Today is very special for the Northwestern Law School as we celebrate Prof. Marty Redish’s remarkable career. In response to a simple “what are you up to?,” Marty offers a predictably thorough description of his jam-packed scholarly agenda:
1. I recently completed a book entitled “The Adversary First Amendment: Free Expression and the Foundations of American Democracy,” which will be published by Stanford University Press, probably early next winter. The book develops a theory of free expression grounded in the theory of “adversary democracy”, which views democratic theory as nothing more than a means of controlled competition between competing viewpoints and interests. While it recognizes the importance of compromise, it views such compromise as merely the mutual promotion of separate individual interests, rather than a joint pursuit of some vague notion of “the common good.” The book critiques the works of more cooperative or collective free speech theorists (e.g., Alexander Meiklejohn and Robert Post), and then applies the “adversary” free speech theory to the subjects of commercial speech, campaign finance and corruption, and expressive anonymity.
2. Next week I will be delivering the Dunwody Distinguished Lecture at the University of Florida Law School; there I will critique established theories of constitutional interpretation, particularly the various categories of originalism and non-textualism, and propose as a viable alternative an interpretive theory I label “controlled activism”, which combines “modest exclusionary textualism” (employing a “no brainer” form of present meaning textual interpretation as a screening device) with a form of principled normative inquiry, policed by A form of Wechslerian “neutral principles” analysis.
3. My major project over (at least) the next two years is a new book, to be entitled “American Constitutionalism: The Role of an Independent Judiciary in Democratic Theory.” The book will advance a theory of American Constitutionalism designed to employ a prophylacticly protected judiciary as a means of preserving the democratic system against governmental deception of the electorate (“macro” constitutionalism) and assuring that individuals may be coerced solely under a consistently applied principled system grounded in the rule of law. The book will argue in favor of the “democratic paradox”—i.e., that democracy may be preserved only through the use of formalistic prophylactic protections of judicial independence. The book will also critique the fallacious theories of departmentalism and popular constitutionalism.
I am pleased to turn the spotlight on our cherished colleague, John McGinnis, who is being named to an endowed professorship — George C. Dix Professorship in Constitutional Law — this spring.
John McGinnis will publish two books in 2013—one on improving our democracy for the future and another on preserving the benefits provided by the past in the form of our Constitution. The first book, to be published in January of 2013 by Princeton University Press, is entitled Accelerating Democracy: Matching Governance to Technological Change. Continuous technological innovation driven by the exponential increase in the power of computers creates a restless world of relentless change. Accelerating Democracy offers a program to adapt democracy to this new world by placing democracy itself within the domain of information technology. The book shows how new information technologies, like empiricism, prediction markets and dispersed media, can combine to help solve a problem as old as democracy itself—how to help citizens better evaluate the consequences of their political decisions. If, as the book recommends, legal reforms take advantage of these new technologies, we can retain and improve the best of the model of governance we have—a politics that seeks to be informed by expertise and social-scientific knowledge—while shedding the arrogance and insularity of a technocracy. The essential message is that society’s capacity for learning must be increased to match its pace of change.
The second book, to be published in the fall of 2013 by Harvard University Press and written with Michael Rappaport, is entitled Originalism and Good Constitution. Originalism is undergoing a revival in the academy and this book will be in the thick of the debate. It offers a new justification for following original meaning, arguing that originalism leads to constitutional interpretations that are likely have good consequences for today. Its key insight is that our supermajoritarian constitution making process likely leads to the entrenchment of good norms and is better than any other process than can be devised for forming constitutional provisions. And since constitutional provisions are good by virtue of the consensus support they received, their continued beneficence depends on giving them the meaning that gained the consensus. The book also shows why this justification leads to a particular kind of originalism—original methods originalism—the view that the Constitution should be interpreted according to the interpretive methods the enactors deemed applicable. Following the original interpretive rules remains faithful to the way enactors would derive meaning, which is part of their understanding of what would make the provisions beneficial. The book thus argues that original methods originalism provides a way of resolving ambiguities and vagueness inherent in our fundamental law.
As we all know, the legal market is in the midst of extraordinary change and the present challenges facing our students – as with all law students – are considerable. Since 2008, the supply of law-related jobs has declined sharply and the speed of recovery remains slow and uncertain. To be sure, Northwestern provides a first-rate legal education and our graduates are much in demand; we remain a worthwhile investment by any credible measure. Yet, we need to be mindful of the ways in which the current legal economy affects our current and prospective students.
For decades, tuition has increased steadily at a rate higher than inflation at our law school and at nearly every top law school. Although our rates of increase have been similar to those of our private law school peers, and a good deal lower than the top public law schools, much attention appropriately is being given to the rising cost of legal education and the growing student debt levels of law school graduates nationally.
In order to begin to begin to address this situation in a meaningful way, I am writing to let you know that we are limiting our tuition increase for the 2012-13 academic year to 3%, our smallest percentage tuition increase in at least the past 40 years, if not our entire history. This rate also coincides closely with current and recent measures of inflation.
This is no panacea, of course. We are well aware that this first step makes only incremental changes on the significant historical increases in law school tuition at Northwestern and elsewhere. I am committed to address in manifest and meaningful ways the rising cost of legal education and corresponding burdens of student indebtedness. Limiting tuition increases is one step; controlling law school costs is another; and looking to our Northwestern friends in the private sector to support the Law School, even in the midst of current economic difficulties will need to be at the center of this strategy. Northwestern Law School has been a leader in so many respects. The time has come for us to be an innovative leader in addressing the challenges of the new legal economy.
As we prepare for a celebration later this week for our colleague, Marty Redish, whose influential work in the area of constitutional law and federal jurisdiction, has been a model for many public law scholars around the country, we turn the spotlight on several of our prominent public law scholars.
We begin with Professor James Pfander, a national authority on federal jurisidiction, its doctrinal vagaries and its history.
Pfander concentrates on the history of Article III and the way that history may continue to shape the operation of the federal judiciary today. In a series of papers, culminating in his Oxford press book, One Supreme Court, Pfander has argued that the framers of Article III established a hierarchical judicial system with one supreme court sitting on top. This conception of the judiciary has re-focused the debate over such disparate questions as what relationship state courts bear to the Supreme Court, what power Congress has to deprive the Court of its power to review the work of lower courts, and how far Congress can go in placing administrative adjudication beyond the oversight and control of the federal judiciary. Pfander’s most recent paper (written with a Northwestern student co-author and published in the Harvard Law Review) shows that the eighteenth century Scottish judiciary may have provided one model for the framers’ hierarchical design.
Alongside his work on history and structure, Pfander has been examining the nature of judicial office. An early paper, in the Chicago Law Review, defended the idea that the removal of Article III judges requires bicameral congressional action, namely impeachment by the House and conviction by the Senate. In a more recent paper in Michigan Law Review, Pfander argues that the framers switched from a fee-based to a salary-based compensation system for federal judges as part of an attempt to ensure limited federal jurisdiction. A working paper, due out next year in Northwestern Law Review, argues that the framers sought to eliminate the patronage power of the Chief Justice and thus provided for the appointment of inferior judicial officers not by the Chief but by the Court itself.
Pfander has written a number of papers that urge a more coherent approach to government accountability. His early work casts doubts on the Court’s expansive interpretation of state sovereign immunity. A more recent paper (also co-authored with a Northwestern student and published in the NYU Law Review) demonstrates that nineteenth century government officers sued for action taken in the scope of their employment were routinely indemnified by private bills enacted by the antebellum Congress. Such routine indemnity ensured compensation for victims, avoided the need for a regime of qualified immunity, and worked around the doctrine of sovereign immunity. Pfander has also raised questions about the Court’s approach to so-called Bivens claims, suits against federal officers for constitutional torts. One article argues for parity in the treatment of state and federal officials; another published in the Columbia Law Review argues that the Court should allow nominal claims to proceed without a qualified immunity defense, thereby permitting individuals to obtain an adjudication of their constitutional claims in a world of legal uncertainty.
Pfander has also been trying to solve practical problems of appellate jurisdiction. One paper published in the Pennsylvania Law Review argues that the Court itself should conduct supervisory review of remand orders and eliminate the routine appellate review of such orders that now occurs in the circuit courts. A second paper suggests the novel idea that Congress should authorize interlocutory review of important and potentially dispositive lower court orders by agreement of the parties. Such agreed-upon appellate review could help settle cases in which the parties disagree about the likely resolution of a controlling legal question.
Thoughtful response by two of our able law students.
Some extremely interesting, powerful comments on the Henderson argument from my able empirical-legal colleagues:
UPDATE: I have taken two of the posts which were written anonymously.
From NU Prof. Kate Litvak:
In short, the averages he is discussing cannot tell us anything useful. The main problem is selection effects combined with the level of data aggregation: (1) no individual-level data on hired/promoted lawyers; (2) all top-250 law firms are grouped together; (3) all non-T14 law schools are grouped together.
Let’s see how this matters for his explanations from the blog post:
- Selection effects. Bill’s story: best student from a lower-ranked school is better than a midrange student at T14, and the better associate eventually gets promoted. Maybe, but he didn’t actually show any such thing. For this, he needs data on class standing or other quality measure of young lawyers. More importantly, he needs to compare promotion rates within each law firm. For example, his methodology cannot rule out the following alternative hypothesis: many Biglaw firms (especially smaller ones or with offices in smaller legal markets) use merit-based criteria to hire only T-14 associates, and then, leave some spaces for the kids of important local people, non-T14 hires, who are then promoted on the same non-merit-based grounds. Generally, there are many reasons to hire/promote a person who has less-than-stellar formal credentials; hidden high ability is only one of those reasons.
- First jobs. Bill’s story: T14 grads are more likely to start at firms with lower promotion rates. Probably true, but again: (a) he has to show it by looking at promotion rates within each firm, and (b) if this explanation is correct, his overall results might be entirely spurious. As an illustration: a well-known old study of graduate school admission rates at Berkeley. It found that women’s grad school applications are rejected at a much higher rate than men’s applications, which signaled sexism. But when they looked department-by-department, men and women had identical admissions rates. The reason is: women disproportionally applied to humanities, with high rejection rates, while men applied to hard sciences, with low rejection rates. The “disproportional admissions rate” result was a statistical gaffe, caused by the failure to disaggregate the data by departments. Same is likely with Bill’s results: within each law firm, T14 grads might have significantly higher changes of being promoted; it’s just that T14 grads are more likely to work at firms with low promotion rates. Bill also mentions that T14 grads are less likely to do corporate law; if promotion rates differ depending on the legal field, a proper study must control not only for the law firm, but also for the legal field. This might become problematic due to the small sample size, which is one of many reasons to use longitudinal data, instead of cross-sectional, as this one.
- Inter-generational privilege. Bill’s story: T14 grads are more likely to be independently wealthy and don’t want to work hard. Maybe, but a pure speculation at this stage, and cannot be tested through aggregate data. For example, even if T14 grads are disproportionally wealthier than the rest, it doesn’t mean T14 grads who accepted grueling jobs at Biglaw firms are wealthier – the rich ones might be moving to low-stress or high-prestige non-Biglaw environment immediately after graduation. Even if individual-level data is not available, this is where disaggregating law firms into smaller chunks would really help. A rich grad might well take a job at a top-10 firm just to see what it’s about, but why take a job at a firm #200, especially outside glitzy metropolitan areas?
- Influence of admissions criteria. Bill’s story: T14 grads are “academics” and lack life experiences; life experiences increase one’s chances of partnership. This strikes me as dubious. It’s not obvious that a top grad of a low-ranked school (the one most likely to be hired by Biglaw on the merits) would be the “significant life experience” type. I would expect that person to be among the most academic at their school, and likely more academic than a midrange T14 grad working at the same firm. In any case, this too cannot be tested with aggregate data; simple individual-level data like age might be a decent proxy for life experience. Even if individual-level data is not available, this is where disaggregating non-T14 into smaller chunks would help: a Vanderbilt or USC grad is not likely to have more life experiences than a Georgetown grad, but a grad from tier-4 might.
- A better plan “B”. Bill’s story: T14 grads have better alternatives, so they don’t try hard. Again, maybe, but has to be tested on individual-level data (looking at where Biglaw alums got their next jobs); or at least by looking at rates of high-prestige non-Biglaw jobs for grads of each school and the rates of high-prestige post-Biglaw employment for alums of each law firm; or at the very least, by breaking down both law firms and law schools into smaller chunks for study.
And from NU Prof. Max Schanzenbach:
What to make of Bill’s piece? I don’t think it tells us much. Bill is looking at the conditional probabilities. What is the chance making partner CONDITIONAL on being hired as an associate. If firms are willing to take fewer risks on Loyola students (e.g., we hire the number one at Loyola and that’s it), then it’s not surprising that the conditional probability is higher. In my view, this result likely suggests a bias in favor of T14 students (perhaps for rational reasons regarding search costs), and an even stronger reason to attend an elite school if one’s goal is to be a top 250 law firm partner.
Comments (non-anonymous welcome)
This post by some empirically-minded law profs is getting some buzz. The principal claim is that young lawyers from lower-ranked schools will be more likely to make partner than those from higher-ranked schools.
This conclusion (with the notable data caveats described in the post) is followed by various speculative explanations.
More on these claims shortly, but, for now, I want to highlight one of the explanations noted: that admissions criteria deemphasize the kind of skills that yield post-grad success in big law firms. Not nearly true of Northwestern Law’s admission program, a program that zeroes in, through interviews and work preference, on precisely these set of skills.
Stay tuned for another post on this subject.