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Wednesday, April 4, 2012
High School Innovators Recognized for Creating Breakthrough Technologies
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Tuesday, April 3, 2012
PrawfsBlawg: Is Strategic Blogging by Legal Academics Exculpatory?
? The Determinants of Legal Theory Blog April's Fool Parodies | Main | Die Advokaten; or, Music About Law ?
Monday, April 02, 2012
Is Strategic Blogging by Legal Academics Exculpatory?
Dave Hoffman has an interesting post at CoOp titled "Motivated Cognition and the Mandate," about the nature of legal blog posts about the ACA argument last week. It also occasioned some quite fair disagreement on underlying facts. Setting those aside, I want to focus on one part of the addendum to Dave's post. He writes, in response to the argument by Ilya Somin that some liberal legal bloggers last week erred in claiming that the case was an easy one for the government: "There are, of course, many, many examples of liberal commentators predicting this was a slam dunk case on the merits. . . . But there are at least two exculpatory possibilities that Ilya might want to address: (1) like Barnett pre-Raich, such commentators were trying to shape the narrative by displaying more confidence than they felt. . . ."
To be clear, I assume Dave means exculpatory of the specific charge, not generally exculpatory. And it should be added that he is hardly the only person to suggest that a number of bloggers last week were "trying to shape the narrative." My sense, though, which may be wrong, is that a number of people who made this observation did have the general view that such conduct was generally exculpatory of the most critical claims made against these writers, or at least not inculpatory. Is that right? Should strategery be a defense to somewhat extravagant blogging by legal scholars on a contested issue?
This reminds me of the debate over scholars and amicus briefs that occurred a while back in response to a recent paper by Richard Fallon. Quite a few people took a more forgiving view of these matters than Fallon did, although I side with Fallon on this. One might well think that if the standards for impartiality in scholarship apply differently to amicus briefs, then they sure as hell are lighter or inapplicable for blog posts. I'm not quite sure this is right. In either case, I think the focus on the medium is incorrect. The relevant question is one of message, not medium. A scholar who writes an amicus brief that is plainly intended as an act of advocacy can be understood to be doing just that, and his or her claims can be evaluated and/or discounted accordingly. One who writes an amicus brief that, for reasons of persuasion, adopts a false air of impartiality or relies heavily on the scholar's (or signatory's) reputation and expertise as a scholar while saying (or omitting) things that a scholar wouldn't say (or omit) in his or her scholarly work is not just engaging in open advocacy; that person is also using his or her reputation as a scholar to work covertly and for non-scholarly ends. I continue to insist that there is something wrong with this.
I think something like the same conclusion ought to apply to blogging. Of course everyone already discounts for the medium. But there is still something wrong about yoking one's reputation as a scholar and expert to the non-scholarly end of "shaping the narrative." I'm not accusing anyone of doing this last week, although frankly it seems pretty evident to me that it happened and has happened before. And, clearly, not everyone believes there is something wrong with doing so. But I think there are good reasons to be disturbed by such conduct.
Does that mean no scholar is permitted to try to "shape the narrative" through blogging and other commentary, or that there's something wrong with having a normative legal or political view about such cases and sharing them? Of course not. But it does say something about how one ought to do so consistently with one's obligations as a scholar. The basic principle, it seems to me, is that your message, and the purpose of your message, should be clear. Someone who writes that current law clearly means X should mean what he or she says; "shaping the narrative" is no defense to asserting with confidence a view that one doesn't really believe, or doesn't believe with that degree of confidence. But one can always make clear, implicitly or explicitly, "This is my view of what the law should be, not what it clearly is under current law," that one is urging a particular result rather than offering an impartial analysis of the issues, and so on.
I can think of a number of posts about the ACA from legal scholars last week that were clearly and openly offered as advocacy and did a fine job of it. And I can think of others that were clearly not offered as advocacy at all, and said useful and interesting things about the oral arguments. (I would put Mark Tushnet's posts in this category.) But I do believe that some posts last week traded on the authority of their authors, made overconfident or disingenuous claims about the state of current law and the strength or weakness of opposing arguments, and did so for strategic reasons. I see those reasons as more inculpatory than exculpatory. I don't see the minimal requirements for scholarly integrity that I offered as changing because of the medium, or because of the importance and currency of the case.
Again, that doesn't mean legal scholars can't act as advocates. But if they can't do so openly--if they think it would somehow undermine the effectiveness of what they're writing if they preface their claim with, "Of course I'm writing this as an advocate and not a scholar; if I were writing this with my expertise or authority as a scholar one the line, I would say something different"--then I would suggest that they are, in fact, doing something wrong.
Posted by Paul Horwitz on April 2, 2012 at 11:21 AM in Paul Horwitz | Permalink
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Paul, isn't that one of the meta-issues in legal scholarship - that there is no bright line demarcation between scholarly advocacy and political advocacy? Every time you write an article or an essay with a thesis, you are advocating the correctness of the thesis. There are certainly clear examples of one versus the other at the ends of the continuum, but there's a whole lot of gray in between.
And isn't the other meta-issue in legal scholarship that there is no bright line demarcation between normative theses and descriptive theses? Or to put it otherwise, and to crib from Dennis Patterson, what makes a legal proposition "true"? [I pretty much agree with Dennis's conclusion that it's a mistake to treat any legal proposition as having a truth value.]
And isn't all of that complicated by the fact that even in the physical sciences, and certainly in the social sciences, there's less consensus about any demarcation between normative and descriptive than there once was (i.e. Popperian falsification as crisp demarcation gives way to Kuhn and Putnam on theory-ladenness)?
So my reaction is not so much that there's a problem with what you call advocacy. It's more that much of what passes as legal scholarship is no less advocating a normative view than "in your face" political rhetoric.
Posted by: Jeff Lipshaw | Apr 2, 2012 12:44:19 PM
"But I do believe that some posts last week traded on the authority of their authors, made overconfident or disingenuous claims about the state of current law and the strength or weakness of opposing arguments, and did so for strategic reasons."
I disagree. I think liberal commentators were perfectly sincere in their analysis of the state of current law and the strength and weakness of opposing arguments. And since current law has not changed in the past week, these arguments remain as valid as they've ever been. All that has changed is that the five conservative members of the Supreme Court have tentatively expressed their views on the issue.
This entire post (like Somin's and his co-bloggers') seems to be based on conflating (1) the merits of the arguments with (2) the likelihood that they would be accepted by the five conservative justices. After Bush v. Gore, it should be obvious that these are two entirely different things.
Posted by: AF | Apr 2, 2012 12:52:16 PM
"Should strategery be a defense to somewhat extravagant blogging by legal scholars on a contested issue?" I'm concerned that the attitude you're referring to goes beyond blogging and amicus briefs to actual scholarship. I.e., I'm concerned that there is an attitude that if lobbyists or politicians or advocacy groups make some extravagant claim X on issue N, then it is acceptable to make hyperbolic or tendentious claim Y with respect to issue N, where Y is in tension with X.
Posted by: Bruce Boyden | Apr 2, 2012 1:24:18 PM
An interesting comment. It would be useful, I think, if you could be more specific about angels and demons -- "But I do believe that some posts last week traded on the authority of their authors, made overconfident or disingenuous claims about the state of current law and the strength or weakness of opposing arguments, and did so for strategic reasons." Who did you have in mind?
Posted by: dave hoffman | Apr 2, 2012 2:50:31 PM
(1) The flip side of making a controversial decision more palatable by laying the groundwork ahead of time is one can also radicalize an otherwise uncontroversial decision ahead of time as well. So constantly calling the court "conservative" can delegitimate striking down the law and whip up partisan fury for the election.
(2) While I agree with commentators above that there is, in theory, NO "bright line" available, I'm struck with what LISTENERS should do when a commentator changes his or her mind. Two days before the hearings a certain well-known commentator was predicting a 7-2 upholding of the ACA and then after the hearing said the ACA is in grave trouble. So either the shift was a POLITICAL one, or else the hearing went so different from what this commentator expected that it should make that person think twice before publicly reading the tea leaves in the future. Either way, however, we as listeners know the person either (1) is simply reiterating policy preferences with no more knowledge than the average law student or (2) is humble enough to correct a mistake but far too enthusiastic to take seriously, and perhaps not humble enough to avoid replacing one wild prediction with a second wild prediction.
Posted by: AndyK | Apr 2, 2012 4:03:28 PM
AndyK, re (2), I would hope that commentators would change their predictions as new evidence becomes available. That strikes me as a feature, not a bug.
Posted by: Orin Kerr | Apr 2, 2012 5:44:16 PM
Thank you for the interesting comments. If I can add one response, I think my answer to the questions raised by the first two comments is roughly the same for both. There is a meta-issue here about law and legal scholarship, and I agree that, at least in contested areas, claims about law are rarely truth-claims. Similarly, there is certainly a counting-to-five aspect to saying "what the law is" about contested constitutional law issues. The relevant consideration, as I see it, isn't between the truth or falsity of claims about the law, although there can be evidently false claims about what the law currently is or the degree of certainty about it. It's one of candor about what one is saying and doing, and the uses to which one is putting one's ostensible authority as an expert. After all, few of us are total naifs about the points Jeff raises, or those raised by AF. We know there can be a thin line between normative and descriptive statements, and we can at least try to be clear about the nature and premises of our arguments.
Posted by: Paul Horwitz | Apr 2, 2012 9:35:06 PM
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Two schools in northwestern Fontana are named California Distinguished Schools
Two schools located in northwestern Fontana have been named 2012 California Distinguished Schools, state officials announced this past week.
David W. Long Elementary School and West Heritage Elementary School, which are part of the Etiwanda School District, were among 17 elementary schools from San Bernardino County to receive this honor.
Also receiving the award were three other Etiwanda School District schools -- Golden, Grapeland, and Lightfoot.
A total of 387 California public elementary schools gained this distinction, said Tom Torlakson, the California superintendent of public instruction.
"I am extremely proud of the efforts of these outstanding schools to boost academic achievement for their students," County Superintendent Gary Thomas said. "I applaud the work of the students, teachers, staff and administrators, as well as the district leadership, in being named a California Distinguished School."Initiated in 1985, the California Distinguished Schools Program honors elementary and secondary schools in alternate years. The award is recognition of the school's educational program, including high expectations for all students, the implementation of state-adopted standards, and results in narrowing the achievement gap.
San Bernardino County Distinguished Schools, as well as those from Orange and Riverside counties, will be honored at a regional awards ceremony on May 4 in Ontario.
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Sunday, April 1, 2012
Agency: Dreaded citrus disease detected in Calif.
File - In this undated file photo, the Asian citrus psyllid is seen in this University of Florida photo provided by the University of California, Davis. The California Department of Food and Agriculture announced Friday that citrus greening, also known as huanglongbing, has been discovered in lemon/pummelo tree in a residential neighborhood of Los Angeles County. The bacterial disease is carried by the Asian citrus psyllid and attacks the vascular system of trees. (AP Photo/University of Florida, Michael Rogers, file)
File - In this undated file photo, the Asian citrus psyllid is seen in this University of Florida photo provided by the University of California, Davis. The California Department of Food and Agriculture announced Friday that citrus greening, also known as huanglongbing, has been discovered in lemon/pummelo tree in a residential neighborhood of Los Angeles County. The bacterial disease is carried by the Asian citrus psyllid and attacks the vascular system of trees. (AP Photo/University of Florida, Michael Rogers, file)
File - In this Jan. 24, 2012 file photo, Mamoudou Setamou, center, a citrus entomologist for the Texas A&M University Kingsville Citrus Center in Weslaco, walks through the grove where citrus greening disease has been found in San Juan, Texas. The California Department of Food and Agriculture announced Friday that citrus greening, also known as huanglongbing, has been discovered in lemon/pummelo tree in a residential neighborhood of Los Angeles County. The bacterial disease is carried by the Asian citrus psyllid and attacks the vascular system of trees. (AP Photo/The Monitor, Nathan Lambrecht, File)
File - In this Jan. 24, 2012 file photo, citrus entomologist Mamoudou Setamou, holds an orange that is showing signs of citrus greening disease in a grove in San Juan, Texas. The California Department of Food and Agriculture announced Friday that citrus greening, also known as huanglongbing, has been discovered in lemon/pummelo tree in a residential neighborhood of Los Angeles County. The bacterial disease is carried by the Asian citrus psyllid and attacks the vascular system of trees. (AP Photo/The Monitor, Nathan Lambrecht, File) MAGS OUT; TV OUT
FRESNO, Calif. (AP) ? A citrus disease that has killed millions of citrus trees and cost growers billions of dollars across Florida and Brazil has been detected in California, despite the industry's best efforts to keep it at bay.
After a week of testing the U.S. Department of Agriculture confirmed at noon Friday that citrus greening was detected in a lemon-grapefruit hybrid tree in a residential neighborhood of Los Angeles County. Sales and shipments of citrus trees within a 5-mile radius of the tree were due to be suspended Saturday.
The disease stands to threaten not only California's nearly $2 billion citrus industry, but treasured backyard trees scattered throughout the state.
"Huanlongbing is called the world's worst disease of citrus," said Dr. Robert Leavitt of the California Department of Food and Agriculture. "It had been present until now in all of the world's major citrus producing areas ? except California."
The bacterial disease, also known as huanglongbing, is carried by the Asian citrus psyllid and attacks a tree's vascular system, producing bitter fruit and eventually killing the tree. Sap-sucking pysllids that feed on an infected tree become carriers of the disease.
It is not a threat to humans.
"It's disappointing," said Joel Nelson of California Citrus Mutual. "Now we'll see if this great program that we believe we have in place is going to work."
State officials were working on a larger quarantine that would extend into northern Orange County. The closest commercial grove is 14 miles away from the infected tree.
Detection of the disease has been state citrus growers' fear since the bug first crossed into San Diego County from Mexico in 2008, potentially threatening California's fresh citrus market. Despite 25 years of worldwide research, there still are no biological or genetic controls for the disease that keeps fruit from ripening.
The disease is present in Mexico and across the southern U.S., but nowhere is the problem more severe than in Florida, where the disease first appeared in 2005. The University of Florida estimates it has cost 6,600 jobs, $1.3 billion in lost revenue to growers and $3.6 billion in lost economic activity.
The pest and the disease also are present in Texas, Louisiana, Georgia and South Carolina. The states of Arizona, Mississippi and Alabama have detected the pest but not the disease.
California growers and state agricultural officials have been aggressively trapping and testing bugs for the disease since the first sighting four years ago.
"This is the other shoe dropping," said Ted Batkin of the California Citrus Research Board. "We're prepared, and now we'll put our game face on."
The industry group will ramp up trapping efforts and increase testing samples in an effort to keep the disease from crossing into the San Joaquin Valley, where 80 percent of the state's citrus grows. California growers have been contributing $15 million a year to fund efforts to fight both the psyllids and the disease on top of state and federal programs to fight its spread.
"We've been fortunate that we have been able to learn from the experiences of other citrus-growing areas of the world," Leavitt said. "They didn't know they had the psyllid or the disease until it was too late. We have learned from their scientists and have taken a proactive approach."
State officials are making arrangements to remove and dispose of the Los Angeles County tree, which so far is the only one found to be infected. They also will spray all citrus trees for psyllids within a half-mile of the infected tree. Testing on tissue samples from other trees within the half-mile radius is ongoing.
State officials are unsure why Los Angeles County has a higher rate of psyllid infestations than areas closer to the Mexican border. But officials are investigating whether the bugs are hitchhiking through airports and seaports.
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Larry Echo Hawk appointed to LDS Church leadership
SALT LAKE CITY (AP) ? A top official for the U.S. Bureau of Indian Affairs is resigning to accept a leadership position with The Church of Jesus Christ of Latter-day Saints.
Assistant Secretary Larry Echo Hawk is being appointed to the Quorum of the Seventy, which is the Mormon Church's third-highest governing body. It is a full-time position.
The 63-year-old Echo Hawk is a member of the Pawnee Nation. He has worked for Indian Affairs since 2009.
Echo Hawk was elected as the attorney general for Idaho in 1990, the first Native American in the country to be elected as a state attorney general. He ran unsuccessfully as a Democrat in 1994 for governor of Idaho.
The appointment was announced Saturday during the Mormon Church's semi-annual general conference in Salt Lake City.
?2012 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
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