Monday, February 28, 2005

Utopia Law School

A few months ago, I thought I would write a story using the genre of utopian literature to poke fun at everything that is wrong with law schools. I thought I might even send it in to the law school newspaper. But after seeing how it turned out, I decided to forget it. The story had somehow managed to be both too giddy and heavy handed at the same time. (Just having looked at it again for the first time since I wrote it, I see now all too clearly that the two creative writing courses I took in college were for naught. ) But I don't have a blog for nothing. Without further ado, here it is!

Utopia Law School

I had only heard the vaguest of rumors that Utopia Law School existed when I applying to law school two years ago, so naturally it came as a great shock to me when I was sitting in tax class playing solitaire and I saw I got an e-mail from the school saying that I had been accepted into their program as a transfer student. I quickly agreed to visit the school; despite some serious googling had never been able to confirm whether in fact there was such a place. After class, I met my tour guide, who made me promise to never reveal where Utopia is located. (I can only say that despite the rumors that Utopia is at Princeton, which supposedly does not have a law school, the school’s balmy weather in the middle of the winter suggests that it is located somewhere in the South.)

While we were traveling, I asked my guide why the school is not listed in the U.S. News and World Report rankings. He explained to me that Utopia is literally off the charts because the school wants to attract only students who care more about attending a school that is right for them because it is not for everyone. “We want to create a positive environment where everyone feeds off each other. We don’t want students who only come here because it’s the best school they got into and we screen out people who believe they have a God-given right to clerk on the Supreme Court.” The guide said. “Utopia is much more work than at other schools and we only want people who we know will do the work because they love the law and want to use it to help people. That’s not everyone.”

My guide then explained that the program is only two years long, with the first year closely tracking that of conventional schools. The second year is focused on preparing students for practice: although there is some room for electives, trial advocacy and clinical classes are mandatory for all students. The school used to have a third year that was all electives, but had decided to cut back after a study showed that students were not attending classes and reported feeling bored and anxious to get out into the “real world.” But apparently even then, the move had been controversial within the administration. What had finally convinced the school to make the move was another study showing that the school was doing so well financially that it could do without third-year tuition.

After my guide explained all this to me, I was anxious to sit in on a class, so he took me to observe a first year class in contracts, which had just 30 students. The professor began class by returning the “homework” which had been to write a judicial opinion resolving a fact pattern the professor had given the previous week. My guide explained in a whisper that this is the standard procedure in all the classes: students read cases and then after discussing them in class, try their hands at writing an opinion applying the legal tools they have learned and incorporating as precedent the cases they have just read. In this way, he explained, students learn not only how to pick apart cases but how to engage in sound legal reasoning: the payoff is that at the end of the term, students are completely prepared for finals. My guide expressed wonderment at how conventional schools do not have regular writing exercises. “Why,” he exclaimed, “it’s like taking a class on Shakespeare and reading all the plays he wrote, and then having to write a two-act play on the final without having had any practice!”

When I expressed my own wonder in that the professors actually have the time to read all the practice exercises, my guide laughed and explained that not only is there a 6:1 student-faculty ratio, the professors don’t waste their time writing law review articles that no one will read anyway; they only publish when they really have something to say. Besides, he explained, how often one publishes is only one factor in the tenure process. The quality of teaching and the contributions to the work of other faculty members are also taken into consideration. “The faculty members actually fight amongst themselves to get people who are least like themselves ideologically so they can have more people they can bounce their ideas off,” my guide remarked, before turning to me with a quizzical expression. “If there’s one thing I never understood, it’s the obsession of professors at other schools with getting people who think like themselves. Really what’s up with that?” I could only shrug my shoulders.

When I asked about grades, the guide let out a loud guffaw and said, “Grades! You have got to be kidding me!” With a more serious tone, my guide explained, “We feel that there could not be a worse way to evaluate students. Grading causes too much stress and students learn nothing from seeing what grade they got.” I pressed him for details on what they do instead, and he explained that they do student evaluations instead, where the professor sits down with each student and makes very frank appraisals of each student’s performance in class, noting what the student did well and did not do so well in class, on the practice exercises and on the final. After the student has had the chance to ask questions and provide his own thoughts about what he learned during the semester, the professor writes up a short evaluation for insertion into the student’s records. But what about the employers? I asked. The guide laughed again and said that although employers initially grumbled when Utopia implemented its current system, it hasn’t stopped them from scrambling over themselves to land a Utopia grad; the school’s unique curriculum renders them all that much the more valuable than graduates from anywhere else. When I asked where students tend to end up, my guide said they literally end up everywhere: while many go to firms because making money is the right thing for them to do, many also go into the government or public interest work because they want more rewarding work.

My guide then took me around campus, showing me the activities that students participate in when not in class. He explained that membership in the law review is open to all who want to join, but only those with an interest in cutting-edge legal scholarship do so; students are smart enough to recognize that they will be in demand when they graduate no matter what they do and choose to spend their time doing what they find most rewarding. Most students prefer to take on pro bono cases to help people while gaining practice trying their hand at applying what they have learned in the classroom. I got the chance to talk to a second-year student taking a break in between clients and she told me, “First year was fantastic, but I never thought law school could be this wonderful. Everyone I know really loves second year because first year we didn’t really know anything and now all of a sudden we can really do stuff with the law!” She then apologized for not being able to talk with me any longer, but told me that she hopes that students where I come from can relate to her enthusiasm. “How can it not be anything like this anywhere else? What you can do through the law is so fulfilling no matter where you are!”

Then I felt something hit me. I woke up baffled to see everyone in tax class looking at me and laughing. The professor had thrown chalk at me. “You shouldn't fall asleep in class,” he said, laughing.

Sunday, February 27, 2005

The Medicare prescription drug benefit

Republicans and Democrats were outraged earlier this month when the Bush administration released significantly revised upwards the estimate of the cost of the Medicare prescription drug benefit enacted last year.

Today, the Democratic governor of Montana delivered the weekly radio address for Democrats, lambasting President Bush for refusing to allow the importation of cheap drugs from Canada all the while permitting hogs and cattle to cross the border. (I'm unsure whether the governor is also trying to push the administration to bar those imports to help the Montana industry, but regardless his desire to find ways to save money on prescription drug benefit seems genuine.) The Bush administration has also dismissed the idea of some Democrats to save money by allowing the government to negotiate with the drug companies for better prices.

Any conclusions other than President Bush is in the pocket of the drug companies?

Saturday, February 26, 2005

The Federalist Society Symposium

There has been a lot of excitement in the blogosphere about a Federalist Society symposium here this weekend. From Class Maledictorian, Crescat Sententia and Waddling Thunder and the live blog at Ex Parte, the event sounds action-packed; even President Larry Summers showed up to offer some opening remarks that were self-depreciatory in nature.

I never go to these things, and it's not just because I'm liberal. I don't go to the events hosted by the progressive American Constitution Society (ACS) either. Although both organizations are open to all, my perception is that the students largely self-select. Conservative students join the Federalist Society and liberal students ACS. The events are largely one-sided, with one group presenting mostly conservative speakers and the other liberal speakers. And to the extent there is "debate," the speakers tend to all agree with one another as was the case at an ACS debate on affirmative action when everyone on the panel supported affirmative action. Or the speakers tend to talk past each other as was the case at a debate about the death penalty last fall when the conservative thinker argued the death penalty should be used because the ending to Macbeth wouldn't have been satisfying if Shakespeare hadn't killed off Macbeth and the liberal professor marshalled statistics against the death penalty and argued that most, if not all, of the other countries with the death penalty were mostly illiberal nations like Iran and China. I don't think the debate convinced anyone or even illuminated anything. Although there are occasional events that might be worth attending, I think that the real value of these groups is the opportunities they offer for networking with people on either side of the ideological spectrum, be it either famous people or students who might prove valuable ideological allies down the road.

Then again, I may just be skeptical about the value of debate in the first place. I tend to believe that we are set in our political ideology by the time we are seven and that we spend the rest of our lives working out the implications of our first principles. To the extent debates are useful, they can help sharpen our thinking by forcing us to confront elements we had not given enough consideration to. But even then, I find the prospect of such debates occurring because the talk about the "other side" tends to be shrill and loaded with rampant stereotyping.

So why read this blog, or any other political blog, for that matter? Aside from any entertainment and procrastination value, beats me.

Friday, February 25, 2005


When President Bush first met President Putin in Slovakia in 2001, he declared that he had looked into Putin's soul and had liked what he saw. Bush even took to calling him "Pootie-Poot."

But Putin''s actions at home have alarmed democracy watchers around the globe; political candidates have disappeared without warning, the media has been suppressed, and he has not been above jailing political rivals. He has also moved to appoint regional governors in lieu of popular elections. Whatever the circumstances in each individual case, as a whole they present an alarming trend away from democracy. Even more alarming was that nobody seemed to be saying anything about it.

But yesterday President Bush finally lectured Putin, during a press conference no less, on the fundamentals on democracy, even if doing so might come at the cost of jeopardizing any cozy relations with Pootie-Poot. Putin was visibly upset by this lecture, shifting around at his podium and leaving immediately after a cursory handshake with President Bush.

But what is most interesting to me at the moment is what Putin had to say during the press conference in response to President Bush's remarks, claiming that a return to totalitarianism was impossible:
Russia chose democracy 14 years ago without any outside pressure. It made this choice for itself, in its own interests and for its people and its citizens. It was a definitive choice and there is no turning back.

Simply because Russia chose democracy after the collapse of communism does not mean that there is "no turning back" to totalitarianism. I blogged last month about how democracy is perpetually insecure about its own future. Democracy can always slide into something that is not democracy if basic liberties are not secured constantly.

After all, it was a democracy that produced Hitler. He was elected chancellor in 1933 and gradually built up his power until he was unquestionably fuhrer. I don't mean to suggest that Putin is another Hitler in the making, only that the mere fact that Russia is "now" a democracy does not mean that there is need to worry about the possible return of totalitarianism.

I don't know whether Pootie-Poot has a nickname for President Bush, but I wouldn't be too unhappy if it were now a series of expletives. President Bush did the right thing to stand up to him, and I hope that he follows through with regular updates on the state of democracy in Russia.

Thursday, February 24, 2005

Papal infallibility

A few days ago, I blogged about a line the Pope had in his most recent book about gay marriage proponents very possibly being evil and wondered how he would react if his line was turned against him. I did not mean to imply that I thought the Pope himself was evil. I think he is a wonderful human being and I cannot think of anyone who is more purely motivated by a desire to serve mankind than he is. Rather, my issue was that he would suggest that people who have policy disagreements with him are evil. I find this black and white view of the world scary because it runs roughshod over the nuances that are a reality of everyday life and threatens totalitarianism.

Then again, Catholics believe that the Pope is infallible. I find papal infallibility a dangerous concept because it vests all power in the body of one man. The excesses of papal rule in the 1500s show that popes can be all too human in their rule. Today's popes are far holier in their intent and I cannot think of a single instance where Pope John Paul II acted in a way that might be characterized as evil, policy disagreements aside. Then again, the Pope has far less power than he did 500 years ago. The Reformation took care of that. But I'm not content to leave it to one man to guard his own outer boundaries of power, even if his power is weakened. Even the best intent can lead to abuses of power that can cause more harm than good to the world, as Red and Blue, another Harvard Law student, argues in his blog.

Papal infallibility is a belief that is not conducive to dissent that might encourage a moderation that takes into account the subtleties of the human condition. The Pope is but one man, and he cannot know how people from backgrounds different than his lead their lives, what troubles they face, and what options are available to them. Pluralism is perhaps the form of rule that is most sensitive to this diversity of humanity and perhaps also the one that provides the best "fit" between law and reality.

But it is useless to proceed with this argument because I am starting from a radically different proposition than devout Catholics are. This is the difference between secularism and religious orthodoxy. But that does not mean all is lost. It is possible to have a constructive dialogue because secularists and religionists share far more in common than they differ in their beliefs; we all believe life is precious and abhor human rights violations. But this respect must also include a willingness to disagree, and Red and Blue is right that there has not been much criticism of what the Pope had to say in his book about the ideology of evil. This absence of dialogue suggests that we are all talking past each other instead of trying to engage in meaningful conversations.

The Pope has been hospitalized recently; may our thoughts be with him.

The Republic of Texas

A separatist group called the Republic of Texas is pushing for Texas to become a free and independent nation. Texas is unique in that it was once a country in its own right after seceding from Mexico in 1836 before it joined the Union in 1845. Since Texas was also part of the Confederacy, the state had a serious identity crisis from 1836 to 1865. Safe to say that Texas has since been part of the Union and, if the Civil War taught us anything, will always remain so as long as there is a Union.

But on the other hand, if we had no Texas, Gore would have won the electoral college in 2000. For that matter, Governor Bush would not have even run for the White House because he would have been, well, already president of his own little country. Without Texas, Democrats perhaps would not only have the White House but also more power in Congress. It's too bad that the imagination is the only place where Democrats have any say in anything these days . . .

Wednesday, February 23, 2005

Harvey Rosen

President Bush today designated my former economics professor Harvey Rosen the head the Council of Economic Advisers. This is a promotion for him; he already serves on the council of three.

Harvey Rosen was one of my favorite professors, and I cannot think of anyone better qualified to advise on economic policy than him. But this news also comes as a surprise precisely for that reason. He strikes me as someone decidedly non-ideological and who cares more about sound principles of economics than pushing a political agenda. Then again, that he accepted the nomination to the council in the first place came as surprise as well. I'm even still surprised that he's even a Republican, perhaps because I expected him not to have any affiliation.

It will be interesting to see whether he has a hand to play in the overhaul of Social Security. I remember that when he lectured on Social Security, he called it the third rail of politics and said very emphatically: "Touch it and you die." Perhaps it is no accident that there are rumors that he will return to Princeton at the end of this summer when his academic leave is up.

Blog topics

Professor Bainbridge puts it very well in his blog about why he doesn't always blog about the top news of the day: he writes about whatever interests him at the moment.

I could be blogging about Iran and North Korea, which have had some frightening developments in recent weeks, but for reasons that remain unclear to me, I haven't quite had much to say about those and other affairs that are reported on a regulat basis in the media.

That being said, I welcome suggestions for posts that readers might enjoy. I have a queue of two topics that I plan to get to someday.

Skipping kindergarten

Larry Summers met with Harvard faculty again yesterday, once again offering his apologies. It's not clear yet whether anything was accomplished at the meeting other than more venting, though it seems that the anti-Summers movement has stalled for the time being.

The meeting did yield this amazing statement on the part of Summers:
I pledge to you that I will seek to listen more and more carefully and to temper my words and actions in ways that convey respect and help us work together more harmoniously.

Is it just me, or is this the stuff we learn in kindergarten?

(To those readers questioning this recent obsession with Summers, I can only say that he is the gift to this blog that keeps on giving.)

Tuesday, February 22, 2005

More corruption

Why am I not surprised?
Eleven New Jersey officials, including three mayors, were arrested today and charged with taking bribes or, in one case, laundering money in an F.B.I. sting operation that involved an undercover contractor.

More offensive speech

The Daily Princetonian reports that there is another controversy involving a student rag publishing something offensive. This time, the Princeton Tiger made supposedly humorous references to the KKK, drawing the ire of the Black Students Union (I didn't really understand what the satire was supposed to be about, so you have to read the article yourself).

The question for those who support discliplinary measures for the Nassau Weekly editors who made fun of the Holocaust is whether this is the same, or different. Whether your answer is that the situations are the same or different, how do you know? Quite frankly, I find frightening the notion that there should be someone to draw these sort of lines for us. We might say something and then find out we have to pay for it with more than just our reputations.

The rubber and the glue

The Pope has a new book coming out, and he apparently had the following to say about proponents of gay marriage:

It is legitimate and necessary to ask oneself if this is not perhaps part of a new ideology of evil, perhaps more insidious and hidden, which attempts to pit human rights against the family and against man.
This is a most remarkable sentence. I wonder what he would have to say if proponents turned that sentence right around on him.

Monday, February 21, 2005

Larry Summers, anyone?

Let the bidding begin!


President Bush is touring Europe, trying to mend fences with leaders like Jacques Chirac. The rift is allegedly over Iraq, but I submit that the real reason is the photo below, which was taken about a year or two ago:

Sunday, February 20, 2005

A glimpse into the future president

The New York Times reports that a confidante of President Bush secretly taped conversations with him as he was gearing up for his first presidency run. Although the tapes provide some fascinating moments, there are no surprises about the man we have gotten to know over the last five years. I excerpt below some of the more interesting moments.

On then-Senator John Ashcroft:
I like Ashcroft a lot. He is a competent man. He would be a good Supreme Court pick. He would be a good attorney general. He would be a good vice president.
On John McCain before he emerged as his chief primary opponent:
He's going to wear very thin when it is all said and done.
On campaigning against Al Gore, who he called "pathologically a liar":

I may have to get a little rough for a while, but that is what the old man had to do with Dukakis, remember?

Saturday, February 19, 2005

The Nassau Weekly

The Daily Princetonian reports that the Nassau Weekly, an irreverant student publication that tries to get a good laugh every now and then, recently apologized for running a list of the top ten Holocaust movies we would like to see but have never seen. An excerpt from the article describing the spoof:
The list, which was printed in the magazine's Feb. 10 issue under the larger headline "And Now For Something Completely Offensive," was written by the magazine's coeditor-in-chief Jacob Savage '06 and features editor Rob Buerki '06.

In the list, Savage and Buerki — who are both Jewish — altered mainstream movie titles like "Dude, Where's My Car," "A Weekend at Bernie's" and "Meet the Fockers" to "Dude, Where's My Family," "A Week at Bergen-Belsen" and "Exterminate the Fockers."

The administration called the list "undeniably offensive" and is considering disciplinary measures. I agree with the administration on the first and not the second. While the Nassau Weekly editors explained that they showed it to other Jewish students (presumably friends of theirs) who said they were not offended by it, they misjudged the political sensitivity of this issue. Although the title of the piece was "And now for something completely offensive", the authors do not seem to have thought that the piece would be truly offensive, only offensive in a manner designed to elicit a few laughs at the sheer inappropriateness of the piece. At least that is what I knew the publication to be when I was at Princeton; they used to place copies in every toilet stall and always delighted in being a thorn in the Daily Princetonian's side. Nonetheless, that the editors would so badly misjudge the public reaction is surprising in light of the controversy surrounding Prince Harry last month when he wore a Nazi uniform to a costume party. Asking friends to take a look is also not the best way to measure potential reaction because your friends know who you are and that you did not have bad intentions and will take that into account when offering their take on your work.

However, disciplinary measures goes too far. The almost uniformly negative reaction to this piece seems to have done its job. The authors learned that they overstepped the boundaries of what the public finds acceptable and apologized. This is the marketplace of ideas at its best. Disciplinary measures are therefore unnecessary. Although sanctions might encourage student editors to think twice before publishing anything, that seems to be the practice generally now; it's not clear to me that the editors would have done any differently because they were clearly concerned about the possible reaction when they showed the piece to their friends and they appear to have simply made a misjudgment in that regard. In this way, the sanctions would largely punish those who did not anticipate that they would be flouting any University rules. Strict liability is simply inappropriate in the speech context not only because it would chill the exchange of ideas that the marketplace of ideas thrives on, but also because, as just discussed, there is already the possibility of "market correction." In this context, the authors probably feel terrible about what they have done, and that they will think twice before publishing anything even remotely similar in the future.

Friday, February 18, 2005

New Jersey politics

According to a New York Times article, Republicans are claiming that Senator Jon Corzine is the new "boss" of New Jersey politics because he gives so freely of his fortune to local Democratic politics. The Republican charges that Corzine is a party boss seems designed to evoke the incredible dirtiness of New Jersey politics, which is so rough that political strategists go there to hone their tactics. But without more, this charge that Corzine is a party boss will not stick and he will soon be governor.

The only question in my mind is when the next scandal will be, and just how shocking it will be. As far as I know, every New Jersey politician has been led away in chains at one point or another; scandals shock only in their scope. Party affiliation is irrelevant; Republicans come in promising to clean up after the Democrat taken away, only to be led away themselves. Repeat as often as necessary, and you have state politics in a nutshell. And when we thought we couldn't be shocked any more, Jim McGreevey announced that he was gay, had had an affair, and was resigning. The next one has to top this. Somehow.

How about this. Two years after Corzine is elected governor, a drunken driver crashes into a toll booth on the Garden State Parkway. Subsequent inquiry reveals that Frank Lautenberg, allegedly a senator but nowhere seen or heard from, had in fact been operating under an alias as the chief of the toll booth agency, skimming toll booth revenues to run a strip club. The club in turn was generating large profits to pay for a long series of surgical procedures to restore the senator's virility after former senator Robert Torricelli had chopped off his balls. (Torricelli, before leaving under his own cloud of scandal, had famously clashed with Lautenberg and once threatened to chop off his testicles.) Although it was once thought that Torricelli's words had been mere threat, the investigation found that he had in fact hired a hit man to do the deed. That man? David Chang, the convict who used the proceeds from the job assignment to bribe Torricelli out of his job.

Not far-fetched enough? I invite you to respond with your best guess at the next scandal!

Thursday, February 17, 2005

Blood in the water

Harvard President Larry Summers faces a crisis of confidence and his days may be numbered. Last month at a closed conference for economists, Summers made off the cuff remarks suggesting that women might be underrepresented in the science fields of academia because of "innate differences." National uproar followed, and on Tuesday, 250 faculty members attended what turned out to be a bashing session. At the end of the meeting, there was a unanimous vote to hold an emergency meeting next week. Summers' fate is very much up the air, but since the head of every school I have ever attended, dating back to elementary school, has left while I was there, his chances don't look good.

Although what Summers said appears to have been mere hypothesis about why female scientists are underrepresented in academia and as such is testable and therefore conducive to good science, his comments were ill-advised for several reasons. First, as President of a national university, he appeared to lend credence to an implication that women were inferior in the sciences, even if this was not in fact what he had intended to say or even what he believed. Second, with Harvard facing declining tenure rates for women since he took office three years ago, his comments gave the appearance that he was passing the buck on this problem. Third, and perhaps most importantly, the Harvard community was already furious with him starting almost with the moment he set up shop at University Hall. Summers famously clashed with African American Studies professor Cornell West who subsequently departed for Princeton (where I had the good fortune to have a seminar with him). Summers has also stirred resentment among faculty for various reasons that seem largely to relate to his blunt temperament and a glaring lack of nuanced touch. If the speculation about women last month were all there was, the controversy probably would have blown over quickly.

On a related note, the New York Times has an interesting article about a particularly well-timed book. The author, formerly known as Richard Blow, speculates, among other things, that Summers has a mild form of autism. Jeremy Knowles, former dean of the Arts and Sciences was unimpressed by the book and had this great comebacker:
It seems to be driven more by a negative anecdotal agenda than by the kind of balance and analysis that we like to see from graduates of Harvard College.

Talk about cannibalism all around. The only unknown is when Summers will be gone. I'm taking guesses and will award a yet undetermined number of points to those who are on the mark.

UPDATE: Summers today released the transcript of his remarks. But again, I don't think it's the actual content of his remarks, which overall seem within the boundaries of academic inquiry, but rather a longstanding anger within the Harvard community at his style of leadership. This was just the last straw on the camel's back.

SECOND UPDATE: The New York Times reported that Cornel West volunteered the following reaction after the transcript was released:

I've been praying for the brother, hoping he would change. It's clear he hasn't changed, I feel bad for Harvard as an institution and as a great tradition. It was good to see the faculty wake up. The chickens have come home to roost.

On a tangent, the great irony about Cornel West was that when I had him in seminar, he was always preaching the need for criticism; his imbroglio with Summers apparently began when Summers questioned how he was spending his time academically, from making rap albums to inflating grades (another irony was that Cornel West gave me my lowest college grade, but that is another matter altogether).

Wednesday, February 16, 2005

New York in bloom

The New York Times reported yesterday that Mayor Bloomberg has been enjoying a steady rise in his favorable ratings. Unpopular throughout much of his term, Mayor Bloomberg now enjoys a 41% approval rating. All just in time for elections, though perhaps it will prove too little too late.

Now that's what we call a late bloomer.

Tuesday, February 15, 2005

Judicial nominees

Yesterday, President Bush renominated seven judicial nominees that Democrats filibustered in the last Senate term. It will be interesting to see whether Republicans can get them through this time, having picked up four seats in the last election. I doubt, however, that the larger Republican will make much difference because two of the Democrats not returning (John Breaux of Louisiana and Zell Miller of Georgia) had opposed the filibuster effort. Although the new Democrat from Colorado, Ken Salazar, may support a controversial nominee that Democrats were blocking, Republicans are still about two or three votes short of the magical 60 votes required to shut down debate.

President Bush will argue something along the lines that Democrats are being obstructionist. In the sense that Democrats are preventing an up or down vote, definitely. President Bush will also argue that Democrats are being partisan. Definitely. But so is President Bush. If he really wanted to fill the vacancies, he could easily have nominated less controversial but still conservative people. After all, Democrats have "only" filibustered about ten of the approximately 129 nominations President Bush made over the last two years (104 were confirmed). I used quotation marks because whether 10 out of 129 is a little or a lot depends on partisan perspective.

Why is President Bush renominating the judges he knows Democrats will oppose? It's a bone to conservative interest groups to keep them happy. And why are Democrats opposing nominees who in all likelihood won't prove as terrible as the rest of President Bush's nominees? It's a bone to liberal interest groups to keep them happy. Is there anything we can do about this? Nothing, except that Republicans could try to reach a filibuster-proof majority or else unilaterally change the filibuster rule. The former could happen in 2006 (Bush carried more than 30 states in the last election, and many Democrats are from solidly red states) . The latter could happen this year. Watch for fireworks!

Regarding the Boxer-Feinstein trivia question I posed yesterday, two commenters caught the mistake when I said the senators were first elected in 1994. The senators were elected in 1992. Senator Feinstein is the senior of the two because Senator Boxer was initially elected to serve out the remainder of Pete Wilson's term after he became governor. Senator Boxer had to run again in 1994 for her first full term. Because the two commenters corrected me and guessed right, they each receive 10 Goodwill Points, redeemable value to be determined.

Monday, February 14, 2005

Boxer thongs

The Drudge Report reports an apparently new form of political advertisement by supporters of Senator Barbara Boxer (D-CA): the Boxer Classic Thong 2008. The thongs are going for $10.39 each. (Hillary Clinton and Barack Obama apparently also have their own line of thongs.)

Aside from the obvious question of why Boxer's supporters chose to make thongs and not, well, boxers, there is also the pressing question of whether thong-wearers will, well, choose to advertise their candidate in public.

On a related note, I'm feeling generous today towards any politically inclined readers. 10 Goodwill Points to those who can answer the following question:
California Democrats Barbara Boxer and Dianne Feinstein were both elected to the Senate in 1994. Which senator is the senior senator?
Google, if you must.

Sunday, February 13, 2005

Deja vu?

Republicans have a tendency to overreach when the opportunity to crush Democrats is near. Recall how Republicans lost the public relations war when they tried to shut down the government in a budget showdown with President Clinton, and then when they impeached him. More recently in 2002, Senate Minority Leader Trent Lott self-destructed, after Republicans had won the 2002 midterm elections and were about to regain control of the Senate, with some comments about how Strom Thurmond would have made a great president.

Republicans picked up four seats in the Senate last November. Senator Frist appeared on Fox News this morning, and there was a striking parallel between his appearance and Senator Lott's appearance on the same show in October 2002. I post the Lott picture first, and leave it up to you to draw your own conclusions about whether we have another doomed Republican on our hands.

Former Senate Republican leader Trent Lott, before he crushed himself out of it.

Senate Majority Leader Bill Frist today. Whether he will crush Democrats or himself out of it remains to be seen.

Saturday, February 12, 2005


February 12, 1809 was a most important day in political history. The great American president and inspiration for this blog, Abraham Lincoln, was born. So was Charles Darwin, the originator of that controversial theory called evolution. Perhaps this happy coincidence was by intelligent design?

Friday, February 11, 2005

The politics of corporate law

I am taking corporate law this semester, if for no good reason other than I will be working for a law firm in New York this summer and I would seem awfully ignorant not to know this stuff by then. So I headed into this material with less than full enthusiasm. I was even less keen after reading this paragraph in the introduction of my corporations casebook (Allen & Kraakman, Commentaries and Cases on the Law of Business Organization, p. 2):
As citizens, of course, we are concerned about far more than the creation of total wealth or even our share in it. We are concerned with the state of the world around us, the welfare of others, and the social policies that affect the distribution of wealth, although we might disagree about the particulars. But by and large, corporation law has been shaped within the classical liberal political paradigm as a field limited only to a slice of the human experience. Thus, legitimate political questions about, for example, the social distribution of wealth fall well outside the competence of corporate law. The laws of taxation, education, environmental and labor policy, product safety, and other issues of health, safety and welfare address the distribution of risks and rewards in society. Corporate law addresses the creation of economic wealth through the facilitation of voluntary, ongoing collective action.

This passage was deeply troubling for several reasons. First and foremost, the authors appear to disavow the role of politics in corporate law, which, according to them, is rather concerned with maximizing wealth. But this is flat out wrong. The authors even show why, when they refer to "voluntary, ongoing collective action" in the final sentence of the passage, and what is politics but the study of how groups interact? Although that is the academic understanding of politics, ideological politics is present in corporate law. Take the starkest example of Marxism, which clearly has a very different conception of what corporations should look like. Even within the American "mainstream," there are different perspectives on corporations, from the more conservative view that corporations are generally a good thing to the more liberal perspective that tends to view corporations with suspicion. And even "dirty politics" is everywhere in corporate law: interest groups lobby constantly for favorable corporate legislation and personal vendettas make for some really great corporate law cases. Finally, as a matter of history, the corporation was modeled on state governments, with CEOs as "political leaders" and ordinary employees as the "common people."

I felt a little better when the professor explicitly disavowed this statement by the authors. He said we would discuss doctrines that explicitly deal with political issues in the corporate context, though he didn't say what these doctrines were. But I can easily think of examples such as hostile takeovers. But there was more that my professor could have said but didn't say.

This is because a second problem with the passage is that the authors have an oddly limited view of corporate law, and more generally, a strange notion of the law as readily subdivisible into concrete areas of law. The authors distinguish between tax law and corporate law as if the two had little or nothing to do with each other. As a matter of common sense, this is just plain wrong. Corporations are generally structured to limit taxes, and amending tax laws will change the way corporations behave. Links to other bodies of law are also readily obvious; corporations are a major source of health insurance for employees, and altering health insurance law will inevitably affect corporations in not insignificant ways. By defining corporate law in such constricted fashion, the authors foreclose the possibility of using corporate law to address larger social problems. Whether corporate law should try to address larger social problems is another question altogether; I only mean to say here that it is possible to conceive of corporate law ambitiously. This is important because we never want to foreclose the possibility of using a particular tool to achieve a desired policy end.

Finally, the casebook makes no mention of how corporations affect the human spirit. This is no idle complaint. The lawyer trying to make partner might spend 12 to 16 hours a day in the office every day, and if he is particularly desperate or works for an especially merciless law firm, on weekends also. This lawyer will obviously have no social life because his commitment to the law firm will have largely subsumed any individual, non-lawyer identities that he might have had prior to joining the law firm. That the corporation was modeled on the state government should make this point clearer: just as we have national identities and cultural values so we have corporate identities and values that affect the human psyche. Understanding the interaction between corporations and individuals seems particularly relevant since corporations are fundamentally what happens when two or more individuals get together with a common purpose in mind. It is beyond me how any corporations casebook can so completely neglect this aspect. (Though it's possible that maybe I just haven't gotten to that part yet, the tone of the book thus far has not been promising.)

There's still hope because I've only had two weeks of corporate law, but so far, the course looks like it will focus largely on an understanding of corporate law that is constricted, devoid of humanity and not at all an avenue for addressing larger social issues.

Thursday, February 10, 2005

Medical bankruptcy

Harvard law professor Elizabeth Warren published an op-ed in the Washington Post today with the message that "nobody's safe" from medical bankruptcy. I encourage you to read the piece in full, but here is an excerpt:

As part of a research study at Harvard University, our researchers interviewed 1,771 Americans in bankruptcy courts across the country. To our surprise, half said that illness or medical bills drove them to bankruptcy. So each year, 2 million Americans -- those who file and their dependents -- face the double disaster of illness and bankruptcy.

But the bigger surprise was that three-quarters of the medically bankrupt had health insurance.

How did illness bankrupt middle-class Americans with health insurance? For some, high co-payments, deductibles, exclusions from coverage and other loopholes left them holding the bag for thousands of dollars in out-of-pocket costs when serious illness struck. But even families with Cadillac coverage were often bankrupted by medical problems.

Too sick to work, they suddenly lost their jobs. With the jobs went most of their income and their health insurance -- a quarter of all employers cancel coverage the day you leave work because of a disabling illness; another quarter do so in less than a year. Many of the medically bankrupt qualified for some disability payments (eventually), and had the right under the COBRA law to continue their health coverage -- if they paid for it themselves. But how many families can afford a $1,000 monthly premium for coverage under COBRA, especially after the breadwinner has lost his or her job?

Often, the medical bills arrived just as the insurance and the paycheck disappeared.

The theoretical description of the two caricatures that I discussed the other day is only a framework for thinking conceptually about the relationship between the individual and the government. Professor Warren's study is so valuable because it tells us that many people are going bankrupt not because they were foolish with their savings, but because of medical problems that may be no fault of their own. What to do with this piece of information depends on one's philosophical outlook, but it helps to inform the debate about how much individuals can and should be expected to take care of themselves, and to what extent the government should provide some relief, whether in the forms of new laws or outright subsidies.

Wednesday, February 09, 2005


Senator Harry Reid, Democratic minority leader, has come under fire by Republicans for being "determined to obstruct President Bush's agenda." The New York Times reported that Republicans released a 13-page report highlighting Senator Reid's obstructionist tactics.

There is nothing new about this strategy. Republicans hounded Senator Reid's predecessor, Tom Daschle, for being an obstructionist. One interpretation, probably the Republicans' preferred understanding, is that both men were truly obstructionis and sought to obstruct for the sake of obstruction. More likely, the strategy of calling the Democratic leaders obstructionists is a political ploy to curry favor with the public. Remember how President Clinton won a political showdown with "obstructionist" Republicans who had shut down Congress? Republicans are trying to do the same thing here.

There are different levels of obstruction. Shutting down the government is one form, and voting against a bill is another. If the majority party supports a policy, and the minority party opposes, is that obstruction? Under this approach, dissent is to be frowned upon. But, as I wrote when blogging about the rhetoric of President Bush, dissent is essential to the health of our democracy. Consequently, when we hear cries of obstruction, we should stop to ask what exactly it is that is "obstruction." Some forms are healthy, like policy disagreement, other forms are not, like the complete shutting down of government. There are tactics that fall in between these two extremes, such as the filibuster, and whether that is obstruction or not is for people to decide for themselves (ideally, views of the filibuster should be the same regardless of who is doing the filibustering).

Make no mistake that were the tables turned, Democrats would be accusing Republicans of blocking progress. Obstruction and progress are in the eyes of the beholder.

Tuesday, February 08, 2005


Palestinian Prime Minister Mahmoud Abbas and Israeli Prime Minister Ariel Sharon today announced a cease-fire that may effectively end the four-year intifada. This is a cheerful time, and there is hope in the air that permanent peace is near.

Still, as I wrote last month, we should be cautious in our optimism, because high expectations dashed can have worse consequences than lower expectations met. Hamas said today that the declaration of truce was not binding on the group; although it has tempered its violence, Hamas' statement is a reminder that Abbas and Sharon alone cannot bring peace. Palestinians and Israelis need to learn to coexist peacefully, and this is a process that will take a long time. There will be violence again, as there was violence after the 1993 Oslo peace treaty, but the hope is that the series of truces and occasional peace agreements will chip away at the mutual distrust and lay the foundation for permanent normal relations.

Monday, February 07, 2005

The politics of gay marriage

I missed until today a ruling by a New York state court that a state law defining marriage as between a man and a woman violated a state constitutional guarantee. The judge gave the city 30 days to start granting marriage licenses to gay couples seeking them. Mayor Bloomberg, who personally favors allowing gay marriages, announced that he would appeal the decision. The mayor may be trying to split the difference on this political hot potato as he gears up for reelection, but it is worth considering whether he is in fact doing the pro-gay marriage movement a favor.

The example of Hawaii is a lesson how initial victory in the courts can result in a long-term setback for the movement. A little more than 10 years ago, the state supreme court held that the state constitution required the state to recognize gay marriages. The state legislature responded by enacting an amendment to the constitution defining marriage as between a man and a woman.

But at the same time, the more recent example of Massachusetts shows that a victory in the courts can translate into an apparently permanent recognition of the institution. After the state Supreme Judicial Court recognized a right to gay marriage under the state constitution, opponents pushed for an amendment to the constitution to overturn the ruling. But the process of amendment is onerous in Massachusetts. The legislature must pass the amendment, go up for election, and then repass the amendment. The amendment then goes to the people for a vote before it becomes the law of the state. The legislature passed the amendment by a slim majority, but pro-gay marriage forces won a majority in the next election, and gay marriage in the state appears safe for the time being, though a backlash resulted in constitutional amendments in other states.

A question is what will happen if the New York Court of Appeals (the name the state supreme court there goes by) requires the state to start recognizing gay marriage. Will the state follow the path of Hawaii, or Massachusetts? The state could, of course, follow a middle path in recognizing civil unions, as did Vermont.

Now, I support the legalization of gay marriage, but not if it is in the form of court opinions that are swiftly overturned by a constitutional amendment. Generally, it is much easier for the legislature to pass a law than it is to amend a constitution. Because I believe that gay marriage will eventually be accepted everywhere, I worry that it will take longer for states with constitutional amendments against gay marriage to recognize the institution than states without such amendments.

An illustration. Say that without a constitutional amendment, only 51% of the population need support gay marriage for it to become recognized under ordinary state law. But with a constitutional amendment, 75% of the population might need to support legalization of gay marriage before it can be recognized (since a supermajority is normally required to amend the Constitution). It would take longer to reach 75% support than 51% support, and so legalization would be delayed in states with constitutional amendment.

Although Larry Tribe, a constitutional law professor here at Harvard, has argued that the gay marriage movement should press ahead without regard for the political consequences because one should live by principle and die by principle, I favor a more pragmatic approach that pushes ahead only when it is clear that there is enough support to sustain the legalization of gay marriage. The alternative is defeat that could set back the movement years.

Take Bowers v. Hardwick, for example. In that case, decided in the 1980s, a gay man had been arrested for engaging in homosexual sodomy. He challenged the constitutionality of the state sodomy statute, and Tribe argued on his behalf before the Supreme Court. Tribe pushed for the best possible ruling, that all sodomy statutes were unconstitutional, but in doing so, he lost the case. Subsequent anecdotal evidence suggests that had he argued for overturning the statute on narrower grounds, that the statute was rarely enforced and therefore its application to the plaintiff arbitrary, he would have probably won. The defeat was a major setback for the gay rights movement because in the years that followed Bowers, courts used the decision to justify permitting discriminatory treatment against gays. Some of that damage may now come undone, however, since Lawrence v. Texas overruled Bowers two years ago. (I am certain that the Supreme Court will not dare extend Lawrence to gay marriage any time soon because doing so would almost certainly result in constitutional backlash. For that reason, I think the Court is right to abstain on this issue.)

So what does this mean for gay marriage in New York? My view is that the state supreme court should require the recognition of gay marriage if and only if it is certain that the legalization will stick and that there will be no constitutional backlash that sets back the movement years. This is a tricky political calculation for a court to make, and one that many scholars have ably argued that courts should not make but leave to legislatures to make. I do not attempt to rebut those arguments here beyond a bare assertion that I think that courts should take such political calculations into account. That question about the role of courts is a debate for another time.

Here, I simply urge supporters of gay marriage to tread carefully because the possibility of backlash is very real and growing. Paradoxically, delaying justice can sometimes bring about its swifter arrival.

Sunday, February 06, 2005

The Super Bowl in Boston

A television commercial airing in the Boston area on the eve of the Super Bowl features Red Sox GM Theo Epstein and Boston Mayor Thomas Menino telling watchers to "celebrate responsibly."

A girl was killed after a police officer shot a BB gun into a rancorous crowd following the Red Sox' triumph over the Yankees in the fall, and there is always the danger that celebrations can get out of hand (though one would think Bostonians would tire of celebrations after a while). However, the commercial seemed supremely smug in its certainty than the Patriots would win the Super Bowl. Perhaps (hopefully) this newfound arrogance among Bostonians will be cause for a new jinx to replace the Curse of the Bambino. (In case the Patriots do win, the answer is "certainly not.")

(Some readers may question the choice of today's topic given that this is supposed to be a political blog. However, today has been a slow day in the world of politics, while also being one of the biggest days in the sports universe. Therefore the topic of the Super Bowl is deemed within the jurisdiction of this blog and a topic worth discussion.)

Friday, February 04, 2005

How to debate Social Security

Following his State of the Union address, President Bush went on the road to sell his plan for reforming Social Security. He has received significant press coverage, not all of it flattering. The New York Times on the Web today ran a picture of him doing his best imitation of a rock star:

On a more serious note, now is as good a time as any to share some thoughts about how we should be thinking about Social Security, those silly arguments about the life expectancy of African Americans aside. (On Tuesday, I explained why these and other rationales are little more than pretext.)

For an idea of what the debate is really about, imagine the following two caricatures of how to think about the individual and his role in society. The first is loosely associated with conservatives and the second with liberals. (What follows is not at all original; the point is that there has not been a public debate about this in the context of Social Security.)

The first caricature is that of the autonomous individual. This person is responsible for his own success. If he chooses, he can work hard, reaping the rewards of his labors to provide for himself. This rugged individual dominates the American imagination, whether it is in the form of the self-made man or the frontiersman. In stark contrast to this heroic figure is the lazy person who does not care to work hard and is content to lean on others for support. This person is popularly known as the “bum.” Moral values are what separate these two classes of men.

The second caricature is that people are not autonomous individuals but the product of society. In this view, how well off someone is will depend on factors beyond his control; this view is reliant on empirical observations that a person’s social standing is strongly correlated with socioeconomic status. Luck is what distinguishes people of different social standing.

The distinction between the two caricatures is how they understand how people function as social creatures and to what extent people make their own luck. The autonomous individual model understands all people as being given equal opportunity to succeed; any differences are owing to work ethic. The second model disagrees vehemently with this understanding.

But that disagreement can be resolved by resort to empirical data. The two models clash on a second, more fundamental level: to what extent should society be expected to help out individuals who have fallen on hard times? The autonomous individual model suggests that society should be expected to do very little: even if the deck is stacked in favor of some over others, in the end everyone is ultimately responsible for their own successes and failures. The second model counters that society may have a duty; if people are a function of the cloth of society from which they come, then society has an obligation to help those against whom the deck was stacked.

These two caricatures are extreme forms of argument that most people do not accept. The problem with the autonomous individual caricature is that it ignores overwhelming empirical evidence that white men have far more opportunities than African American women simply by virtue of their race and gender. The second caricature implies that all differences are based on moral luck; the corporate CEO was just plain luckier than the homeless man. Clearly this is wrong because common sense suggests that working hard can get you further than others who work less hard.

But in their less extreme forms, the two models are plausible ways of understanding the interplay between people and the society they live in. Republicans lean towards the autonomous individual model; though they may accept that some differences are based on luck, they understand the individual as largely responsible for his own successes. Democrats lean the other way.

So what does all this have to do with Social Security? Everything. Fundamentally, the debate is about whether people can and should be expected to take care of themselves in old age. (These two models also help inform other issues such as taxes that are at the heart about the relationship between individuals and society.) Thinking about how individuals function as members of a society has implications for how one views Social Security. The following responses are just some possible ways in which this background understanding informs policy choices (I merely outline some possibilities and do not mean to exhaust the list of possible arguments).

A person who leans towards the autonomous individual model is likely to emphasize that people should be expected to save for their own retirements; those who do not do so are just plain irresponsible. Social Security is undesirable because it intrudes on the ability of people to plan for their own futures and distributes money away from those who have worked hard and towards those who have worked less hard.

Those who lean towards the social model are more likely to emphasize that while individuals should save for their own retirements, people do not always in fact do so, for reasons that may not be entirely their own fault (perhaps by suffering severe medical problems after getting laid off and losing health insurance). Similarly, people may not be able to work into old age because of discrimination in the workplace against older people. Although these situations can and have been addressed by other laws, the combination of circumstances can make it difficult for people to save and/or work into old age. Social Security is a desirable safety net that ensures that people can live comfortably in old age, despite any factors beyond their control, or even in spite of bad saving habits.

This discussion focused on how to think more theoretically about Social Security. There are other arguments such as the ability of Social Security to pay for itself, but I have argued that these arguments are largely pretextual. What is largely driving the debate is how to conceive of the relationship between society and the individual. Yes, this is an unbelievably broad conclusion, but focusing only on policy considerations such as whether Social Security can pay for itself or whether the program cheats African Americans is to entirely ignore these larger background considerations.

Thursday, February 03, 2005

Better defense lawyers

Last night in his State of the Union address, President Bush spoke about improving the quality of defense lawyering in criminal cases:
In America we must make doubly sure no person is held to account for a crime he
or she did not commit -- so we are dramatically expanding the use of DNA
evidence to prevent wrongful conviction. Soon I will send to Congress a proposal
to fund special training for defense counsel in capital cases, because people on
trial for their lives must have competent lawyers by their side.

You want better defense lawyers? Do what works in every professional field. Raise the pay.

I mean this seriously. Most people go to law school to make a good living, and 90 percent of Harvard Law School students go into corporate law because that is where the good money is. I've never heard anyone here speak of becoming a public defender. That needs to change, and raising the pay is the best first step there is.

Wednesday, February 02, 2005

The good doctor

Richard Bond, former head of the Republican National Committee, on the increasing likelihood that Howard Dean will become the new leader of the Democratic National Committee:
I think it's a scream.

This is, of course, a reference to the infamous Dean Scream on the night of the Iowa caucus last year when Dr. Dean went on a rampage after a poorshowingthere that doomed his campaign. But who knows, such fire in the belly may prove the shot in the arm that Democrats need. At the very least, this is what Democrats have to hope for because barring another gigantic collapse, Dr. Dean is going to be their leader.

(The quote appeared today in an article in the New York Times on the Web.)

Tuesday, February 01, 2005

Debating Social Security

Last week, President Bush put forward another argument for dismantling Social Security as it exists today. President Bush suggested that the system shortchanges African-Americans because as a class they do not live as long as white people. As an empirical matter this claim is doubtful, for reasons Paul Krugman explained in an op-ed piece in the New York Times. First, the lower life expectancy for African-Americans is largely due to high death rates in childhood. Second, Social Security is a program that redistributes from the better-off to the less well off (tending to benefit African-Americans). Third, Social Security is also a disability insurance program (same).

But this is all beside the point. President Bush would be opposed to the program no matter how it affected African-Americans. He and many Republicans are fundamentally opposed to Social Security for ideological reasons. So why is he talking about the life expectancy of African-Americans? An obvious reason is that Social Security is a political hot potato that has often been called the third rail of politics: touch it and you die. Because many voters, particularly older voters, like the idea of Social Security, dismantling the program is most likely a hard sell.

There are good arguments for keeping Social Security in the same basic form and there are good arguments for getting rid of it. We're just not hearing these arguments, perhaps because there is little reason for politicians to take their gloves off and touch that third rail, so to speak. There are people both solidly for and solidly against Social Security for ideological reasons, but there are also many people who do not have clearly formed opinions about what should be done with Social Security. These people deserve to know what is really at stake: is Social Security fundamentally a good idea or a bad idea? Should people be expected to save money for their own retirement, or are they not to be trusted with planning for their own futures? Should Social Security continue as a redistributive program? These questions and many, many more questions are what is really driving the debate over Social Security. We need to be asking these questions even if our politicians cannot afford to be completely frank with us. I don't profess to offer any arguments either way here; my goal here is merely to point out that we have not been talking about what is really at stake but have been distracting ourselves with questions that are peripheral at best.

Arguments like the one President Bush made about the life expectancy of African-Americans is not the only type of argument put forward that has obscured the fundamental debate about the desirability of Social Security. Opponents have consistently pointed to the long-term potential for a financial shortfall to suggest that that Social Security is fundamentally flawed and headed for ruin. Although the debate over how to pay for Social Security is an important one, and one we should have, this argument about the long-term viability skips several important questions. First, it is not obvious that Social Security has to completely pay for itself; many governmental programs rely on general appropriations for continued existence. Second, even if Social Security should be expected to pay for itself, tinkering slightly with the program's parameters such as raising the minimum age or reducing benefits somewhat would go a long way towards this goal. Third, President Bush has pushed other programs such as the tax cuts and prescription drug benefits that may well prove more costly as a percentage of GDP than any Social Security shortfall may ever be. If President Bush really wanted to keep Social Security, he easily could have found the means to provide for its continuing existence. After all, President Clinton made "Save Social Security first" his mantra towards the end of his presidency, and Vice President Gore talked of a "lockbox" for saving present Social Security surpluses for future expected shortfalls.

In short, there are both good arguments for keeping Social Security and good arguments against keeping Social Security, but we're not hearing these arguments. What we're hearing instead are arguments against Social Security that do not go to the real reasons for why many people want to dismantle the program, and rebuttals to these arguments by supporters. Politicians will not always give their real reasons for behaving as they do, and they may have little incentive to do so here given the sensitivity of the issue. We should respond by taking their stated rationales with a grain of salt and thinking about what the issues at stake really are.