of day" was some sort of idiomatic expression I just didn't happen to know. Then a commenter made fun of the phrase and I realized for the first time that it was supposed to be "time of day." I'm sitting here in a café now laughing like a fool!