The O'Reilly Theater at Keble College, Oxford recently played host to a new show: John Rawls's A Theory of Justice: The Musical! It was billed as "an all-singing, all-dancing romp through 2,500 years of political philosophy."
In order to draw inspiration for his magnum opus, John Rawls travels
back through time to converse (in song) with a colourful cast of
political philosophers, including Plato, Locke, Rousseau and Mill. But
the journey is not as smooth as he hoped: for as he pursues his love
interest, the beautiful student Fairness, through history, he must
escape the evil designs of his libertarian arch-nemesis, Robert Nozick,
and the objectivist seductress, Ayn Rand. Will Rawls achieve his goal of
defining Justice as Fairness?
The world’s first feature-length musical about political philosophy
showcases a script steeped in drama, humour and romance - with a musical
score that covers everything from rap battles to power ballads.
Based on the ground-breaking philosophical book "A Theory of Justice"
(1971), this exciting new musical was met with critical acclaim when it
opened in Oxford in 2013. Philosopher Nigel Warburton called it
"brilliant: hilarious witty and profound... I cried with laughter for
most of two hours!"
A crisp student review of the show is here in Philosophy Now. There are apparently plans to bring the show to the U.S., but those who don't want to wait can download the full production for $9.99 here.
Anyone working on Habermas: The Musical? Sunstein: The Musical?
He strikes us as a "good guy" if there ever was one -- and just think how much more prepared he would have been to rescue the women from the "bad guy" captors if he'd had a gun! -- but now it turns out that in another facet of his life he's not unambiguously a "good guy," and in fact has been a violent "not-good-guy" in situations where guns often prove tragically lethal.
Enough of the good guy/bad guy trope in the gun rights debate. It's just dumb. Good guys are bad guys and bad guys are good guys. All of us.
Right now I want to focus on something else -- the publisher of Stoddard's book. I've been wondering why Charles Scribner's published eugenics literature (in addition to Stoddard, they published Madison Grant's The Passing of the Great Race). Perhaps they were publishing whatever they thought would sell? Maybe there's something deeper here.
But then I realized that Gatsby was also published by Scribner's! So now I'm wondering if the reference to Stoddard's book (which Tom incorrectly referred to as written by Goddard, who was another of the writers on eugenics -- though his work was published by MacMillan) was really a product placement in the novel? That is, was Fitzgerald writing an advertisement for his press' book into the novel? I was talking with one of my students, Thomas Thurman, about this -- and he said, quite astutely, if Fiztgerald was serious about a product placement he would have given the author's correct name and the full title of the book. Thomas might have added that he wouldn't have made Tom look like such a fool, too. Though maybe this was Fitzgerald's effort to subtly influence readers?
Update: I see that the Financial Timeshas the rundown on how the movie's pushing clothes and jewelry. No word yet on whether The Rising Tide of Color appears in the movie.
Update 2: Holy Cow! Later on in the novel, it turns out that Gatsby has the Stoddard Lectures, a series of books on travel by Lothrop Stoddard's father, John Stoddard. (Never read, of course, because the pages were never cut.) And guess what? John Stoddard taught at Boston Latin School and you know what Lothrop's profession was? Legal historian. This deserves some more commentary down the road.
Current scholarship by legal commentators and political scientists recognizes that the weapons of American empire have involved non-militaristic activities as much as militaristic ones. Such non-militaristic activities include the hegemonic influence of trade agreements, the imposition of legal and procedural norms, and the dissemination of ideological and cultural predispositions through corporations and diverse medias. In this paper, we examine an under-explored area on the “soft” belly of the American leviathan, focusing specifically on how property and intellectual property law have operated on physical and ideological frontiers to comprehend, participate in, and legitimate the expansion of American empire. We offer new accounts of two historical instances of empire-building: the acquisition and seizure of property from Native Americans in the early- and mid-19th century, and the expropriation of intellectual property rights to plant genetic resources from indigenous communities in the global South in the late 20th century. These two stories, taken together, offer unique insights into both the process and the substance of law’s operation on the frontier of empire. They illuminate how the authority of law has fused with private power and legal legitimacy to enable the nation to expand swiftly, energetically, and powerfully. These insights, in turn, lead toward the more general conclusion that the rhetoric of property has functioned to subjugate peoples and places, cultures and natures, to an imperial regime.
This is an exciting and obviously wide-ranging article, which a lot of property professors will enjoy reading -- it fits well with Jed Purdy's article from a while back that focused on Johnson v. M'Intosh and the law of imperialism.
And because it's going to be in the Hawaii Law Review, this reminds me that when missionaries went to Hawaii in the 1820s they brought with them the market and property rights. The missionaries were bringing western property law to Hawaii in the era when the Supreme Court was issuing Johnson v. M'Intosh (and the parallel opinion in The Antelope). Property law served as a tool of empire in Hawaii, just as did law generally. Law, like the transatlantic ship, the printing press, and the gun, worked as a technology to expand the power and reach of the empire.
I think we need to be careful, however, in reading too much into these projections. I have two specific concerns about the numbers. Before I get to them, I want to note that the BLS is a remarkably user-friendly government agency. Fearing a huge, impenetrable bureaucracy, I asked a research assistant to try to find me someone to talk with about the projections. She came back ten minutes later saying that I could just call and they would connect me to the right department. When I did call, a human being picked up the phone, and connected me to Michael Wolf, the Branch Chief of the National Employment Matrix, who was happy to talk to me about the statistics. It was incredibly nice to not have to find my way through an automated phone maze to find someone to talk to.
Mr. Wolf explained to me that the job statistics are based on two surveys. The first is the Occupational Employment Statistics survey. This survey goes to employers throughout the economy (including government employers). The responses are typically filled out by Human Resources people at each employer. The second is the Current Population Survey, which is designed to help catch people who are self-employed. For our purposes, the Current Population Survey should capture solo practitioners. The data from these surveys are combined to form the base year data on employment – that is, a picture of employment in the current year. Projections of future employment are then based on macroeconomic factors, tailored to each specific industry. Estimates of job openings factor in both expected new jobs and expected retirements.
From our friends at Wake Forest comes this announcement:
Wake Forest University School of Law welcomes
applications for a Visiting Assistant Professor (VAP) to teach Civil Procedure
in the 2013-2014 academic year, and perhaps beyond.Additional information is here.
The man who built Gatsby's house was rumored to have offered to pay the taxes of the surrounding houses for five years if they would thatch their roofs. That would have made their property look like peasant cottages and his house, by comparison, like a manor house. The neighbors did not take him up on the offer, for “Americans, while willing, even eager, to be serfs, have always been obstinate about being peasantry.” And so, while we are deprived of an example of such a servitude, because of the independence of the neighbors, I wonder whether such a servitude would run with the land? There are affirmative promises going both ways: the neighbors agree to thatch their roofs and the owner of the “manor house” agrees to pay the taxes.
Now let's try a somewhat more outrageous example. Suppose Gatsby's predecessor did not want the continuing burden of paying taxes, so he offers to sell the property at a reduced rate up front and in return extracts a promise (an affirmative covenant) that whenever people appear on the property outside of the house they will wear peasant clothes. Does that affirmative covenant touch and concern the land? To make it look even more like a feudal incident, suppose they must appear on the first day of June and pay homage to the owner of the manor house? Such servitudes certainly affect people in their use of the property, but perhaps they provide an insufficient current benefit to landholders for us to say that the servitude touches and concerns the land.
Never can tell where you're going to hear talk about the anti-feudal impulse in American property law, can you? And on that Stacey Gahagan and I hope to say something more soon. And when I have some more time I want to talk about another feature of Gatsby -- Tom's inept reference to Lothrop Stoddard's The Rising Tide of Color, which is a book I've been reading of late for a paper that Elizabeth Troutman and I are writing on the eugenics movement in North Carolina. Pretty scary stuff in that book.
Meanwhile, I guess Gatsby is just further evidence that if you wait long enough scholarship will come into fashion. I'm just waiting for a movie about the Tulsa race riot of 1921, which I'm sure is coming one of these years.
District of Columbia v. Heller was a landmark, if controversial, opinion. Discussion has centered on the merits of its self-described originalist approach. Supporters praise its efforts to return to a more originalist and textualist approach to constitutional questions, whereas critics challenge the accuracy of Heller’s historical claims and criticize its departure from precedent.
This paper challenges much of the conventional wisdom about Heller, its use of originalism, and its relationship to nineteenth and twentieth century case law. This article argues that, despite much of its rhetoric, Heller actually exemplified popular constitutionalism — not originalism — in the way it approached the most important practical question at issue in the case: determining the content of the right to bear arms. On that question, Heller — and not Miller — is largely consistent with the way, throughout most of American history, that both state and federal courts have adjudicated cases involving the right to bear arms. In particular, this article argues that the dominant approach followed by nineteenth-century courts was neither “originalist” nor “textualist” about the right to bear arms. These courts did not look to how James Madison viewed the right in 1789 or how Americans in 1791 commonly understood the Second Amendment. Instead, they attempted to find compromise positions on the scope of the right to bear arms to accommodate a population divided between those believing in the right and those seeking stronger restrictions on weapons. To do this, the nineteenth-century courts shifted their understanding of the purpose of the right to bear arms over time, which, in turn, enabled them to reach conclusions about the content of the right that reflected the contemporary popular understanding of the right — and of the right’s limits. In this revisionist account, Miller is the case that represented a break with the courts’ historical approach because it arguably allowed access to common military weapons — an approach that did not readily allow courts to adjust the Second Amendment right to new circumstances as these military weapons became increasingly destructive. These difficulties prompted subsequent courts to adopt the “collective rights” interpretation of Miller — an interpretation that was too rigidly restrictive, and therefore, also difficult to adjust to reflect popular understandings. The paper concludes that Heller reflects a new compromise: expanding the individual self-defense rationale while diminishing the Second Amendment’s military objectives. This new compromise recognizes an individual right to have self-defense weapons, while allowing greater control over military-style weapons — which aligns with how mainstream Americans today view the right. Although Heller radically reshaped the Second Amendment right to fit the twenty-first century popular understanding of the right, its methodological approach is quite consistent with how most courts have approached Second Amendment questions — an approach that sounds more in popular constitutionalism than originalism.
It has been an extraordinary year here at Saint Louis
University. As has been widely reported
by now, SLU’s president, Father Lawrence Biondi, announced his intention to
resign Saturday evening, in a surprise announcement at a gala celebrating his
25th anniversary as president of SLU. In a park across from the arena where this
gala was taking place, an ‘Alternative Gala’ was organized by critics of the
university president. Spirits were high
at this Alternative Gala, but nobody there knew the results of a university
Board of Trustees meeting that had taken place earlier that day, where Father
Biondi’s fate was a central topic of discussion after nearly a year of numerous
votes of ‘no confidence’—by both faculty and student governance bodies—against
Father Biondi. The body count had
already been high this year at SLU—one law school dean, the university’s
(chief) vice-president, the chair of this Jesuit university’s theology
department, another law school dean, the chair of the university’s Board of
Trustees—and everyone was waiting to see if the president himself would join
the ranks of the university’s disappeared.
Everyone would soon find out that, indeed, Biondi himself would soon be
In this last post of mine before I sign off from my guest stint
at the Faculty Lounge, I want to discuss what we might beneficially take from this
past year at SLU. I have observed the
events of this past year both as a member of SLU (I’m in my fifth year here,
and I just earned tenure) and as a comparative legal scholar. For a number of reasons, Saint Louis has
always reminded me of another place where I have spent much time, namely
Islamabad (Pakistan). And SLU’s
governance structure, as well as its upheaval this weekend, has reminded me of
General Pervez Musharraf’s regime—and its demise—in Pakistan.
At both SLU and Pakistan, I have seen democratically-inclined
individuals view their situation as hopeless.
At SLU, the word on the street (and in faculty meetings around the
university) was that Biondi had long-since ‘captured’ the university’s Board of
Trustees with his supporters and business partners; resistance was futile and
professional and financial ruin would be visited upon anyone disagreeing with
Biondi. Famously as well, Biondi had
taken on the Pope—successfully—in 1997, in an intra-Catholic dispute over the
sale of SLU’s hospital to the Tenet group of hospitals. In Pakistan, a common thought during the
Musharraf regime was that Musharraf had deftly courted (and cornered) the
United States, which was showering Pakistan with billions and billions of
dollars in exchange for cooperating with the U.S.’s agenda in Afghanistan;
again, the thought was that challenging the regime was futile and suicidal.
Another piece of the current conventional wisdom is the argument, generally associated (at least in US law circles) with Bill Henderson, that the legal job market is undergoing profound structural change. My reaction to this argument has taken an interesting trajectory. I was initially deeply skeptical of the argument. The more I thought about it, the more I started to think that there was something to the structural change idea. My current thinking is that some structural change is occurring in the legal job market, but that this change has been gradually occurring for many years. I therefore think that this structural change is something that legal educators should think deeply about, and I agree with some of what Professor Henderson has to say about the subject. I am skeptical, however, that the structural change has much, if anything, to do with the current state of the legal job market. I am also a bit skeptical of how deeply the structural change will penetrate into law practice. Professor Henderson has written a lot on this subject that deserves a more thorough analysis than I can give it in this post. For now, I want to focus on these last two points – whether structural change is responsible for the current state of the job market, and how deeply structural change will impact law practice.
The structural change argument has a few components to it, but for me the most interesting part of it is the claim that technology, specialization, and process engineering are making legal work increasingly standardized and systematized. Professor Henderson, discussing the work of Richard Susskind, writes that “Susskind asserts that legal work is gradually migrating from bespoke (e.g., court room practice), to standardized (e.g., form documents for a merger), to systematized (e.g., a document-assembly system for estate planning), to packaged (e.g., a turn-key regulatory compliance program), to commoditized (e.g., any IT based legal product that is undifferentiated in a market with many competitors).” (Blueprint for Change, at 479). As legal practice becomes more routine and commoditized, compensation for lawyers will come under pressure. The structure of legal services will change as well, with lawyers (or, more broadly, legal service providers) working for specialized firms that look more like service providers in other industries than contemporary law firms.
Although I think it has limits, I think it is true that at least some change of this kind is occurring in the legal industry. I do not think, however, that it is particularly new. One example of this kind of change discussed by Professor Henderson is the rise of firms that provide contract attorneys for discovery work. My first big assignment as a law firm associate in 1997 was to supervise a major document review and coding projects (ah, the glories of Biglaw!). At one point, I had 60 contract attorneys working for me. We were using technology to make the review process more efficient. This technology has improved over time, but technological change has also created a dramatic increase in document review work. Even in 1997, the increased use of e-mail was creating many more documents for review than had been created in the past when written communication was exclusively on paper. In the document review world, technological change has probably created more work in the last 20 years (by exponentially increasing the number of documents to be reviewed) than it has eliminated (by automating parts of the process). It is also worth noting that while certain aspects of document review can be performed by trained monkeys (and thus can be automated), other parts require the work of human beings exercising judgment. More importantly to the subject of this particular post, I don’t see change in the document review world in the last few years that is different in kind than change that had occurred in the prior 15, making it unlikely that any changes in this area are the cause of the present relatively poor job market.
Professor David Herring, from the University of Pittsburgh, has been named the new dean of the University of New Mexico law school. Herring, who served as dean of Pitt from 1998 to 2005, holds a JD from Michigan. As an interesting side note, Herring was a Bigelow Fellow was back in 1986-7. I wonder how many other former fellows have become deans.
Saint Louis University President Rev. Lawrence Biondi announced, yesterday, that he will be retiring as President. After all the tumult at SLU, plenty of law professors (among many others) are smiling.
A Facebook friend of mine who is a law teacher recently posted a status update expressing understandable pleasure over a couple of dozen end-of-semester thank-you notes, emails, and other tokens of gratitude from students.
The post got me musing about what you might call the culture of expressed gratitude in law schools. I've been in this business full-time since 1994. Over the years I have noticed that some faculty members seem to attract expressions of gratitude from students, and others don't. You see the telltale signs lying about: the little envelopes stuffed into doorframes or slipped partly under doors, the little packages and Hallmark envelopes left in faculty mailboxes. And there are a couple of things that have struck me about this. First, as I say, there are clear patterns -- if you pay attention, you can see that there are some who attract concrete expressions of gratitude, and others who don't. Second, the faculty member's reputation for excellence in teaching correlates at best imperfectly with the pattern. Some who appear to receive lots of student love are reputed to be great teachers, but many reputedly great teachers don't ever seem to have the little-package-stuffed mailbox or the telltale envelope stuffed in the doorframe.
This is an interesting thing. Is there something in the student-faculty relationship that helps explain the patterns?
I hasten to add that I'm musing about this out of a genuine sense of curiosity, not out of resentment. Though I've never been among those who receive the cards and emails and little gifts, I know that the students in my classes have enjoyed them and felt that they've learned a lot.
Greg Alexander has a paper up on ssrn, "Unborn Communities," that engages a topic of much interest to me: whether we owe a duty to future generations. I blogged about this topic a few years back when the GW Law Review had a symposium on "What does our legal system owe future generations." I framed the issue somewhat differently: by asking did previous generations owe us anything? The trusts and estates professor in my is interested in ways that previous generations bound themselves for our benefit. Obviously trust provide one example of a previous generation binding itself -- voluntarily, I know -- for the benefit of a later generation.
Alexander is interested in moral, rather than legal, obligations. But Alexander uses analogies to trusts, too, to try to shift out the property we leave to later generations and some of the limits we try to impose on that property (such as limitations on whether the property can be sold). Here is his abstract:
Do property owners owe obligations to members of future generations? Although the question can be reframed in rights-terms so that it faces rights-oriented theories of property, it seems to pose a greater challenge to those theories of property that directly focus on the obligations that property owners owe to others rather than (or, better, along with the rights of owner). The challenge is compounded where such theories emphasize the relationships between individual property owners and the various communities to which they belong. Do those communities include members of future generations? This paper addresses these questions as they apply to a property theory that I have developed in recent work, a theory that we can call the human-flourishing theory of property.
The conclusion drawn here is that property owners do indeed owe moral obligations to future generations. But the scope of those obligations is restricted, certainly more so than some theorists, such as Jeremy Waldron, have claimed. Unlike Waldron, for whom such obligations are a matter of rights, I argue that the obligations that property owners owe to past generations are grounded on dependence. Specifically, I argue that if we expect fellow members of our communities in future generations to continue what I call the life-transcending projects that we began, then it is incumbent on us to provide that same background conditions that we enjoyed to those future generation community members to whom we transfer the responsibility of continuing or fulfilling our life-transcending projects. Moreover, as the distance between the living and the unborn increases, our obligations to future generational communities generally weaken. Our obligations to them are limited to the background conditions that enable them to continue the life-transcending projects transferred to them. These conclusions place me in an intermediate position between those who take a robust view of the obligations that the living owe to future generations and those who think that the living owe no such obligations at all.
As I said in my blog post back in 2009, previous generations have done a heck of a lot for us, no doubt. And they did so in part, perhaps large part, because they were building something better for the future. One of my favorite quotes along these lines is Ralph Waldo Emerson's observation in "The American Scholar" that insects store up for future generations. He found the common elements of the human mind to store up knowledge "like the fact observed in insects, who lay up food before death for the young grub they shall never see." There's a great tradition in America--and in human society more generally, I suppose, though I don't have the expertise to testify to it--of making sacrifices for future generations, of doing something so that people whose names we will never know can have a better life. One thinks, of course, of the American Revolution here -- and of course the Puritans' Errand into the Wilderness. (The image is of the Sycamore tree at the Brandywine Battlefield Park.)
This week, Bloomberg Business Week published a graphic showing "underemployment range of the 20 cheapest vs. most expensive law schools." Unfortunately, their editors didn't know the difference between NYU Law and New York Law. Or maybe Mike Bloomberg just hates John Sexton.
(Yes, it's been corrected online. But for all the old-timers who read Business Week on paper - also known as parents-of-propsectives - the correction is unlikely to get noticed.)
Susan Westerberg Prager, the executive director and chief executive officer of the AALS - and former dean of UCLA Law School - has announced that she will be leaving Washington, DC and returning to Los Angeles. She will be the new Dean and Chief Executive Officer at Southwestern Law School. The huge loss for the AALS is Southwestern's incredible gain. Congratulations to all.
Maria School of Law invites applications for multiple faculty positions from
entry-level and lateral candidates, pre- or post-tenure. Ave Maria particularly welcomes applications
from candidates with teaching and research interest in Contracts, Business
Organizations, Sales, Negotiable Instruments, Secured Transactions, and related
commercial subjects. Applicants should
have superior academic credentials; a record, or the promise, of excellence in
teaching and legal scholarship; and an interest and commitment in exploring his
or her teaching and research interests in an institution that strives to
integrate the Catholic intellectual tradition into teaching, scholarship, and
service. Entry-level applicants may demonstrate scholarly promise by
publications in scholarly journals or scholarly works in progress. In the
case of any applicant with tenure, a distinguished record of teaching and
scholarship is required. Interested candidates should send their
materials to Professor Patrick T. Gillen, current chair of the Appointments
Committee. Applications can be
e-mailed to Professor Gillen at email@example.com or can be mailed to his
attention at 1025 Commons Circle, Naples, Florida 34119. Resume review will begin immediately and
continue until the positions are filled.
Ave Maria School of Law,
providing legal education enriched by the Catholic Faith, seeks employees whose
education, experience and beliefs are consistent with its mission. Ave
Maria School of Law is an EQUAL OPPORTUNITY/AFFIRMATIVE ACTION employer that
values diversity, including diversity in religious affiliation, and strongly
encourages applications from persons of diverse backgrounds willing to support
the institutional mission; it requires compliance with all state and federal
laws governing employment discrimination.
I've written articles and blogged before about the need (or otherwise) for writing requirements in the J.D. program and what those requirements should look like. I haven't given as much thought to writing requirements for LL.M. students and I'm interested in others' thoughts on this issue. Many U.S. LL.M. programs comprise a lot of foreign students for whom a writing requirement may be problematic depending on language skill level and depending on why they are enrolled in the program in the first place. If they are practising lawyers from other countries planning to learn some U.S. law to either to take a U.S. bar or to demonstrate overseas experience for career advancement in their home country, is a writing requirement seminar necessary for this purpose? When I took my LL.M. at Cambridge some years ago, there was no writing requirement - there was a writing option that I took but it was not mandatory. The student body mainly comprised foreign students who were interested in learning some comparative law, adding a qualification to their C.V. and having the Cambridge experience (and no I didn't join a rowing team so I guess I didn't have the TRUE Cambridge experience). The school probably wouldn't have had sufficient faculty resources to supervise the entire LL.M. contingent writing a minor thesis/research paper anyway.
I would understand the need for a writing requirement in LL.M. programs that are precursors to Ph.D. programs which is the case in some universities. But most U.S. law schools do not offer Ph.D. programs. So outisde the potential function of an LL.M. writing requirement as a precursor for a Ph.D., are there other pedadogical imperatives to include such a requirement in the program?