Posts elsewhere, a digest

I’ve been letting Adam down lately by posting a couple of items over at Volokh. One is a series of posts about my newest article, Adjudication Outside Article III. (I have a longer roundup post on that planned once those posts and some other things all go online.)

The other is an announcement that the Federalist Society’s Joseph Story Award has been given to one of the smartest law professors I know: Stephen Sachs, of Duke. Steve is brilliant, does creative and important work, and is the perfect person to receive the prize. This is also relevant to several recurring topics on this blog. Adam and I blogged last December about prizes for legal scholars, (Adam, me) and I think we ought to signal-boost good ones where they exist.

I’ve also written several posts about the Federalist Society which some of you loved and some of you hated. In Steve’s remarks accepting the prize, he provides some thoughts of his own:

Third, I’m honored to receive this award from the Federalist Society, which similarly combines a commitment to intellectual discovery with real-world accomplishment.

I wanted to become a lawyer, partly from my dad’s example, but also because, as a lawyer, you could go into a library, do some research, make an argument—and the hope is, at the end of it, the world would be different. This is the ideal that Hamilton described in the very first paragraph of The Federalist No. 1—that societies might be capable of “establishing good government from reflection and choice,” and not “forever destined to depend for their political constitutions on accident and force.”

I don’t know of any other organization, in America or elsewhere, whose members are simultaneously at the forefront of serious scholarship and at the forefront of government in quite the same way.

Finally, I’m particularly honored to receive this award because it shows something very special about FedSoc, something that’s unfortunately in diminishing supply today.

When I was a student, I wasn’t sure about joining FedSoc. I was still figuring out what I thought about things; I would have never attended one of these symposia; and I would never have expected to receive an award like this one.

But one of FedSoc’s true advantages, and the point I want to leave you with tonight, is that this openness, this willingness to bring people in to think things through and get to better answers, is its extraordinary strength.

By current standards, FedSoc’s politics are wildly diverse: they run the whole gamut from conservative to libertarian! That might not seem like much. But what it means is that, on any one issue, you can find someone in FedSoc who passionately but respectfully disagrees with you.

That’s true for controversial issues, like abortion or same-sex marriage or presidential candidates.

And it’s true for even more controversial issues, like economic liberty or industrial policy or the unitary executive or whether Erie Railroad v. Tompkins should be overruled. (Which it should.)

FedSoc has made the choice, and it’s a deliberate choice, not to make endorsements or write manifestos or establish litmus tests. There are no Thirty-Nine Articles which every one of you had to sign. Instead, there are just broad commitments—including a commitment to discussion, to reasoning together, as the way to get things right.

Now, FedSoc isn’t just a debating society: there really are positions that most people in it share. And these ideas matter.

The point of FedSoc is not just to have a good time talking (though we do).

And it’s not just to find people you agree with (though that can be a comfort).

It’s actually to reach the truth, talking it over with those with whom you share enough to make your disagreements meaningful.

In an age when disagreement is often treated like disloyalty, and when curiosity is often confused with cowardice, a commitment to open discussion and truth is like water in the desert.

Trump Creates Airport Chaos. Again.

One week after taking office in January 2017, Trump signed his first Muslim ban.[1] Even if we set aside the ethics of this executive order, and we should not, the near-universal consensus is that the administration’s execution of this ban was a total disaster. It contained numerous obvious legal problems—e.g., it confused short-term travelers with green card holders—and the roll out was beyond botched. Just one (egregious) example: the administration didn’t think through what to do about people already in the air.

In Border Wars [2], a recently released book on the Trump Administration’s immigration policy, Julie Hirschfeld Davis and Michael Shear offer a behind-the-scenes account of how the Muslim ban came to pass. You’ll have to read their book to get the full details [3], but the short version is that a small group within the administration, led by Steve Bannon and Stephen Miller, drafted the ban outside of the normal inter-agency process. Instead of giving relevant experts at the National Security Council, the Department of Justice, or the Department of Homeland Security time to weigh in and plan, Trump abruptly signed off on the policy on a Friday evening. The image that came to define this policy misfire was chaos at our major airports as people with what they thought were valid visas were unable to get into the country. (Here are 37 photos in case you want to remind yourself of what it looked like that time.)

You might have thought that Trump’s inner circle would have learned from this experience. After all, they issued the Muslim ban during their first week in power, so it’s perhaps understandable that they did not know how to manage a complex bureaucracy like the federal government. But, at least with respect to immigration policy, the same pattern has repeated again and again. From building a border wall to deciding to separate families at the border, the administration’s policy issuance and implementation has been poorly coordinated and poorly planned.

The same story repeated itself last week. Trump gave an Oval Office Address on Wednesday March 11th announcing a plan to halt travel from Europe. The speech, reportedly drafted by Stephen Miller and Jared Kushner, was filled with inaccurate statements and rolled out a policy the government was not prepared to implement. The result, once again? Chaos at our major airports as thousands of travelers waited in line for hours to clear customs. In the process, these travelers were likely exposed to coronavirus, and are thus likely to in turn spread around the country even more.

These two incidents of airport chaos illustrate how, three years apart, Trump is still relying on a small group of loyalists who do not understand how to manage the complex federal bureaucracy. Unfortunately, although the administration has made plenty of mistakes, it does not seem to be learning from them.

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[1] I know the media, courts, and even Wikipedia (https://en.wikipedia.org/wiki/Trump_travel_ban) have decided to play nice and call this executive order a “Travel Ban.” If you read the history of how it came to pass, it’s pretty clear that the Trump administration wasn’t motivated by fear of too many “travelers.”

[2] This is not sponsored content, but if you’re looking to buy a book, consider ordering from the Seminary Co-op Bookstores, which is the country’s first not-for-profit bookstores whose mission is book selling.

[3] I moderated a discussion last month with Julie and Michael about their book for the Institute of Politics. If you’re interested in learning more about the Trump Administration’s immigration policy, the video is available here.

Social Media Distancing

Adam and I were supposed to have dinner last night at one of my favorite restaurants, but we both decided to cancel as part of our efforts to bend the curve. As the current pandemic disrupts our daily lives, it’s hard to know whether to let it disrupt our virtual lives as well.

In the next few weeks I’ll likely be posting about some academic projects and other things that have nothing to do with the pandemic. (Unless dealing with the disruptions becomes so overwhelming that I stop posting at all.) That doesn’t mean I’m not thinking about it all the time, just that I have to make up for not being able to see Adam or the rest of you in real life.

Coronavirus and the Uncanny Valley of Democracy

The Chinese government took dramatic action when it shut down Wuhan and other cities in the Hubei province on January 23rd. There have been endless accounts of how the government imposed draconian travel restrictions and imposed a “war like” campaign to stop the spread of the coronavirus. The government was able to act so decisively, in part, because it is an autocratic state that is able to coerce its people’s movement, work, and activities.

Although democracies can’t coerce their people as easily, democratic governments have other advantages that help during times of crisis. Most notably, democratic governments are more transparent, they are more accountable to the people, and they have free markets that unleash individuals to find creative solutions to problems. These advantages are huge. They’re why democracies win wars at higher rates than autocracies and have faster growing economies. If I had to bet on what kind of government is going to be better able to address a major crisis, my money is on a democracy.

But this brings me to the concept of the uncanny valley. The uncanny valley is a concept from visual mediums. The idea is that depictions of people that are close-to-realistic, but not all the way realistic, are more off-putting than depictions that are much less realistic. I’d describe it in greater detail, but there’s really no way to do it better than 30 Rock did when Tracy Jordan asked Frank to “tell it to me in Star Wars” (start this clip at 4:45).

So why is this relevant?

I’m worried that the United States has slipped into the uncanny valley of democracy. We used to be all the way democratic — or at least, democratic minus the electoral college, gerrymandering, and a few other anti-democratic institutions — which was great for a crisis. We had transparent governmental institutions and amazing companies that were able to work together to solve problems.

Now, by contrast, every report coming out about the US government’s response to the coronavirus is that the Trump administration is trampling on the advantages that democracies have to address crises. For example, the administration is attempting to eliminate transparent institutions by trying to classify government deliberations on how to respond to the virus, and has prevented private firms and front line doctors from innovating in ways that would have helped increase coronavirus testing. (Though, to be fair, Steven Soderbergh warned us that the government might try to block private doctors from finding solutions — thankfully Elliott Gould didn’t listen.)

This is almost the worst of all worlds: a government with non-transparent institutions, dictating top-down “solutions,” but without state capacity to take dramatic steps. The Trump administration needs to reverse course fast and unleash the power of democratic institutions to help fight the coronavirus: be honest, be open, and allow for flexibility in the search for solutions.

____

Update: A good thread on how, in South Korea, transparency and innovation were a key to the successes they’ve had limiting the spread of the coronavirus.

The Assault on Doctrine

Will’s post on Hernandez v. Mesa highlights the latest offensive in the Supreme Court’s assault on doctrine. Over the last few years, in a number of cases, several conservative Justices have expressed their willingness to overrule prior decisions that established legal doctrine. Although their reasoning has varied depending on the case, the basic argument has been that various doctrines should be abolished because they were created by judges—which is, definitionally, true—and these doctrines are not sufficiently grounded in the constitution.

To be clear, the phenomenon I’m talking about is different than Justices expressing a willingness to overrule prior decisions generally. All Justices are open to overruling existing precedent some of the time, and the Court frequently does. And as Will points out in his new article, Precedent and Discretion, the best evidence suggests that the Roberts court has actually overruled precedent less often than the Rehnquist, Burger, or Warren Courts. What I’m talking about is Justices being specifically open to striking down “judge-crafted” law specifically because it was judge-crafted. For instance, one particularly on-point example is Justice Thomas’ concurrence last year in Gamble v. United States calling to revisit the doctrine of stare decisis itself.

When the court strikes down doctrine, it is striking down legal frameworks that help govern society. This is not to say that all doctrines are good or worth preserving, but judicial rules that have developed over time frequently serve important functions. For instance, in Hernandez v. Mesa, the doctrine being questioned is the legality of allowing Bivens actions, but Bivens created a pathway to check constitutional violations of federal officers.

Importantly, this assault on doctrine is occurring at the same time two other trends that limit our political institutions’ ability to govern: gridlock and preemption. The first trend—gridlock—is straightforward. Anyone that’s paid even the slightest attention to Congress knows that it increasingly has difficulty passing legislation to deal with anything more complicated than naming post offices, let alone pressing national problems like immigration reform or regulation of the tech sector. The second trend—preemption—is that federal laws have limited state and municipal governments’ ability to regulate a wide range of issues.

When taken together, these trends mean that, in many cases, the Supreme Court is rolling back legal rules that address significant issues without a realistic possibility that these rules will be recreated by national, state, or local laws. This problem is particularly acute in cases, like Will identified, where the doctrine was initially created to override other laws or authority in the first place.

Bivens Liability and Its Alternatives

On Tuesday, the Supreme Court decided in Hernandez v. Mesa that there is no cause of action for damages if a federal border patrol agent unconstitutionally shoots somebody across the border. The Court had recognized a cause of action under the Fourth Amendment against federal law enforcement agents in a 1971 case called Bivens, and extended it in two subsequent cases, but it has rejected further Bivens claims in every Supreme Court Bivens case in my lifetime and that doesn’t seem likely to change. Two Justices, Thomas and Gorsuch, have called for Bivens to be overruled on the grounds that it lacks a formal or historical basis.

Justices Thomas and Gorsuch are right about that the lack of a formal and historical basis, but I worry about the broader picture. As Justice Thomas’s concurrence notes, it’s not like there was no remedy for unconstitutional conduct before Bivens. Rather, as Thomas writes:

From the ratification of the Bill of Rights until 1971, the Court did not create implied private actions for damages against federal officers alleged to have violated a citizen’s constitutional rights. Suits to recover such damages were generally brought under state law.

What Justice Thomas does not note is that it has become very hard to bring those suits under state law either. There is some debate about whether that difficulty is attributable to Congress’s 1984 enactment of the Westfall Act, various judicial decisions arguably misconstruing that act, or what (see this article by Vladeck and Vasquez), but I think at this point we’re entitled to wonder, if the Court is going to abolish the 20th century remedies for unconstitutional conduct, can we at least have the 19th century remedies back?

Normally the Court lacks the ability to take a big-picture view in these cases, since it has only the issue before it. But in Hernandez, the petitioner foresaw this problem and petitioned the Supreme Court to consider a second question — if there is no Bivens liability, then, he asked:

whether the Westfall Act violates the Due Process Clause of the Fifth Amendment insofar as it preempts state-law tort suits for damages against rogue federal law enforcement officers acting within the scope of their employment for which there is no alternative legal remedy.

So Hernandez is the rare case in which the Court could have considered both questions at the same time and thus provided an account for what violations of constitutional violations remain. It does seem perverse to think that Congress can eliminate state law damages for constitutional violations without either Congress or the courts providing an alternative . It’s possible that this seemingly perverse result is constitutional, especially if one takes a broad view of federal power, but it seems troubling for the Court to repeatedly narrow Bivens without at least considering that question.

Should Police Be Immune from Liability for Grenading* a House?

The Supreme Court has received quite a few cert. petitions lately asking them to reconsider aspects of the doctrine of qualified immunity, which prevents executive officials from being held liable for some unconstitutional behavior. In one of them, a group of a dozen law professors (including me) filed an amicus brief on Friday urging the Court to take up the issue.

Our brief is signed by me, Karen Blum, Erwin Chemerinsky, Alan Chen, Barry Friedman, Robert Leider, Sheldon Nahmod, Jim Pfander, John Preis, David Rudovsky, Joanna Schwartz, and Fred Smith — a group of scholars from across the ideological and methodological spectrum. And while there are a variety of alternatives to the doctrine, and a variety of historical and policy arguments against it (my own prior article is here) we suggest that there is a growing academic consensus that something should be done about it.

Here is the introduction:

Protecting Americans against abuses of government power was a critical concern of the Founding generation—reflected in the Bill of Rights. In the aftermath of the Civil War, and the adoption of additional constitutional amendments, Congress enacted 42 U.S.C. § 1983 to provide a remedy to vindicate those constitutional protections.

Nearly a century later, this Court recognized a qualified immunity defense to Section 1983 damages claims, holding that Congress’s creation of the cause of action should be construed to incorporate the good-faith defense that, the Court stated, was then available to government officials at common law. See Pierson v. Ray, 386 U.S. 547, 557 (1967).

Subsequently, in Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court “replac[ed] the inquiry into subjective malice so frequently required at common law with an objective inquiry into the legal reasonableness of the official action.” Anderson v. Creighton, 483 U.S. 635, 645 (1987). Harlow held government officials immune “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S. at 818.

In the thirty-eight years since Harlow, the Court has provided shifting guidance regarding the “clearly established law” standard. Hope v. Pelzer rejected the lower court’s holding that the plaintiff must identify “cases that are ‘materially similar’” to the case at bar to defeat qualified immunity, instead focusing on whether pre-existing law provided a “fair and clear warning” that the conduct at issue was unlawful, even if arising under “novel factual circumstances.” 536 U.S. 730, 735-736, 741 (2002). More recently, however, the Court held in Ashcroft v. al-Kidd that plaintiffs must identify “existing precedent” that places the legal question “beyond debate” to “every” reasonable officer. 563 U.S. 731, 741 (2011); see also Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam); Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam).

Amici submit that—for multiple reasons—the time has come to reconsider this qualified immunity standard.

Recent scholarship demonstrates that the foundation of the immunity doctrine—the assertion that government officials enjoyed protection from damages liability at common law—is incorrect. No such general immunity existed. Today’s immunity rule compounds that initial error, moreover, because it is far broader than the one the Court (mistakenly) attributed to the common law.

Studies also have determined that the policy justification for the current rule simply is not true. The overwhelming majority of government officials are either indemnified or protected by insurance, and immunity therefore is not required to ensure that they properly perform their duties. And far from reducing litigation costs, the complex procedural labyrinth constructed by immunity doctrine actually increases both the length and cost of Section 1983 lawsuits.

Most importantly, today’s immunity rule has the inevitable real-world effect of diminishing constitutional protections. And in no context is that effect more pronounced, and more directly contrary to the intent of the Constitution’s Framers, than with respect to Fourth Amendment guarantees such as those at issue in this case. 

Many lower courts today dismiss Section 1983 claims on immunity grounds without first determining whether the plaintiff has alleged a violation of his constitutional rights. That significantly hampers development of the law, particularly in cases involving new technologies and new fact patterns. And it means that future constitutional violations will go unremedied for want of a prior precedent declaring the conduct unconstitutional.

Importantly, stare decisis principles do not bar reconsideration of the qualified immunity standard. Although this Court has stated that stare decisis generally has enhanced force with respect to statutory interpretation precedents, it also has held that this rule does not apply where Congress has left it to the courts to “‘give shape to the statute’s broad mandate by drawing on common-law tradition.’” State Oil Co. v. Khan, 522 U.S. 3, 20-21 (1997). The Court’s qualified immunity doctrine rests on just such an exercise of judicial authority.

Finally, scholars have identified a number of alternative immunity rules that would ameliorate the adverse effects of the current standard. And Congress could of course act to address the issue, as it has in the past in response to this Court’s resolution of an immunity issue.

Here is a page about the facts of the case from the Institute for Justice. Or as we put it in the brief:

Indeed, the facts of this case present a particularly striking example of how far qualified immunity has wandered from constitutional principle. A group of government officials deliberating and then deciding to bombard an innocent person’s home with grenades would surely have been answerable to a Founding-era jury. There is neither a historical reason nor a policy justification for that result to be different today.

A response is due in late March, so the Court will likely decide sometime this spring or summer whether to hear the case.

*UPDATE: I’ve been persuaded that the title of this post was too hyperbolic. To be clear, the police used tear-gas canisters, also known as tear-gas grenades, which were fired into the house out of some kind of shotgun. So while they were grenades, I wouldn’t want readers to get a false impression, and perhaps should have written “tear-gassing a house” or “shooting tear gas canisters into a house". Again, you can read more factual detail at the Institute for Justice’s website.

What Makes The San Diego Originalism Conference So Good?

I’m writing this post from San Diego, California, where I’ve just arrived for the Eleventh Annual Originalism Works in Progress Conference. (My co-author Steve Sachs and I will be presenting our work on The Misunderstood Eleventh Amendment, which we’ll be blogging about soon.) I’ve been to this conference for ten straight years and it is the best academic conference I attend, so I’ve been trying to reflect about why. Here are a few factors.

1. Of course it doesn’t hurt that it’s in San Diego in February. But I’ve been to lots of conferences that are just an excuse for a vacation, and this definitely isn’t one. Why?

2. The papers are selected by a competitive submission process, so they tend to be good. And yet it is also restricted to unpublished work, so discussion is still very valuable. This is probably the sweet spot for great academic conferences.

3. There is a core group of regular attendees, who take the intellectual content very seriously.

4. The papers and discussion are united by an intellectual interest in the original meaning of the Constitution (although many of the regular attendees are critics of originalism rather than self-described originalists). This means that the level of discussion tends to be very high. At the same time, very few constitutional law professors have this level of familiarity with both history and interpretive theory, so the conference facilitates a discussion that couldn’t happen anywhere else.

5. In other words, it’s one of the only conferences I’ve been to where we aren’t just asking the same questions all over again. Intellectual progress is made every year.

As I cut back on professional travel, this conference remains one of my highest priorities.

A conversation with Judge Douglas Ginsburg

Judge Douglas Ginsburg, a senior judge on the Court of Appeals for the DC Circuit, is an interesting person. In addition to his judicial duties, he is also a law professor (at NYU until recently, now at Scalia Law at George Mason) and now the host and producer of a PBS Series on the Constitution. The show is a three-episode mini-series called A More or Less Perfect Union, and you can watch it online here.

Last week, I had the good fortune to interview Judge Ginsburg about the program in front of an audience here at the University of Chicago. While our conversation might not be as good as the show itself, it was a lot of fun and you can watch it online here. My favorite part was when an audience member asked the judge what were the worst and best things that had happened with respect to the Constitution in the last 30 years. I liked both his answers, but they may surprise you — especially the worst thing. You can watch that exchange around 1:07:00.

Why Clerkship Plans Have Failed

Will’s proposal to reform the clerkship hiring plan is modest. Not modest in the fun satire sense. Modest in the sense that it would be a small, reasonable fix that would probably make things a little better. But it wouldn’t prevent students from going through years of unnecessary stress trying to figure out how to get a clerkship.

Before trying to identify solutions to current state of the world, it’s worth laying out the problems that lead clerkship plans to unravel. I think there are four of them.

1. Scarcity. The judges perceive that there is a supply side constraint on the kinds of students they want as clerks. For instance, we know there is huge ideological sorting in the clerkship process, and the share of law students that are conservative is smaller than the share of judges that are conservative. So conservative judges feel rushed to hire the “good” students before they all have clerkships.

2. Declining Marginal Value of Grades. Each semester of grades that a student has provides more data points about their intellectual ability. But the marginal value of additional grades decreases over time. Many judges have decided they are willing to gamble that, although they have less information, that they’d get better clerks if they strike early instead of waiting for more data.

3. Judges’ Inability to Bind Themselves. Judges can’t bind themselves to a plan because the judges that deviate face no sanctions from doing so. They don’t lose out on applicants, hiring slots, or anything else they might care about.

4. Clerkship Placement is a Zero Sum Game. Schools are better off if they place more students in clerkships, and they know that any clerkship their students don’t get will go to a student from another school. So they can’t credibly commit to punishing students or judges that fail to comply with any plan.

So how do we fix the clerkship market? Solve any one of these problems. For instance, judges would feel less pressure to jump the gun if we could increase the supply of students they wanted as clerks (or, even less plausibly, if we figure out a way to de-politicalize the legal profession so the judges are equally interested in hiring all good students).

Judges would also be more likely to wait to hire students if we reformed the way we evaluated law students to make our grades more reliable. It’s a mistake that law schools never place the blame for judges not caring about the grades we produce on ourselves. We could certainly do a better job if we were to analyze our process of evaluating students and find ways to improve it. Because, if our methods of sorting students were more reliable, judges and firms would be more willing to wait for that sorting process to play out.

But the best solutions all involve solving problems (3) and (4). We need a way to ensure that there are consequences — imposed at either the demand side (e.g. the judiciary) or the supply side (e.g. law schools) — for violations. Without that, it’s tough to imagine any plan working for very long.

That said, perhaps the demands placed on judges from Will’s proposal would be small enough judges wouldn’t feel the need to deviate.

A Proposal for a New Federal Clerkship Hiring Plan (When The Current One Collapses)

Jack Goldsmith writes on Twitter about the latest iteration of the federal clerkship hiring plan, which was supposed to involve a widespread pact among judges not to hire students until the summer after their 2L year. Many judges did not agree to follow the plan, but among those who did, it seemed like there might be a stable equilibrium.

Not so, Jack argues. When 2Ls apply this summer, he says, they will discover that “many on-plan judges went ahead and filled some (and for some judges all) of the 2021 clerkship slots with other students (3Ls, grads, etc.)” This includes, says Jack, some of the judges who organized the plan in the first place. (Read the whole thread for more.)

If all of this is true, and I trust Jack very much, though I don’t have direct testimony myself, it will make the plan seem quite unfair and it seems unlikely to be sustainable. This would mark a much faster collapse than the last round of the clerkship hiring plan.

On the other hand, some off-plan judges are hiring students as soon as the January and February of their 1L year. And off-plan clerkships generally leak out by word of mouth, with students and professors relying on personal relationships and networks to find out who might be hiring when.

If and when the plan collapses, I have a proposal for a new plan, which I mentioned parenthetically in an old blog post. This new plan would impose a modest restriction on clerkship hiring in order to have a fairer and more efficient competition for these positions.

1. Judges can hire law clerks any time they like, and law clerks can apply any time they like.

2. All judges agree to publicly post, on Oscar or the equivalent, when they are hiring law clerks and how many positions they are trying to fill. They also agree to post when the clerkships are full.

That’s it. You could embellish this plan with some of the other rules like the rule that applicants must get at least 48 hours to decide, or with a rule that the posted positions must be kept open for X days, but I see those as best practices that need not be part of the core plan for it to succeed.

Cartels are hard to organize, and incomplete cartels are destined to fail. That is the lesson of the previous two clerkship plans. And worse, the current clerkship plan has generated a significant loss in transparency, as those who circumvent it feel various pressures to go outside of the usual channels. It may be time to focus on transparency, and forget the strange dream of the cartel.

Other Reasons for Look-See Visits?

Usually when Adam and I blog about the same thing we disagree. But not here. I share Adam’s view that the costs of the semester long visit system exceed its benefits. I also applaud Adam for following the wisdom that one can’t eliminate an institutional as irrational or unjustified without first trying hard to understand why people adopted it. And I agree that one big contributor is the way a law school faculty pools together a lot of different kind of researchers into one voting body.

But here are a few additional hypotheses:

The visit as costly signal. Many law school professors want things — money, time, status — from their home institutions and sometimes they need bargaining power to get it. Getting an offer from a competing school gives them bargaining power, but it can waste the time, energy, and political capital of faculty at the competing school. Making people visit is a way of making sure they are seriously interested and worth spending the time to evaluate them and build a coalition to hire them. Again, I’m not convinced these costs are worth it, especially given how unevenly they are borne. But I hear it as a reason for requiring the visit.

Is there any reason this would be more true in law schools than other academic departments? Maybe. Given the breadth of law schools and even of positions within each field, it seems plausible to me that there would be more fluidity in the lateral market and more opportunities for fake expressions of interest. But I’m just guessing.

We need the teaching. Teaching law students is at the center of a mission of a law school. The set of canonical courses is relatively large. And unlike other departments, law schools can’t or don’t require on non-professor lawyers or on graduate students to cover a lot of these courses. So one way to staff these courses is with visiting faculty from other schools. And yet to induce these faculty to visit, one sometimes must offer them more than just money; one must dangle the possibility of a lateral offer, even if only a rare few visitors get it. I can think of some major law schools that seem to staff their courses in this way.

Do we have objective standards? Finally, I think Adam may be unduly optimistic in imagining that even the constitutional law faculty or the tax faculty at most law schools can agree among themselves about who is doing objectively excellent work in the field. Differences in areas of study and in basic methodology run deep in law, and I’ve known schools where the two faculty experts on a given subject were almost completely unable to agree that any other person was excellent. Maybe the personal factors and collegiality that can be judged on a visit provide a way for people who disagree on methodology to agree on a candidate nonetheless.

I’m not sure how much work each of these hypotheses are doing, if any, but they can help us through the kinds of transparency and institutional culture that may be necessary to improve law school hiring and move away from semester-long visits.

Look-See Visits are About Coalition Building

One month ago, Tess Wilkinson-Ryan wrote an essay explaining the high costs that “look-see” visits place on law professors. (For anyone not familiar, look-see visits are the practice of requiring a professor from another school — e.g. Penn — to visit for a semester — e.g. teach contracts at Stanford for the fall — so the faculty can get a good look at the professor as a colleague before offering them a job.) Tess’s fantastic essay sparked debate across the legal academy — in tweets, blog posts, and, anecdotally, in repeated conversations — about whether it was time to stop requiring visits before making lateral offers.

As many have persuasively argued, the personal costs of visits born by the candidates are extremely high, the information visits provide about how the candidate will be as a colleague is noisy, and insisting on visits likely disproportionately limits the mobility of certain candidates (e.g. women, people will small children, people with limited resources or support networks, etc). For these reasons, I am in favor of eliminating the strong norm of requiring semester long visits.

But changing this norm requires a major shift in the legal academy’s practices. It is thus worth first asking why law schools developed this norm in the firm place. Notably, social science departments and other professional schools largely do not require look see visits. So why do law schools? The answer is that unique features of law schools make them necessary to build coalitions willing to vote for candidates.

Law schools have faculties with a diverse range of educational backgrounds, methodological commitments, and subject matter expertise. A single law school faculty may include moral philosophers, legal historians, applied micro-economists, and even a few lawyers. But unlike business schools or public policy schools, we are not divided into defined “groups”. Although business schools may have economists and phycologists on the faculty, the finance group will decide on the best person to hire to teach finance and the marketing group will decide on the best person to hire teach marketing.

The fact that law faculties don’t operate this way is relevant for two reasons.

First, it is more difficult for us to judge the research record of lateral candidates in different fields. If the constitutional law “group” at a school were asked whether to make a lateral offer to a professor at another school, they could likely form consensus without a long visit being necessary. This is because they can read and understand the candidate’s research and trust their own judgements about its quality.

But many people on a law faculty will be expected to cast a vote on the candidate despite having no way of directly judging the quality of their research. Moreover, they can’t just rely on the candidate’s publication record to tell them anything about the quality of the work. Business school professors can assume that a paper in the Journal of Finance is good because it went through a demanding peer review process, but there is no reason to make a similar assumption about a paper published in a leading student-edited law review.

Second, professors do not always directly benefit from the research done by colleagues that are not in their area. For instance, a tax scholar benefits from having other tax people around to give knowledgable feedback on their research or to expose them to new methods. A constitutional law scholar, however, might not care about those aspects of having a tax scholar as a colleague.

But that doesn’t mean that a constitutional law scholar is indifferent to which tax scholars are their colleagues. They are just looking for different things. Things like whether the tax scholar will go out of their way to offer feedback when they can on constitutional law research, pull their weight in institutional service, be fun to have around for lunches and dinners, and generally be a pleasant presence in the building (or, at very least, not be a jerk).

Both of these problems — difficulty assessing scholarship and looking for qualities beyond research — are ameliorated by visits. Even if I cannot read a constitutional law paper and know if it makes an important contribution, I can get a sense of whether a constitutional law scholar is a smart and curious person after being around them for a while. And even if I don’t care about research on constitutional interpretation, I can figure out if the constitutional scholar will be fun to have at meals. In other words, the visit is needed to build a coalition of people outside the lateral candidates area willing to support them.

So, how law professors be convinced to vote for people outside their area without the visit to win them over? The answer is that we should rethink short visits (whether a few days or a few weeks) to focus on exposing candidates to people outside their field. For instance, schedule a potential lateral candidate in tax to visit on a day they can attend a law and philosophy workshop and participate in the discussion, send the tax scholar to dinner with the criminal law scholars, and in general, focus a lot more on scheduling meals than office interviews.

Finally, beyond trying to recreate these kind of cross-subject interactions, we should also just all learn to trust the judgment of our colleagues with relevant academic expertise more instead of demanding that lateral candidates takes months out of their lives to charm us.

Veto Players and Compliance with International Law

One of the first projects I worked on was a paper with Rachel Brewster investigating when the United States complies with cases it loses at the World Trade Organization. We argued that the United States was likely to comply with adverse decisions when the executive could unilaterally take actions to bring actions American policy into compliance; but that compliance was unlikely to occur when it required coordination with other branches of government.

We built a dataset of the 37 WTO cases the United States had lost, figured out what happened after the loss (which was not as straightforward as I thought it would be), and then tested our argument with some basic regressions. We found evidence consistent with our claim, but it was extremely tough to say much definitive with such a small sample.

Which is why I was excited to see a paper just published in the International Studies Quarterly that looked at the universe of cases filed at the WTO. Lauren Peritz’s new paper is a massive improvement on what we did in essentially every conceivable way. But I was excited to see that the argument we made held up. Here is the abstract of Lauren’s paper:

When do international institutions promote economic cooperation among countries? The World Trade Organization (WTO) is central to the multilateral trade regime and a benchmark for international dispute resolution. Yet it remains unclear whether it has been effective in restoring trade cooperation. This article uses WTO disputes to examine the impact of domestic politics in the defendant country on compliance with adverse legal rulings. I build a novel data set on compliance. Using the method of synthetic case control, I estimate the effect of adverse rulings on trade flows between disputant countries using product level time-series trade data. I infer the defendant complied if trade flows increased after the dispute, relative to estimated levels that would have occurred in the absence of the ruling. The results show domestic political divisions—measured by veto players—hinder compliance.

That said, although Lauren’s paper is now the definitive work on the topic, my paper on WTO compliance will always be particularly important to me. Rachel asked if I would be interested in collaborating on research while I was still a law student, which then set off a chain of events that directly led me to land at Chicago. Short version: Rachel was a former Bigelow fellow, and after we worked together, she implored her former Chicago colleagues to interview me for the Bigelow while I was still on the fence about applying for fellowships. So I’m glad the idea we worked on together holds up with dramatically better data (also, thanks again Rachel!).

Race and the Criminal Justice System

The empirical evidence that race influences outcomes in the criminal justice system is overwhelming. Study after study finds evidence that people’s race changes the way they are treated by police, prosecutors, judges, and juries. Most researchers in this area are not only no longer shocked by clear evidence that people are treated differently because of their race—they are instead bored because there is already so much evidence on the subject.

The huge amount of scholarship on race and criminal justice also makes it difficult to find new novel ways to research it. But I just came across a new approach: leveraging the fact that police officers are dispatched to automobile crashes independently of the drivers race to explore the role of race on traffic citations. Here’s the abstract of the paper Jeremy Smith—an economics professor at UC Santa Cruz—wrote using this research design:

Nonrandom selection into police encounters typically complicates evaluations of law enforcement discrimination. This study overcomes selection concerns by examining automobile crash investigations, for which officer dispatch is demonstrably independent of drivers’ race. I find State Police officers issue significantly more traffic citations to drivers whose race differs from their own. This bias is evident for both moving and nonmoving violations, the latter indicating a preference for discriminatory leniency towards same-race individuals. I show this treatment is unmitigated by socioeconomic factors: officers cite other-race drivers more frequently regardless of their age, gender, vehicle value, or characteristics of the local community.

H/T to my colleague Austin Wright’s twitter feed for tipping me off to this paper.

Diversity and Law Reviews

Earlier this month, the Financial Times reported a depressing piece of news about diversity in the legal profession: less than 20 percent of equity partners at major law firms are women. But last week, there was some good news about gender diversity in the law: the editor-in-chiefs of the top 16 law reviews are currently all women.

This kind of development happens because there are countless amazing women attending law school, but it likely also happens because most law reviews have adopted a range of informal and formal policies to increase the gender and racial diversity of their members. In that last two years, however, some of these diversity policies have been challenged in court. Among other things, the lawsuits have claimed that diversity policies decrease the quality of the scholarship that the law reviews publish.

This claim has no empirical support. Jonathan Masur, Kyle Rozema, and I decided to actually study whether the adoption of law review diversity policies changes the rate at which law review articles are cited (which, although flawed, is the standard measure of research quality in academia). We pre-committed ourself to a research design before seeing all the data, used a range of statistical techniques, and we didn’t find any evidence that the adoption of diversity policies produces a drop off in article quality.

So the news that the leading law reviews are now led by women makes me hopefully that the legal profession can make progress increasing diversity overall, and it does not make me remotely worried that we’ll have to sacrifice quality to do so.

Things We Liked This Week

1. Frank Easterbrook’s opinion in Jorge Baez-Sanchez v. Barr calling out the Board of Immigration Appeals — part of the Department of Justice — for thinking it can ignore the judgment of a federal court (“The Board seemed to think that we had issued an advisory opinion, and that faced with a conflict between our views and those of the Attorney General it should follow the later. Yet it should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government.”).

2. Recent public debate by economists on the role of caste in India’s economics growth. Check out Arpit Gupta’s twitter thread and Tyler Cowen’s podcast with Abhijit Banerjee that discusses the topic.

3. This interview with our colleague Geof Stone on free speech at Chicago — in the National Review. (“This university is a famously — you might even say notoriously — serious place. Yet Stone is well aware of conditions elsewhere.”)

4. The Reconstruction Amendments: Essential Documents, Volumes One and Two. Edited by Kurt Lash, forthcoming from the University of Chicago Press, and now available for pre-order. Potentially a game-changer for teaching constitutional history.

Life in a Bangalore Slum

Ashrayanagar (or “the place of shelter” when roughly translated from Kannada). A slum in the Peenya Industrial Area of northern Bengaluru.

For the last several years, Anup Malani and I have been conducting ethnographic research in Indian slums. We hired a team of researchers, developed field sites in slums in cities across India, conducted interviews, spent time in the communities, and tried to understand how they work.

We set a goal for the project that, in addition to producing academic research, we would try to raise awareness about the how policy choices made by local, state, and federal government impact some of India’s most vulnerable citizens. I’ll be writing a lot more about those efforts in the new few months, but we just published a photo essay about one of our field sites as part of that process.*

The photo essay describes life in a community in Bangalore called Ashrayangar. Like many slums, the community emerged, in part, because local political leaders were eager for labor and the votes. But almost 20 years later, life in the slum is still defined by constant political contestation between community leaders and government officials over everything from getting clean water to avoiding demolition.

We’re profiling the community in depth in a documentary that we’ll be putting out later this year, but for now, go check out our photo essay to learn more.

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* The photo essay is a collaboration with two of our team members: Lakshmee Sharma and Shafali Sharma. I want to extend my sincere thanks to Lakshmee and Shafali for making this photo essay happen, and to Lakshmee for spending much of the last two years immersing herself in Ashrayanagar.

Precedent and Discretion

This blog has been quiet, at least for my part, because some of my core job duties like grading and article-writing had to take precedence over blogging. But with some deadlines behind me, I now have time to share a short paper for the Supreme Court Review I recently posted on SSRN.

The paper is called Precedent and Discretion, and addresses some emerging theories of precedent on the Supreme Court. Here’s the abstract:

Supreme Court precedent is a topic of perennial prominence. The Court overruled or severely limited multiple precedents last year, just as it did the year before that. Because of our widely-repeated norm of stare decisis, every overruling is criticized. Scholars have then debated whether the Court needs a stronger norm of stare decisis, so that it overrules fewer cases.

This focus is misguided. Rather than worrying about which cases will be cast aside, we should pay more attention to those precedents that are left standing in place. Many of the Court’s questionable precedents nonetheless go unquestioned. The real problem is not that the Court overrules too much, but that it overrules without a theory that explains why it overrules so little.

At last, it seems such theories may be coming. Last term, Justice Thomas (in Gamble v United States) and Justice Alito (in Gundy v United States) each attempted to explain some of their decisions to reject and adhere to precedent. These explanations deserve serious scholarly scrutiny, which they have not yet received.

Unfortunately, these interventions do not solve, and indeed they exacerbate, the problem. What they propose is neither a regime of adherence to precedent, nor a regime without precedent, but rather a regime in which individual Justices have substantial discretion whether to adhere to precedent or not. This turns precedent from a tool to constrain discretion into a tool to expand discretion, and ultimately into a tool to evade more fundamental legal principles.

Part I describes the state of stare decisis in the Court today. Part II discusses Justice Thomas’s theory that precedent must be overruled when it is “demonstrably erroneous.” Part III describes Justice Alito’s theory that precedents ought not be overruled on the basis of “halfway originalism.” Part IV explains why discretionary precedent—of which these theories are examples—are worse than no precedent at all.

Things We Liked This Week

1. This new paper by Julian Mortensen and Nick Bagley purporting to refute the non-delegation doctrine, and this response by Ilan Wurman.

2. The resignation of the President of the Romance Writers of America. (It’s a long story, but you can try to get caught up with this story or by scrolling Courtney Milan’s Twitter feed.)

3. The new LaMP Blog. LaMP is new organization started by leading migration experts dedicated to the idea that “labor mobility that allows workers from poorer countries to access job opportunities in rich countries has the potential of creating billions in income gains to workers, sending countries and receiving countries.” The blog’s first post by Lant Pritchett details the truly alarming trend of dramatically increasing retirement age populations relative to working age populations in all the world’s advanced economies. The ratios are already unprecedented, and are going to get much worse.

4. This essay by Tess Wilkinson-Ryan on “visits” in law school hiring. (We might have more on this later.)