A Frolic of Her Own

A question of interpretation

The blogosphere has been engaged in a lively - well, it can't really be called a "debate" when 95% of the commentators come out on one side, but whatever -  about Standard 211, a proposed new rule by the ABA that would require schools to provide "full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities" and to adopt the goal of "having a student body that is diverse with respect to gender, race and ethnicity." Standard 211 would further mandate that "[c]onsistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action a commitment to having a faculty and staff that are diverse with respect to gender, race and ethnicity."

Even arch-libertarian David Bernstein calls these provisions "innocuous," noting that law schools can differ over what constitutes "sound educational policy."  The real source of controversy is a binding interpretation of the standard that the ABA also proposes to adopt:

Interpretation 211-1: The requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school's non-compliance with Standard 211.

Before I say anything else, I should mention that I'm inclined to agree with many of the substantive criticisms of Standard 211, both because of the practical problems many schools face in compliance and because mandating "diversity" as a goal seems a fairly intrusive limit on academic freedom, one that, as David Bernstein notes, seems in tension with the result in Grutter.  (That is, Grutter allows academic institutions to use race-based affirmative action in pursuit of diversity only if their educational mission so requires.)

I am, however, puzzled by the near-universal reading of Interpretation 211-1, even by the standard's few defenders, as a requirement that law schools must violate state laws that ban the consideration of race in admissions or employment decisions.  First of all, Standard 211 does not itself require the use of racial preferences in admissions or employment.  Such preferences might be the most obvious ways of achieving the goal of a diverse faculty and student body, but they are certainly not the only way; the University of California has managed to achieve a fair degree of racial diversity in the wake of Proposition 209.  Law schools can obviously step up recruitment efforts, give targeted scholarships if state law permits, emphasize subjects of interest to underrepresented groups in the law school curriculum, and so on.  One can argue that such efforts are likely to be burdensome or pointless, but it seems hard to argue that a school that pursues them vigorously will be out of compliance with Standard 211. 

Moreover, I see no way in which Interpretation 211-1 changes this conclusion.  Yes, the language ("purports to prohibit") is a little snide, but 211-1 doesn't force law schools to do anything other than what the standard already requires; it simply cautions them that state law banning racial preferences is not an excuse for noncompliance.  But since nothing in Standard 211 requires law schools to use racial preferences, it is possible for law schools to comply with the standard without violating state law.  Thus, the Interpretation seems simply to be emphasizing that law schools subject to Prop. 209-ish laws are not exempt from compliance with the standard, even where state law prohibits the most obvious means of compliance.

I should add that, even under this reading, Interpretation 211-1 seems rather unfair.  Public universities in California have a difficult enough time attempting to achieve diversity in conformance with state law without getting added grief from the ABA.  And one may be suspicious about the ABA's intentions; perhaps, in practice, under-the-table racial preferences will be the only way that public law schools in California and Texas will be able to satisfy the standard.  But the standard and interpretation do not require such a result, and it seems pointlessly inflammatory to pretend that they do.

   

Checking back in

I haven't posted in an appallingly long time, but I have kind of a good excuse: a hefty portion of my non-billable hours have been devoted to finishing my first post-law-school article, which I now am ready to send off.

Meanwhile, a couple of interesting new blogs have sprung up with a law + culture focus similar to mine.

Remnants of the old Salon

One side effect of Salon's incredibly rapid decline is that Andrew O'Hehir has gone from a second-string movie reviewer whose name I barely registered to one of the few reasons to continue reading Salon.  These two articles - the second of which concerns one of my favorite subjects, the legacy of Reconstruction - have reminded me again that he's a talented writer.  As for the rest of Salon, it's become a time-wasting black hole that I'm afraid to visit for fear I'll be sucked into reading stupid flame wars about, say, whether someone's desire to get an MFA must be respected at all costs.  (As a possessor of the world's most fun-but-useless degree, my own semi-informed opinion on this one: no.)

Web speech abroad

The Ninth Circuit at long last has issued its en banc opinion in the case of Yahoo Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, an event that has caused surprisingly little comment in the blogosphere given the case's long-recognized significance for several different fields: personal jurisdiction, Internet law, First Amendment law, and conflicts of law.  Perhaps it's just that the en banc decision seems a bit anticlimactic after what preceded it: two long and thoughtful district court opinions, followed by a fiery reversal (and fiery dissent) by the original Ninth Circuit panel.  Nevertheless, I expect the Ninth Circuit opinion to be the end of the line for this issue.  Yahoo! is possibly the most crazily splintered circuit court opinions I've ever seen (and it certainly doesn't break down on liberal/conservative lines!), and I can't imagine the Supreme Court wanting to take this one on.  Further, for all the juicy issues involved, the Ninth Circuit (or at least the three-judge controlling opinion) chose to decide this one on the most modest prudential grounds imaginable.  But the issue of how First Amendment values can and should be preserved when U.S.-based websites try to establish a presence in countries with more restrictive speech policies remains a potent one.  Some related policy issues - although without the First Amendment angle - have already arisen with respect to the activities of U.S. ISPs and content providers in China.

Good legal writing

Green Bag is engaged in a commendable project of finding the best legal writing in a variety of categories - judicial opinions, law review articles, books, and so on.  What is surprising to me is how many of the nominated works I've read and whose inclusion I agree with.  At any rate, I think all the included Kozinski opinions are worth reading for sheer entertainment value (I sometimes find Kozinski's writing style to be a little precious, but the guy was really on a roll last year), as is Lingle v. Chevron U.S.A., a surprisingly lucid and forcefully argued opinion by Sandra Day O'Connor.

Alito, Day One: Baseball

John Roberts's comparison of the roles of judge and umpire may have been, as Jim Lindgren pointed out, rather unilluminating as a description of Roberts's actual philosophy of judging.  The analogy did, however, apparently capture the imagination of the Judiciary Committee, as it was mentioned by nearly every senator I heard speak on the interminable drive into work this morning.

Liberal blawgs?

Daniel Solove's observation that more conservative than liberal bloggers link to Concurring Opinions (a group blog composed of mostly moderate liberals) has set off an unusually acrimonious discussion.  Let me suggest that the reaon liberal law blogs don't link to Concurring Opinions isn't that liberals are intolerant of dissent or don't care about ideas.  In fact, the issue is simpler: there just aren't that many liberal law blogs to begin with.  A quick scan of Concurring Opinions's own census of blogging law professors reveals that the #1 and #4 law schools for prof-bloggers are, respectively, Chicago and George Mason.  Ave Maria has almost as many bloggers as Yale.  (I recognize, of course, that not everyone at Chicago or even Ave Maria is necessarily a right-wing conservative, but many of these bloggers do seem to be right-leaning.)

Of course, this all leads back to another question: why are there more conservative law bloggers than liberals?  Part of it, I would guess, is that - sorry, David Horowitz - law schools just aren't that liberal.  Sure, large majorities of most law faculties may identify themselves as Democrats.  I continue to believe, however, that law remains a basically conservative profession.  True, hard-core constitution-in-exile types may not find legal academia a completely hospitable environment, but that doesn't mean that the decorous moderate-liberals who overwhelmingly populate law faculties would look any more kindly on someone equally far to the left.  Law and law schools are always going to be grooming people to enter the power structure (yes, there was once a notion that law could be used a tool of radical activism, but try finding a currently respected professor who believes such a thing).  These days, that power structure is conservative. 

There are a number of blogs written from a liberal point of view that engage in policy debates and toss around ideas in much the same manner as the Volokh Conspiracy.  (To name just a few I've recently started reading: majikthise, Legal Fiction (which, despite its title, is not really a blawg), and Mark Kleiman.)  These blogs just don't happen to be written by law professors.  I would nonetheless advise those conservatives who claim to be interested in reading liberal blogs with substantive intellectual content to check them out.

Year-end movies

Over the long weekend I saw both Munich and Brokeback Mountain, both of which were pretty well-acted and absorbing, though I've become so hyper-attuned to Steven Spielberg's penchant for gloppy sentimentality that even a small dollop of it does a lot to kill my enjoyment of a movie.  Neither film, however, has shaken my belief that 1) it is a rare, rare movie that can justify a running time of more than two hours; 2) perhaps film directors and Supreme Court justices should all be required to attend some kind of short-is-beautiful seminar.

The evils of blogfare

Has anyone ever noticed that, for someone who blames welfare for everything from terrorism to chad to why black women won't date him, Mickey Kaus does not really have the world's most demanding job?  Take, for example, last Friday, December 16 - a day when some of us working stiffs were scurrying around defending corporate America's right not to produce documents, while valiantly spending our few spare hours working on a law review article and, um, attending to other responsibilities.  Now consider, by contrast, the Kaus-man's activities last Friday. I picture him getting up sometime around noon, going outside in his pajamas to get the mail, noting the presence of a holiday card from a mildly embarrassing Democrat, and thinking, "That's it! That's my 32-word blog entry for the day!" - leaving him the whole weekend to get back to whatever it is middle-aged would-be roués do in the copious hours when they're not blogging.

Of course, plenty of bloggers who have day jobs (and, no, test-driving cars doesn't count) regularly write as much in a day as Kaus does in a week. But let's not judge Kaus's work ethic solely by the crude measure of output!  There's also the fact that, when it comes to story ideas, the Kausinator never has to look very far afield.  If the day's mail or the contents of his own brain don't suffice to fill some column inches, then there's always astute political analysis to be found on the Golfchannel.com message boards.  And why even bother to gather facts when it's always safe - and easy! - to assume that everyone in America shares your prejudices? Of course, when all else fails, you can always turn to the staple activity of those who've been infected by a culture of dependency - rail against the people who've cut off your free handouts!

It's clear that some toughness is called for, before Mickey starts slacking on exercise, going overboard on the booze, and suffering the other pernicious effects of a something-for-nothing existence.  Perhaps Slate could announce that, if Mickey fails to produce a new book within, oh, eighteen months, he'll have to find a real job?  Or maybe a market-based approach might work - Slate could, say, pay people to write blogs only if people will pay to read them.  Come to think of it, didn't Times Select already try something like that?

The lion and the witch, as such

Generally, I find myself on the liberal, "language evolves" side of grammar and usage controversies, but ever since my first week of law school I've found myself irritated by the constant use of the phrase "as such" to mean something on the order of "therefore" or "as a result."  Not only is this usage officially wrong (though for a qualified defense, see here), but - among lawyers, anyway - it's a cliché, and a somewhat pretentious one.  That is, people seem to reach for "as such" rather than the more pedestrian "therefore" when they want to add a note of lawyerly pomposity to whatever they're writing.  As a result, I tend to associate the phrase with the dense, self-important prose and various other ills of bad legal writing.

At any rate, the phrase is ubiquitous enough as it is, so I was rather dismayed to hear the hated usage of "as such" in The Lion, the Witch, and the Wardrobe last weekend, uttered by none other than the thoroughly conservative and proper Mrs. MacReady.  (I am sure this is the screenwriter's doing, not C.S. Lewis's; lipstick-hating prude Lewis may have been, but I doubt he ever used "as such" in any sense other than its traditional one.)  Since lawyers are sort of the Mrs. MacReadys in the Narnia of life, I can't imagine this will do anything to stem the "as such" tide in briefs and law review articles.