The Faculty Lounge

Bradley and Gulati and the Sine Curve of Customary International Law

This past weekend, Duke Law School hosted a fabulous conference on Curtis Bradley's and Mitu Gulati's new article on Opt Out in Customary International Law (it's called "Withdrawing from International Custom").  Alas, the one big snow storm of the year hit the triangle on Friday night.  Though at least one person came from the UK, I was stuck eight miles away at my house in Chapel Hill.  I spent the day listening via telephone and watching the blooms on my cherry tree, which thought spring had arrived, freeze.  I suppose this post might just as well be titled, "Snowbound." 

Most of the conference -- and the paper as well -- relates to contemporary issues of whether nations should be able to opt out of "customary international law."  I guess I'm enough of a traditionalist that I'd think, it ain't custom unless countries have opted in at some point.  And I'm enough of a progressive in my thinking (I'll explain this below) that once something is identified as "custom," you shouldn't be able to opt out.  But there's obviously a lot of sophisticated thinking on this and particularly on -- if we do allow opt-out -- how that opt-out would work and in what situations we should allow opt out.  Most of this is above my pay grade, as President Obama says.  But there are two things in the paper that I want to return to.  (I wrote about their paper a while back and what I'm calling the "sine curve" in the interpretation of customary international law.)

 

First, is the trajectory of the idea of customary international law from 1800 (or thereabouts) to 1920.  The starting position is a loose sense of custom -- it's only customary if all "civilized" nations agree; if they don't agree, it's not custom.  And it's not binding unless everyone agrees.  Or so I'm led to believe from the Bradley/Gulati paper.  This fits with what we see in a lot of US cases, like Johnson v. M'Intosh.  And it makes sense in an era when we have a robust sense of the dignity of nations; and probably also don't have a strong enough enforcement means to compel other countries to follow any law that they don't agree with.   It's also a way to avoid a lot of conflict -- we don't apply rules unless everyone agrees on them.  Finally, it fits with the general judicial conservatism of the era.  

 

After the US Civil War, however, commentators and then courts shifted to a different view: that customary international law was not something you could opt out of.  Once it was established, it was binding, even if a country no longer agreed to it.  And that's more or less the position we are in now, though Bradley and Gulati suggest maybe we should go back to the opt-out regime.

 

In my earlier post I began to suggest some of the reasons for this shift in thinking, at least in the United States: part of this relates, I'm hypothesizing, to the idea popular throughout the nineteenth century that morals are progressing and that we're in a better position to judge (and enforce) morality than were previous generations.  Here are two other data points that I'd like to add to the mix.  First, in the years leading into Civil War, the opt-out of customary international law correlated with the southern idea that the Constitution was a compact and that southern states could opt of it.  One bit of data supporting this, is that southerners invoked Vattel's international law handbook for their argument about withdrawing from the union.  Vattel also was used to support the opt-out from customary international law argument.  The nullification controversy in South Carolina in the early 1830s had something to do with the dignity of South Carolina as a state. So it makes sense that they turned to one analogous literature (on  international law) as a font for their own domestic law arguments.

 

Second data point:  after the Civil War, our national identity was that the south's moral relativism (slavery is good in some contexts and at some times) -- which was related to the romantic-era ideas about specific context rather than universal, Enlightenment truths -- was wrong.  During Reconstruction and following it, what one might term the Second Enlightenment, there were certain moral truths.  We had fought a war over those truths and we were expecting that others abide those truths.  One explanation for post-war formalism (I know, I know, it's not clear formalism is still a useful explanatory category) is that it emerged from the sense of moral truths that abolitionists advanced.   I'm not sure that's right, but I think that we emerged from the Civil War with at least some missionary zeal for moral truth -- and we also emerged from it with the military clout that we could enforce those principles.  We had weight to throw around and we were comfortable doing it.  Then there's also a related principle of national self-assurance, born perhaps partly from the "scientific" literature on race that taught that people of European descent were smarter than other races.  All of this pointed in the direction of establishing principles and then enforcing them, without allowing some countries to back out.  The moral sense was that there was a one-way ratchet up.

 

Because I love antebellum landscape art, I even have a couple of pictures to illustrate these principles.  To illustrate the earlier, opt-out principle, think about Thomas Cole's series of five paintings, Course of Empire.  Cole depicts the same physical spot on the landscape over several millenia -- from a state of nature, to the pastoral state, consummation of civilization, then decline, and desolation.  Yeah--click on them all.  Quite a story of human events on canvas, eh?  Well, that's the image you use when you think civilizations advance and decline, in cycles.  (Want to know more about this?  Here issome more on the idea of progress in landscape art and in property law in antebellum America.)

But, when you're thinking it's one upward climb -- onward and upward forever, well, then you have a very different landscape art.  So by the early 1860s (remember, the Civil War began in 1861) we had paintings like Emanuel Leutze, "Westward the Course of Empire Takes Its Way (Westward Ho!)" (1861).  (See illustration at right).  Or, even better yet, Andrew Melrose's "Westward the Star of Empire Takes Its Way" (1867) (see below right).  How's that train headlight to let you know that Progress is on its way?

So by the post-Civil War era, as we enacted the thirteenth and fourteenth amendments,  we had a self-image of a nation dedicated to spreading civilization around the world.  I suppose the League of Nations is one of the bookends on that optimistic world view.  And of course World War II squared our nation's self-image as protector of moral truths.  In the tough post-war years we have looked into our souls and wondered how often we have failed in that purpose -- but that's at least our national identity.  (And, because this is a post in part about sovereign obligations, I can't resist linking to an image of a confederate bond.  It's hard to see, but the illustration in the upper right is of Richmond -- and it's loaded with scenes of economic progress, like a canal and a railroad!)

 

Now, some of the participants in the conference were skeptical of the lessons of history.  Why should anyone care about this?  There are two reasons.  The first is sort of inside baseball for legal historians: if we study  the question of opt out of customary international law over two hundred years, we can gauge how legal thought changes, particularly how it changes in relation to parallel (or perpendicular?) changes in moral thought and national identity.  I get that this is a justification of importance to the legal history crowd, much less so to the international law crowd.

 

But there is a reason that the international law crowd might actually be interested in this sine curve in the jurisprudence of opt-out.  It's because the history seems to matter; I defer to Bradley and Gulati on this, but their paper suggests that the twentieth century history (precedent) is continuing to exert a powerful gravitational pull on the principle that you can't opt out.  

 

To invoke a phrase that Sarah Ludington, Gulati, and I used in a paper on odious debts, this is a case of applied legal history, where knowing the history may actually help us to clarify the instances, if any, where countries ought to be able to opt-out.  Perhaps some will agree that the rule should still be that once a core of nations have advanced to a new, higher understanding of international law, we should bind other nations.  I'm enough of a child of the nineteenth century to find that appealing as a doctrine.  But I recognize that others may have a very different attitude, perhaps one skeptical of the United States' motivations and wisdom in pushing principles of customary international law.

The Modern Greek Drama, Part 2

In my last post, The Modern Greek Drama: Comedy, Tragedy, or Both?, I offered the insights of Cleary Gottlieb Steen & Hamilton partner and sovereign debt guru, Lee Buchheit, on the current Greek sovereign debt drama.  In this post, Buchheit’s frequent co-author, Duke law professor Mitu Gulati, discusses his reactions.

The spectre of a string of sovereign defaults -- remember the drama over the Dubai World default some months ago -- is back again.  It was the scare over Dubai that appeared to get the markets to ask whether there were other economies that might produce surprise defaults.  Attention moved from the usual suspects in regions like Latin America to the previously unthinkable members of the European Union.  Specifically, to Greece (and maybe now also to Italy and Spain).  Risk premiums increased and serious scrutiny was put on Greece’s finances in particular.  A couple of months later, the markets do not like what the heightened scrutiny has revealed (the words “book cooking” or their equivalent show up frequently, see Charlemagne's notebook in The Economist.).

 

But what precisely is going on?  Do sophisticated investors seriously think that Greece will be allowed to default?  Won’t the IMF or the European Union be sure to bail them out?  After all, a default in Greece would present the risk of spillover effects into its European compatriots.  And some of those other European nations appear not to be in the best of fiscal conditions (read, Italy and Spain) and others (like the U.K.) are very much hoping to be climbing out of a painful recession.

 

In theory, there is a constraint on a Eurozone bailout.  The Lisbon Treaty imposes a “no bailout” provision.  I am no expert on European treaties, but am guessing that one of the functions of this clause is to provide a protection against moral hazard.  In relevant part (see Tony Barber’s FT blog post from last week), the Lisbon Treaty says that assistance is permitted if a Eurozone member  “is in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control, the Council [of national governments], on a proposal from the Commission, may grant, under certain conditions, Union financial assistance to the member-state concerned.”  That clause is probably supposed to function as a commitment device.  It tells the more profligate among the European spenders that the more austere nations (think Germany) will not come to their rescue even though the failure to rescue has the potential to cause harm to the entire Eurozone community. 

 

Well, the rubber seems to have met the road, and the question is whether anyone will take the “no bailout” clause seriously.  If the clause were taken seriously, there would be no bailout because financial profligacy (along with a dose of book cooking) are probably precisely the circumstances under which the commitment against bailouts was supposed to operate.  In other words, not the “exceptional circumstances” contemplated by the treaty.  The question though is whether the political flesh will be weak (as it usually is) and whether, so long as Greece makes some efforts in the direction of showing that it is serious about austerity, a bailout will be in the offing.  Many experts seem to think that the inconvenient clause will either be explained away or just ignored.  If so, that should lead us to ask: Does anyone take moral hazard seriously anymore?  Or have the pundits decided that the costs of moral hazard are not that high?        

 

-- Mitu Gulati

 

Much like bad luck, great blog posts on sovereign debt crises come in threes.  Stay tuned tomorrow for an upcoming post from Anna Gelpern, Associate Professor of Law at American University, who’ll add her views to the mix.

Related posts:

The Modern Greek Drama: Comedy, Tragedy, or Both? (Reactions from Lee Buchheit)

Verge of the Unböring (The Modern Greek Drama, Part 3) (Reactions from Anna Gelpern)

The Modern Greek Drama: Comedy, Tragedy, or Both?

Earlier this month, we asked the question, “Is 2010 The Year of Odious Sovereign Defaults?”  As predicted, Greece (and Europe more generally) will have to answer that question soon.  According to Bloomberg:

Jan. 29 (Bloomberg) -- Greece is losing the confidence of bondholders that it will reduce the largest budget deficit in the European Union amid increased speculation that the country won’t be able to meet its debt obligations.

The nation’s government bonds are the world’s worst performers in January, losing 6 percent in local currency terms and extending their decline over the past three months to more than 11 percent, Bloomberg/EFFAS indexes show. Credit-default swaps tied to Greece trade at about the same levels as Dubai when it got a $10 billion bailout from Abu Dhabi in December. . . .

The German and French governments denied a report yesterday in the newspaper Le Monde that European Union member states are examining ways to provide assistance. Prime Minister George Papandreou said the country doesn’t need to borrow from European nations. . . .

“There is no bailout problem,” the bloc’s top economic official said in an interview with Bloomberg Television at the World Economic Forum’s annual meeting in Davos, Switzerland. “Greece will not default. In the euro area, default does not exist.”

For more, see Mish’s Global Economic Trend Analysis and Charlemagne's notebook in The Economist.

I asked Cleary Gottlieb Steen & Hamilton partner and sovereign debt guru Lee Buchheit for his reactions to the Greece situation and, gracious as ever, he agreed. Buchheit’s response is below. Buchheit’s frequent co-author, Duke law professor Mitu Gulati, has also agreed to post about his reactions to the Greek drama, and his post will follow in due course. 

Borrowing money has several things in common with substance abuse.  It can be hideously addictive.  It provides an anodyne to today's budgetary discomfort, while laying in store even more suffering down the road.  And, until the very end, the afflicted will deny the problem. 

When the addict is an individual or a corporation, a mechanism (bankruptcy) exists by which the creditors who unwisely or unknowingly fed the addiction will share the pain of withdrawal.

Sovereign borrowers are different.

With any luck, the government that resorts to borrowing as a means of covering its budget deficits in normal times (such deficits being the product of a politically understandable aversion to taxation coupled with an equally understandable urge to spend) won't be around when the time comes to repay the debts.  This may trouble the conscience of statesman; it doesn't seem to disturb the sleep of most politicians.

But when the day of reckoning does arrive for the sovereign debtor, however, no formal bankruptcy process can be relied upon to shift part of the pain to the creditors.  For the addicted sovereign borrower, the choices are (i) impose fiscal austerity to a degree that will convince some group of lenders -- official or commercial -- to refinance the maturing (inherited) debt stock until such time as good fortune can allow the debt stock to be rolled over on a purely voluntary basis, or (ii) default and restructure as best one can.

Neither option is pleasant.

The first requires the government to convince its citizens to accept a degradation of their standard of living in order to expiate the sins of their profligate forebears.

The second (restructuring), quite apart from national humiliation, forces the debtor country into the financial equivalent of cold turkey.  Whatever residue of the debt is left after the restructuring (as well as all other expenditures) must be serviced out of current government revenues with no expectation of new credit inflows for an indeterminate period of time.

Greece finds itself facing these two options.   The smart money -- at least the buyers of Greek bonds this week -- bet on the first alternative: self-imposed fiscal austerity at a level that will unlock a bailout (from the Eurozone, a coalition of willing Eurozone members or perhaps the IMF).

There are three risks.  First, the required fiscal austerity proves to be politically or socially untenable and is abandoned.  Second, the expected bailout fails to arrive notwithstanding the government's adjustment efforts.  Third, someone (like the IMF) demands BOTH fiscal austerity AND a debt restructuring.  This, after all, was precisely what dozens of over-indebted countries, starting with Mexico in 1982, were told to do in order to win IMF support.

-- Lee C. Buchheit

Lee’s point about the stark choices faced by sovereign borrowers reminded me of Reinhart and Rogoff’s discussion of the importance of willingness to pay versus ability to pay in the sovereign context.  (Coincidentally, I’ve assigned This Time Is Different: Eight Centuries of Financial Folly to my Ethics in Financial Crises class this month, and that chapter is particularly salient right now).  According to Reinhart and Rogoff (pp.51-52):

[C]ountry default is often the result of a complex cost-benefit calculus involving political and social considerations, not just economic and financial ones.  Most country defaults happen long before a nation literally runs out of resources.

In most instances, with enough pain and suffering, a determined debtor country can usually repay foreign creditors.  The question most leaders face is where to draw the line.  The decision is not always a completely rational one.  Romanian dictator Nikolai Ceausescu single-mindedly insisted on repaying, in the span of a few years, the debt of $9 billion owed by his poor nation to foreign banks during the 1980s debt crisis.  Romanians were forced to live through cold winters with little or no heat, and factories were forced to cut back because of limited electricity.

Few other modern leaders would have agreed with Ceausescu’s priorities.

Related posts:
The Modern Greek Drama, Part 2 (Reactions from Mitu Gulati)
Verge of the Unböring (The Modern Greek Drama, Part 3) (Reactions from Anna Gelpern)

LaVerne Immigration Law Symposium

On February 19-20 the LaVerne Law Review is hosting an immigration law symposium, "Encountering Stereotypes."  Hiroshi Motomura  of UCLA law school (and before that UNC) will deliver the keynote address, "What Is 'Comprehensive Immigration Reform'?"  

Motomura is the author of, among other works, Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States.

Medieval Justice

From the Boston Globe comes Peter Leeson's "defense" of the medieval ordeal.  Here's a sample:

Modern observers have roundly condemned ordeals for being cruel and arbitrary. Ordeals seem to reflect everything that was wrong with the Dark Ages. They’re an icon of medieval barbarism and backwardness.

But a closer look suggests something very different: The ordeal system worked surprisingly well. It accurately determined who was guilty and who was innocent, sorting genuine criminals from those who had been wrongly accused. Stranger still, the ordeal system suggests that pervasive superstition can be good for society. Medieval legal systems leveraged citizens’ superstitious beliefs through ordeals, making it possible to secure criminal justice where it would have otherwise been impossible to do so. Some superstitions, at least, may evolve and persist for a good reason: They help us accomplish goals we couldn’t otherwise accomplish, or accomplish them more cheaply.

I'm glad to see that some major newspaper is still willing to devote space to medieval legal history -- I had no idea that any would.  Interested in learning more?  Check this out.  Or his new book, Invisible Hook: The Hidden Economics of Pirates.  Now that's a great title!

Swinger Economics

On SSRN. 

Better yet, these comments on the paper, lifted from the comments section at Robin Hanson’s Overcoming Bias:

Anon: “It’s somewhat unhinging to realize that there is an economist studying these things in Italy, and his name is Fabio.”

Bejeebus: “These communities undergo all the drama/gossip/dynamics that can be seen in any such community. It’s not that different from Linux User Groups.”

New Monument Coming Soon To Tuscaloosa

I'm deep in analysis of votes in the Virginia legislature in the early 1830s right now, so this is going to be fast.  

There's a new statue -- of Nick Saban -- coming to the University of Alabama's walk of champions soon ... perhaps as soon as the A-day game.  One of the things that interests me about this Tuscaloosa News story is how the company making the statue is talking about the image they're trying to project: "Coach Saban's love of student-athletes, his love of being a teacher, that is what we have been asked to emphasize. He won't be in a suit and tie — that's not his style. It will reflect more of his role as an encourager, a director, that's the general direction."  Is there some insight in this about faculty attire?  Are those who wear suits and ties not encouraging?  Maybe; we've spoken about this before at the faculty lounge.

 

 

Global Free Speech Update

Iran:  Iran this week broadcast the execution of two men convicted of "counterrevolutionary" acts and defying god.  Bad enough that Iranian authorities say the charges were justified on account of the men's involvement in protests surrounding June's disputed election results, but it's likely that's not even true.  Instead, those protests are being used as a pretext for allowing authorities to pretty much execute who they want, when they want, for whatever they want, and there doesn't seem to be much the international community can do about it. 

France:  A parliamentary panel recommended in a 200 page report that women be prohibited from wearing a niqab in public office buldings, schools, and hospitals, and while traveling on mass transit.  The niqab, a full face veil that leaves only a slit for the eyes, is worn by approximately 2000 Muslim women currently living in France.  Authorities say the move is necessary to liberate women from "the black tide of fundamentalism," but opponents fear it will provoke a backlash and put some women in danger if their families discover them unveiled in public.  A ban against head scarves in public schools is already in place.

US:  Lee Bolinger chats with Law.com about Chinese censorship, Russian media threats, and the financial fragility of the American press.  Oh, and he's also got a new book: Uninhibited, Robust, and Wide-Open: A Free Press for a New Century.

Netherlands:  Geert Wilder went on trial this week (prior post here).  It's worth checking out the Youtube clip of his opening statement, where Wilder's quotes Thomas Jefferson (good), but then asks for expert testimony to demonstrate the "truth" of his comments that Islam equates to Nazism, and the Quran to Mein Kampf (bad).

-Kathleen Bergin 

Yet Another Law School Merger? UC San Diego, Meet Cal Western

Thanks to Paul Caron,  we learn that the San Diego Union is reporting that UC San Diego and California Western Law School have entered into preliminary negotiations to merge - or perhaps, simply, to affiliate.  Apparently, there is talk of entering into a Michigan State / Detroit College of Law agreement which allows for a single name, but separate corporate entities.   This presumably would allow UCSD to have a law school at little or no cost.  In exchange, Cal Western gets the reputational bump that comes with being renamed after a great state university.   I am certain that there will be lots of questions - particularly given the recent arrival of Irvine Law.  And this story comes on the heels of the (admittedly very different) UMass - SNESL merger controversy.  We'll be watching this  closely.   

On a related note,  until this article I'd thought that Detroit College of Law had merged into MSU.  But for better or worse, that's not the case...as the disclaimer at the bottom of each page of the MSU Law website explains.

Cleveland Marshall Dean Geoff Mearns Named Interim CSU Provost

Geoff Mearns, dean of Cleveland State University's Cleveland-Marshall College of Law has been named interim provost of the University.  The sitting provost, Mary Jane Saunders stepped down - apparently immediately.  Although I don't have any information right now, I assume that somebody else will be holding down the fort at the law school...or else Dean Mearns (a UVa law grad and former clerk to Judge Boyce Martin on the Sixth Circuit) won't be spending much time in Shaker Heights with his wife and five children.  (That info is on his law school bio page - promise!)  Congrats to Provost Mearns!

Chapman Law Dean, John Eastman, Resigns For AG Run

John Eastman, the dean of Chapman University School of Law in southern California, is resigning Monday.  He will seek the Republican nomination in the race for the post of state Attorney General.  Eastman has a JD from the University of Chicago and a Ph.D from the Claremont Graduate School.  He is a former clerk to Judge Luttig and Justice Thomas.  He practiced with Kirkland and Ellis before joining the Chapman faculty in 1999.  Dean Eastman would bring a lot of intellect to the AG post - but he's also got politics in his bones.  In 1990, he was the Republican nominee in the race for California's 34th Congressional District.  He lost in that race to Representative Estaban Torres by a 61-39 margin. 

His publication list is here.

And yes...the Chapman dean search starts now!

One Lawyer's Part For Haiti

My co-author’s spouse, Adam Broome (Vice President-Legal, General Counsel & Secretary at Cree, Inc.), is a super-interesting guy for a whole lot of reasons, not the least of which is his passion for aviation.  Last week, Adam had a chance to combine his love of flying with his desire to help out with the Haitian relief effort, by flying his 1983 A36 Bonanza for four days -- January 21-24, 2010 -- to help bring medical and other supplies to Haiti on behalf of the Bahamas Methodist Habitat, a Methodist-affiliated disaster relief organization based in the Bahamas.

According to this news story:

Over the past few years, Bahamas Habitat has used small planes to deliver supplies to Bahamas Methodist Habitat, a charity. When the disaster struck Haiti, the group was in a good position to deliver early help, so it put out a call for pilots, aircraft and donations.

So far, more than 190 people with aircraft have offered their help, and Rotary International has helped with funding and the distribution of supplies in Haiti. More than twenty planes are involved, with more coming, Armstrong said. . . .

And though the small aircraft don't hold a candle to the cargo capacity of their big brothers, they can hopscotch through small airports in Ohio, Florida and Georgia to pick up supplies. In Haiti, the planes can reach tiny airstrips where larger craft might have trouble.

And according to this article (Download Nassau Guardian Article on BMH-1) in the Nassau Guardian, which contains contact, donation, and other information:

Kudos to Adam, Bahamas Methodist Habitat, and to the many others who have given so generously of their time, money, and other resources during this crisis.

Top photo: Adam's Route to Cap Haitien

Next Photo: fully loaded at Inagua

Third: Unloading

Bottom: View of Cap Haitien on the north coast of Haiti

Paul Jones (1928-2010)

It is sad news to report that a friend of mine, Paul Jones, has passed away.  I got to know Dr. Jones in 2004, after he sent me a letter that contained a few words of encouragement.  He had seen a newspaper article regarding some work some of the faculty and students at the University of Alabama had undertaken to talk about the University's connections to the institution of slavery.  (The short version of that story is that the university owned people and a bunch of the faculty were important generators and promulgators of proslavery thought.)

The letter had been addressed something along the lines of "Professor Brophy, University of Alabama, Tuscaloosa, AL."  No zip code -- that's usually a bad sign when it comes to letters.  I got more than a handful of letters with such an address and when I opened this letter I fully expected that it would tell me I should quit or be fired or some such.  While I didn't particularly enjoy getting those kinds of letters, I learned a lot from them.   But this one was rather different.  Because it contained, as I said, a few words of encouragement -- and also a photocopy of yet another letter that Dr. Jones had received fifty five or so years before.  It was a letter rejecting him from the Univeristy of Alabama's law school.  So I called him and thus began a friendship.  It was a pleasure to see, over the next few years, the University's re-establishment of a friendship with him, as well.

Now I'm going to turn to a post I wrote last January about Paul Jones....

This story is decades in the making.  It starts back in the 1930s when, as a child growing up in Alabama, Jones dreamed--as so many boys did--of playing for the Crimson Tide.  Mr. Jones played for Alabama State instead.   But his dreams of studying at the University of Alabama continued.  So in the late 1940s Paul Jones, then a student at Howard University, applied for admission to the University of Alabama's law school.  Again, he was a generation too early. He was told that while the administrators here were aware that the United States Supreme Court might mandate that the University admit students like him, he should not pursue a lawsuit.  The letter included this paragraph:

While this may be gratuitous, I am adding that we at the University of Alabama are convinced that relationships between the races, in this section of the country at least, are not likely to be improved by pressure on behalf of members of the colored race in an effort to gain admission to institutions maintained by the State for members of the white race. On the contrary, we feel that inter-racial relationships would suffer if there is insistence that the issue be joined at this time. The better elements of both races deplore anything that tends to retard or jeopardize the development of better relationships between the races. For these reasons, therefore, we hope that you can persuade yourself not to press further your application for admission here.

Well, Jones was not a man to be deterred by adversity.  Paul Jones went on to a successful career--first as a businessman, then working with the interracial commission in Birmingham, and later as an official in the Nixon Administration.  He worked as an administrator with the Peace Corp and later with the Department of Education.  While with the Education Department Jones awarded a large grant to Alabama for adult education.  He did not mention his previous dealings with the University at that point.  (Jones was in the news in December 2008 when some Nixon tapes were opened, because Jones had been in charge of Nixon's get out the black vote campaign in 1972.)  He ran for Congress in 1982 (as a Republican) in Atlanta.  This story is beginning to smack of inside baseball, so let me get to the point.  Though Jones did not mention his dealings with UA when his education department awarded us a grant, he had not forgotten. either.  In fact, he saved his rejection letter for decades.   Beginning in the 1960s, Jones began collecting African American art.

Back in 2005 we welcomed him back to the law school to talk to students.  Then, in 2006 the University awarded him an honorary degree.  That degree was given because of his accomplishments as an art collector, rather than to make amends for the ancient wrong.  But in that action, the University renewed a relationship.  And in 2007 Dr. Jones gave a significant portion of his art collection to the University.  And now through his generosity and that of the University, too, Jones is bringing students and artists together.  Ah, what a wonderful story--and what a happy ending to the saga.

I learned a lot from Dr. Jones over the years and from examples he's set.  One of my favorite stories about him, though, is not about his art collection nor his relationship to the University, but about his childhood growing up in Bessemer, Alabama. He sometimes went with his parents to the Bright Star--a legendary restaurant that's still in operation in Bessemer. I highly recommend it next time you're in Birmingham.

 

Because those were the days of Jim Crow, Jones' family could not go in the front door.  So the proprietor would set up a table in the kitchen (or by the kitchen) and the Joneses came in the back door. That was a courageous position for the restaurant in those days, I am reliably informed.  

A while ago I asked Dr. Jones whether he'd been back to Bright Star. And he said "yes. It's still a great restaurant. [Pause] And this time I went in the front door!" Ah, what changes he witnessed over his lifetime--and what changes he was been a part of, and contributed to as well. It's an important lesson of foregiveness and of moving forward.  As we say in the historical memory business, we are far too often burdened by memory.  And we are far too infrequently blessed with the likes of Paul Jones. 

 

Update: The Crimson-White's obituary is here.

RIP, J.D. Salinger

Hot off the presses (and how long will it be until that particular phrase is defunct?):

J.D. Salinger died yesterday at age 91.  Story here.

For over 50 years, an important part of teenage-hood has been reading, and emphasizing, with Catcher in the Rye.  Although there have been a lot of supposed successors to the novel, I still haven't found one that matches up, despite the somewhat dated nature of the book. 

Of course, the 64,000 dollar question (another phrase that is becoming more dated every time I use it) remains:  was Salinger writing during all those years ?  Is there a secret novel--or novels--waiting for his executors?  Or was his removal to New Hampshire just to be left alone?

I sometimes wonder whether writers, whether novelists or scholars, write better if they are hidden away in solitude, or if writing within all the messy details of life produces better work.    Certainly my writing is done among the latter;  but would it improve if I pulled a Salinger every summer? 

Anyway, raise high the roof beam, J.D.--Mr. Salinger, we'll miss you.

Wouldn't Alexander Bickel Be Smiling Today?

Calvin Massey says that the President was showing "puerile anger" last night in criticizing the Citizens United decision in the presence of six of the nine Justices.

Ann Althouse sees it this way:

I think that if [the Justices] knew they were going to have to listen to that kind of in-your-face disrespect, they wouldn't have done the President the honor of sitting there, providing the scenery. But they were there, and I'm not going to criticize Alito for moving his lips and letting us see a silent defense of the judicial branch of government.

These comments reflect a different understanding of the place of the Supreme Court and of judicial review in our democracy from the one I teach.

What I teach is that the common image of the life-tenured, salary-protected Court as an institution apart from politics and insulated from accountability is mistaken.  I teach that one way to soothe concern about the "countermajoritarian difficulty" of judicial review is to recognize that the other branches of government -- the elected representatives of "We the People" -- can and sometimes do let the Court know when the Court has, in their view, gone astray.  On that view, the President's choice to criticize Citizens United in the Justices' presence was an unremarkable illustration of a healthy process.  If the President had called the Justices names, or mocked them, that would be a different story -- "puerile anger" and "in-your-face disrespect."  But he didn't do that.

Like Ann, I am not going to criticize Justice Alito for failing to sit there like a robot while his work was very publicly criticized, like the Chief Justice and Justice Kennedy did.  They're human beings.  I don't think that Justice Alito believes the majority did undermine one hundred years of precedent, and while we're accustomed to the notion that courts speak only through their opinions, I kind of like that Justice Alito reacted the way you'd expect a non-robot to react.

But unlike Calvin and Ann, I'm also not going to criticize the President for taking, rather than passing up, the very rare opportunity to give the Court a piece of his mind in a setting where We the People can all see him doing it.

Quotes of the Day

Via Tyler Cowen, from Barking Up The Wrong Tree:

“[P]itchers from the southern United States were more likely to hit batters in these situations, but primarily if the batter was White.”

Source: "It was a thought pitch": Personal, situational, and target influences on hit-by-pitch events across time. from Journal of Applied Psychology - Vol 94, Iss 6 by Timmerman, Thomas A.

Via Above the Law, from Richard Posner:

“Litigation is not ping-pong.”

Source:  No. 09-8042

CUNNINGHAM CHARTER CORPORATION, Plaintiff-Respondent, v. LEARJET, INC., Defendant-Petitioner  (DECIDED JANUARY 22, 2010)

 

Avatar Not So Titanic?

So Avatar has passed Titanic as history's highest-grossing film, with worldwide ticket sales of $1.86 billion (story here and list here).

Yeah, but we all recognize that ticket prices today are higher than in years gone by, making any such claim somewhat meaningless.

So where does Avatar rank when grosses are adjusted for ticket price inflation?  I don't have the answer for worldwide revenue, but for domestic revenue Avatar ranks (as of today) in the mid 20's on the list (sandwiched between screen gems Grease and Thunderball).  The top ten?

1.  Gone With The Wind
2.  Star Wars
3.  The Sound of Music
4.  E.T.
5.  The Ten Commandments
6.  Titanic
7.  Jaws
8.  Doctor Zhivago
9.  The Exorcist
10.  Snow White and the Seven Dwarfs

Not that this post will leave James Cameron feeling blue in the face.

In fact, listen closely and you can hear him say, "Frankly, Tim, I don't give a ...."

Willing To Move? A Rare Dean Opening At Qatar Law

Good news for those of you looking to move into academic administration.  The deanship has opened at the Qatar University College of Law.  The posting is here.   Everyone knows that it's impossible to find a good academic job - to say nothing of a good law dean position - in the highly populated Northeast and Western corridors.  I always tell people: the key is to be near a good airport with direct connections to New York.  On that standard, Doha International succeeds.  A nonstop leaves for JFK each morning.  The Doha International flight schedule also optimistically lists daily flights to Mobile, Alabama; Norfolk, Virginia; and of course, Pounds Field in Tyler Texas.  Sure, you have to connect.  But if you got a job as dean of UCLA, you'd have to connect to Mobile, Norfolk, and Mobile anyway.

Valentine's Day Blues...

As someone who will likely be stuck in an airport most of Valentine's Day this year myself, I tuned in with amusement to a local radio show this morning debating the question of whether one should break up with one's partner before or after Valentine's Day if the relationship is on the rocks.  It was a call-in show and, interestingly, women tended to think it was really unfair for a gal to go through with the Valentine's Day festivities while intending to dump the guy, while the men tended to agree that the gal should dump the guy before the lovey-dovey dinner, but not because it was unfair - just because guys are tougher than girls so they wouldn't mind not having someone to spend the holiday with. 

Professors More Likely to be Married

A study conducted by the Higher Ed Research Institute at UCLA has found that married professors, especially men, outnumber single professors. Taking its findings from census records, the vast majority of faculty members who are men are married, at 81%.   Of that married group, around 40% are married to other academics. 

The study also includes narratives of single faculty members experiences in a mostly-married environment.  Some single professors see benefits to being single in academe, others have found difficulties.

Regardless of your opinion, the numbers are interesting to see:

  2001                                                Married                Single  
American public                              57%                        43%
All faculty members                        76%                        24% (A)
American men                                  59%                        41%
Male faculty members                     82%                        18% (B)
American women                             55%                        45%
Female faculty members            66%                      34% (C)  

(A) Unmarried living with partner(*): 5% (within Single category)  
(B) Unmarried living with partner 4%  
(C) Unmarried living with partner 7%  

 SOURCE: U.S. CENSUS BUREAU; HIGHER EDUCATION RESEARCH INSTITUTE AT THE UNIVERSITY CALIFORNIA AT LOS ANGELES