The Blog of John Henry

A comment on Nick Barber’s thoughts on “The Legal Academic in the Internet Age”

How is the internet going to change the ways in which legal academics teach, publish, and engage with the outside world in the medium term? Nick Barber addresses this question in a provocative post over at the UK Constitutional Law Blog. Blogs, he argues are the way of the future, while both social media should be resisted, and traditional lectures are destined for the dustbin of history. You might think that as a blogging enthusiast I would agree, or at least find the idea exciting. But prof. Barber doesn’t think that the future belongs to any old blogs; he has a specific type of blog in mind ― professional, edited outfits (like the UK Constitutional Law Blog itself), which will fuse with more traditional journals. A future in which such outlets are the dominant medium does not strike me as blogging utopia at all.

I will not say too much about prof. Barber’s views on the future of teaching. He thinks

that lectures will increasingly be replaced by shorter, fifteen or twenty minute, vlogs that will be designed for the medium; that is, they will consist of lecturers talking to camera, perhaps with slides incorporated into the broadcast. A series of these vlogs will then combine to cover the material that used to be covered in the lecture.

This will be both less demanding for the lecturers, who will be able to re-use recordings, and less boring for the students, who will be able to consume them in more digestible chunks and at their own pace. Prof. Barber thinks that by replacing lectures, “the rise of vlogs will free up time for more interactive teaching” to small groups of students. It’s a tempting vision, as I’m planning my lectures next term to classes of, potentially, 270 and 60. But whatever the chances that it will be realized at Oxford, where prof. Barber teaches, or at similarly well-heeled institutions, I don’t see how law schools like the one at which I am will have the resources to replace my four hours of pontificating to 330 students by the appropriately astronomical number of hours needed to afford them all small group teaching.

Similarly, I will not say too much about prof. Barber’s dismissive attitude to social media (i.e. Facebook and Twitter), which he says “encourage folly and, worse, they then go on to preserve this folly for posterity”. Steve Peers has responded with a Twitter thread that points out that Twitter, in particular, enables people to interact over the barriers that separate different professions (or branches of the legal professions) and academic disciplines, which (at least sometimes) makes it possible for conversations that would otherwise happen within these different groups to be enriched, for the benefit of all involved. I would only add that social media also help break down geographical barriers in a way that not only traditional publications, or even good old email, do not, and also the barriers of rank or standing within each profession or discipline. I understand why some people will prefer to heed prof. Barber’s call for caution, and do not agree with people who occasionally come close to saying that every academic ought to be on Twitter, but I am pretty sure that many will find it useful. I know I do; indeed I think that I have benefited a great deal from my (initially very reluctant) embrace of that medium. (To give just one example, I’m not sure if my collaboration with Benjamin Oliphant would have come about if we hadn’t been interacting on Twitter, as well as reading each other’s blog posts.)

I want to comment in some more detail on prof. Barber’s views on the present and future of blogs. Prof. Barber is enthusiastic about “the emerging capacity of blogs to permit academics to engage with important constitutional issues as they unfold”, without being constrained by the “glacial” pace at which articles, even short and topical ones, in traditional publications come out. Moreover, ” the rise of the blogs has also brought with it a welcome relaxation of style”, allowing scholars to engage with lay audiences. At the same time, as with social media, prof. Barber worries that

[t]he ease and speed with which material can be published increases the risk of error and of ill-considered scholarship. This may be partly due to the laziness of scholars but it is, also, the product of a collective pressure to publish quickly.

Half-baked or outright mistaken arguments that would never have made their way onto the printed page can appear in blog posts, and live on forever in cyberspace.

Prof. Barber sees the solution to this problem in the professionalization of blogs. “We need”, he argues, “to create structures that will make use of the speed and accessibility of the Internet whilst avoiding the risks of sloppy scholarship and blow-hard opinionizing.” Already, prof. Barber says, “[t]he best law blogs, like journals, now play an editorial role, reviewing and critiquing submissions before they are posted.” Whether these structures develop as part of what are now blogs or what are now journals, they will cause the quality of blog output to improve. This, in turn, will lead to academia finally crediting blog posts similarly to more traditional publications for the purposes of promotion, and also cause “the era of the personal blog as a serious academic enterprise [to] come to an end”, as independents are out-competed on quality by “edited blog[s]”.

Unlike prof. Barber, I do not see these developments as something to be wished for. It’s not that I’m against quality, of course ― I try to achieve it with my own posts here. But I know that I occasionally produce bloopers, and suspect that I am not quite alone in this. So I can see the attraction of prof. Barber’s position ― if we think that the most important thing for us (as scholars or as lawyers) is that everything written on law be of high quality. But I don’t think that this is the only thing that matters, and I’m afraid that rather more will be lost ― and perhaps less gained ― in the quest for quality than prof. Barber cares to admit.

For one thing, I’m skeptical about the ability of blogs to “play an editorial role”, at least a meaningful one, in a timely fashion. As they become more institutionalized, less the preserve of enthusiasts who pour the hearts into blogging without counting the hours, and especially if the volume of contributions (and perhaps the competition to get published) increases, as prof. Barber expects that it will, edited blogs will be likely to acquire some of the less pleasant characteristics of the journals, the “glacial” pace among them. The more quality assurance one wants to have ― the more editing and stages of peer review ― the slower the process becomes, until the only time savings over the traditional journals are those made by eliminating printing.

More importantly, the institutionalization of blogs and the disappearance of independent blogging would likely close down an important avenue that is now available to people who lack the exalted status and distinguished credentials of prof. Barber and his fellow contributors to the UK Constitutional Law Blog for communicating their ideas about the law. When I started this blog, I was a graduate student with exactly one academic publication to my name. Nobody would have given me a platform in a serious edited blog. But less than three years later, Double Aspect was named the best law blog in Canada. Paul Daly had a much fuller CV and a higher perch when he started Administrative Law Matters, but he too was “only” a junior academic at that point. Yet within a couple of years his blog was an indispensable resource on public law, and he also won (well deserved, in his case!) recognition as the best in Canada. Independent blogging democratizes academic and professional conversations about law by allowing upstart voices to join in and, just possibly, be heard if they have something interesting to say.

Independent blogging can also be an avenue by which unorthodox ideas that might not pass the test of editorial quality control can be developed. I doubt that any blog editor would have cared much for my early musings about originalism. Two peer-reviewed articles later, I can say that they were not as silly as they might have seemed at the time, though of course the process of working on those articles with Mr. Oliphant involved developing and clarifying my (and his) initial ideas a great deal. But without those early unedited musings, the articles would not have happened. And, to repeat, if I didn’t have my own blog, and had to count on the good will or open mind of an editor ― who would, in the nature of things, be an established, and more or less orthodox, academic ― to get them published, I doubt that they would ever have seen the light of day.

I also think that personal or (relatively) small-group blogs (such as the Volokh Conspiracy or Balkinization) have another advantage over institutional ones: they require, and thus select for, commitment. Institutional blogs make it possible for any given person to contribute at large intervals, perhaps only sporadically. That can of course be a good thing ― people who only sometimes think they have something to say in blog post form have an outlet for those occasions. (For this same reason, I think guest-posts are generally great, and am delighted to have hosted a number of them of the years.) But I do think that there is something to be said for committing to a platform that leaves you no cover and forces you to blog not just now and then, but week in and week out. It’s bloody hard ― as my occasional bouts of silence show, even maniacs like me sometimes find it impossible ― but as with so much else, there are benefits to regular practice. It makes one develop one’s voice and style; it allows one to cover a variety of subjects in some depth; it provides one with a well-developed record of one’s observations and opinions that can be useful for other purposes (like teaching, or simply keeping track of legal developments) in the future.

Even if the personal blog cannot compete with a professionally edited platform for high-level scholarship on pure quality, it has its own, different value. It can be a way for new and rebellious voices to enter into and enliven the conversation. It can be a proving ground for people and ideas. It can be the record of a coherent or developing thought process. In can, in short, be many things that a edited blog cannot. Call me a blogging romantic if you will,

But before I let your steam drill beat me down,
I’d die with a hammer in my hand, Lord, Lord,
I’d die with a hammer in my hand.

 

Nurturing Conventions?

The idea of constitutional conventions, familiar in the Commonwealth since the times of A.V. Dicey, has recently been attracting some attention from American scholars. Gerard Magliocca is apparently using it in a forthcoming article. And, most recently, it appears in an intriguing guest-post by Miguel Schor at Balkinization. Prof. Schor argues that conventions are important ― an obvious point to us, but not to Americans, who tend to conflate the constitution and “the Constitution,” i.e. the written constitutional texts (and, maybe, judicial interpretations of that text). He uses the example of what he suggests was a convention that prevented Congress, or a political party in Congress, from using the statutory debt limit (and the threat of default) from extracting policy concessions from the President or from partisan opponents.

Prof. Schor then suggests that

[t]he supposed wall between the Constitution and politics means that the Supreme Court [of the United States] lacks the intellectual tools to play a constructive role in buttressing the political conventions necessary for democratic politics to flourish

― for example, by intervening to stop partisan gerrymandering. In his view,

[t]he [Supreme] Court should seek to nurture the emergence of conventions that facilitate political competition. To that end, we, as scholars and teachers of constitutional law, need to find a way to educate law students about the importance of political conventions.

Now I’m all for talking talking about constitutional conventions as much as possible. Most of my published output so far does just that. And I agree that courts ― not only in the United States, but also in Canada (and elsewhere in the Commonwealth) ― seem to lack the intellectual resources to deal effectively with the political dimensions of conventions; in my article about the “Jurisprudence of Constitutional Conventions,” I attempted to supply some such resources. (The journal’s copyright terms prevent me from posting the actual paper on SSRN. I am happy to share it with those interested though.) However, I am skeptical of the idea that courts can “nurture the emergence of conventions,” whether intended to facilitate political competition or to further some other constitutional principle.

Constitutional conventions are entirely the creatures of politics. As Fabien Gélinas and I put it in a recent article,

[c]onventions are rules of political practice, which emerge when the rules of constitutional law are not or are no longer in accordance with, or sufficient to give full effect to, “the prevailing constitutional theory” or values. Faced with a discrepancy or a gap between law and constitutional values, political actors work out solutions that enable them to give effect to the latter without openly contravening the former. As the solution adopted by one political actor is imitated by that actor’s successors, expectations that it will be similarly imitated in the future develop, with each precedent reinforcing these expectations. The combined forces of the values to which the practice gives effect and of the expectations that it will be followed make it binding. Constitutional conventions are indeed the pearls of the constitution, formed as the mollusk of the political process responds to the irritant of inadequate law or to the stimulus of a deliberate political decision, by enveloping it in layer after layer of the protective coating of precedent, until its very existence might be forgotten except by those who know that it must once have been there.

What this means is that courts cannot really “nurture” a convention in its infancy. It will crystallize depending on the political actors’, not the judges’ choices. At most, a judicial decision can supply, as we put it, the “irritant” that will cause a convention to appear, by pointing out to the political actors the state of the law which they will regard as unacceptable in light of the “constitutional theory” or values of the time.

However, what courts could ― but refuse to ― do, however, is enforce an already developed convention. Now, maybe that is what prof. Schor actually means, but to me “nurture” and “enforce” sound like very different things. One nurtures something that is not yet fully mature. But for a court to be able, even if it is willing, to enforce a convention, the convention has to have reached a (considerable) measure of maturity. Indeed, there are dangers in overhasty judicial enforcement of conventions. One is the risk of uncertainty of an unsettled convention. The skeptics of judicial enforcement of conventions, from Dicey on, have always insisted that conventions are not sufficiently certain to provide meaningful legal standards. As I explain in the “Jurisprudence of Constitutional Conventions” article, I think that this is not always so, but this point is surely more powerful with respect to emerging conventions than to stable ones. Judicial intervention in the field of convention carries another risk too, that of preventing political practice from adjusting to the unsettled needs or changing “constitutional theory” of the day. By enforcing a convention too soon, a court may prevent it from accomplishing its function of making constitutional norms correspond to the prevailing constitutional values. 

Prof. Schor’s call on courts to nurture constitutional conventions thus seems to me at odds with their true nature. However, more academic ― and judicial ― engagement with conventions in the United States would be very interesting.

Real Intellectual Life

I have recently come across a great paper by Mark D. Walters, “Dicey on Writing the Law of the Constitution”, (2012) 32 OJLS 21.  (UPDATE: The original link is no longer working, alas, and the paper is no longer freely accessible.) It’s not brand new (it was published last year), but as prof. Walters, unfortunately, doesn’t post his work on SSRN, it might have escaped the attention of fellow constitutional law nerds and Rule of Law enthusiasts, as it escaped mine. The article tries to provide put A.V. Dicey’s work, especially his classic  Introduction to the Study of the Law of the Constitution, in the intellectual context of its author’s “real intellectual life,” a glimpse of which prof. Walters got by studying Dicey’s papers, letters, and draft manuscripts.

Dicey’s work has been touted as the epitome of Victorian jurisprudence ― of all that was good or all that was bad about it. But, says prof. Walters, it has more often than not been seriously misrepresented. It is not, as is often believed, an academic codification of British constitutional law; Dicey’s aims for his project were at once less and more ambitious than that. Nor is it an example of dry, authoritarian Austinian positivism; Dicey’s jurisprudential views were more complex than those of his contemporaries.

According to prof. Walters, Dicey aimed not at presenting a detailed codification of an commentary on the entire constitutional law of the United Kingdom, but rather at presenting its most salient principles. He was “an artist” rather than a surveyor, in the words of a contemporary who, for his part produced a detailed (and, so far as I know, now entirely forgotten) survey of constitutional law. Nevertheless, it was ― unusually for a time which had seen the constitution examined from the standpoints of politics and history but not law ― a thoroughly legal work. But, for Dicey, a study of law could profitably look at principles, the “spirit” of a body of law, and not only the details of its rules.

Indeed, Dicey’s jurisprudential views and methodology are, according to prof. Walters, much misunderstood. Though he regarded himself as a lawyer rather than a historian or a political critic, his approach to law was not limited to looking at the rules of his own time and place. He sought to enrich his and his readers’ understanding of the law by taking at times a comparative approach, and sometimes by considering history. Furthermore, his account of law was not that of a neutral and dispassionate observer. Dicey thought that the law had a normative value, and gave a normative account of it. Indeed, prof. Walters suggests, albeit tentatively, that if we had to assign to Dicey the label of one of today’s jurisprudential schools, he would be a Dworkinian interpretivist rather than a positivist.

A final important point that prof. Walters makes concerns Dicey’s approach to legal scholarship as literature. “[T]here ought,” Dicey wrote, “to be no divorce between law and letters.” An academic lawyer should write not only, and indeed not mainly, for other academic lawyers, but for other educated citizens who happen to take an interest in the law. His work should be accessible and readable; not merely readable, indeed, but aesthetically enjoyable as well as instructive.

Although prof. Walters does not say this, I think that this last point too allows us to draw a parallel between Dicey and the late Ronald Dworkin. He too sought to reach out to audiences beyond the confines of legal academia (notably through his New York Review of Books columns); he too, I think, aspired to write in a way that would be appealing and compelling to a lay public. Whether he succeeded is probably debatable, but one need not like the result to think the attempt noble. In this, if in nothing else, I think that legal scholars ought to learn from Dicey ― and from Dworkin. (This blog, I daresay, has the same ambitions. Whether it succeeds is, of course, for you to judge, and I hope that the literary standards by which you do so are not too lofty.)

Dicey has been both an idol and a bogeyman for constitutionalists and legal philosophers; for some, such as yours truly, he has been both. Prof. Walters succeeds, I think, in making him a bit less of the latter, and more of the former. More importantly, it shows that neither of these labels is quite warranted. Dicey, as any great scholar, had a rich intellectual life, which ensures that he defies such easy categorization. And our own intellectual lives will be richer for paying attention to his.

Risk and Reward

I wrote recently about whether scholarship (in philosophy and in other areas, such as law) can make a difference, and whether this matters. As it happens, PrawfsBlog has been running an interesting series of interviews with scholars whose work has been cited by the US Supreme Court, asking them, among other things, what they thought of the alleged uselessness and irrelevance of legal scholarship. Some say scholarship matters, though courts will not admit to being influenced by it. Others cheerfully say that most scholarship is, indeed, irrelevant ― but add that that’s fine. Wille Baude is in the latter category, and he has a great line by Frank Easterbrook’s article called “What’s So Special About Judges”, 61 U. Colo. L. Rev. 773 (1990), as evidence:

 A free mind is apt to err ― most mutations in thought, as well as in genes, are neutral or harmful ― but because intellectual growth flows from the best of today standing on the shoulders of the tallest of yesterday, the failure of most scholars and their ideas is unimportant. High risk probably is an essential ingredient of high gain. (777)

This brings to mind my own favourite line by prof. Easterbrook (as he then was), from “Vertical Arrangements and the Rule of Reason”, 53 Antitrust L.J. 135:

We live in a world where knowledge is scarce and costly, ignorance rampant. (145)

If “knowledge is scarce and costly,” then producing a bit more of it is a “high gain.” So it makes sense that an investment in its production is always a speculative one. Judge Easterbrook, at least, seems to subscribe to what I described, in my previous post, as the “venture capitalist” theory of the value of scholarship (as opposed to the “stonemason” theory, according to which each researcher adds a little something to knowledge, which is thus built up one small element at a time).

It is ironic, of course, that academia turns out to be a risky enterprise. Those who enter it probably see it as safer than business or even, possibly, the practice of law. But it all depends on what risks one considers. The risk of being a failure, in the sense of not producing anything worthwhile, might be higher in academia than in many other lines of work. Then again, this risk has its rewards. Just ask the people whose scholarship is cited by the Supreme Court.

Why Bother?

Does research in philosophy make the world a better place, beyond the pleasure it gives one? There was an interesting discussion on this topic on the Leiter Reports (in the comments). Though I’m two weeks late to the party, it’s worth saying a few words about it. Although the discussion there focused on philosophy, I think the general principles one can gather from it are more widely applicable ― to legal theory, for instance (which is why I found it so interesting), but perhaps, to some extent at least, to just about any sort of abstract research.

The danger in any such discussion lies in the fact that human beings are generally poor judges of their own work, both of the significance of the enterprise they are engaged in to human affairs and of the quality of their own contribution to this enterprise. Most overestimate the importance of what they do; some underestimate it; nobody can be objective. Philosophers might be a bit better than others at avoiding biased judgments, but I doubt that they are much better at it.  At the same time, just because one’s judgment is in one’s favour, it is not necessarily wrong.

Be that as it may, a strong minority of the participants in the discussion argue that philosophical research does not actually make the world a better place. It is, often by design, too remote from practical concerns to make a difference; and the people who make a difference are not interested in philosophy. Indeed, says John Gardner, this might be for the best, because much philosophical research “is ripe for abuse. It is better not to have any effects than to have predictably unwelcome effects through the kind of people who are likely to put my work to use.” You’d think the man is a nuclear physicist rather than the Oxford Professor of Jurisprudence. But the most caustic version of the skeptical position is those who say that academic philosophy is basically a waste of good brains, and those who are tempted by it ought to do something else that would be of more tangible benefit to humanity.

Most, though, are not so pessimistic, and do in fact believe that philosophical research makes the world better in one way or another. One commonly cited reason is the indirect contribution research makes by making the researcher a better teacher ― and teaching, in turn, is what really makes the world a better place. But many say that research itself is (also) valuable. There are, so far as I can tell, three main claims about why this might be the case.

The first is that doing philosophy is intrinsically valuable ― that, to quote prof. Gardner again, “the world is a better place ― constitutively ― just in virtue of containing more good philosophy, and more good philosophers.” Or, as a scientist quoted by Richard Baron answered when asked why the United States should bother spending money on particle physics put it, “[i]t has nothing to do directly with defending our country except to make it worth defending.”

The second and third justifications of research in philosophy both claim that it is instrumentally valuable because it helps us get (closer) to Truth. The difference between them is in how they perceive the contribution each individual researcher might make. The first claim about the instrumental value of philosophical research is that, although the odds of any individual philosopher of making a valuable discovery are very low indeed, a few will get lucky. Philosophy, on this view, is a bit like venture capitalism ― it involves lots of investments, most of which will have to be written off, but a few of which will. hopefully, yield returns rich enough to make up for the rest. The second claim is that, on the contrary, an individual philosopher’s work does make a contribution, albeit small, and that we get closer to Truth as these small contributions add up. As Craig Duncan puts it, a philosopher a “medieval mason helping to build a cathedral. An individual mason’s contribution was doubtless small, and he likely did not live to see the conclusion of the project and witness its full value” ― but that doesn’t mean it hadn’t any.

For my part, I find all three of these claims somewhat appealing, though perhaps the “venture capitalist” one more than the others. It is consistent with Sturgeon’s Revelation (a.k.a. Sturgeon’s law), which holds that “ninety percent of everything is crap.” There seems to be no reason to be reason to believe that it doesn’t apply to philosophy, or jurisprudence, or any other area of academic research. But the revelation’s universal applicability means not only that much of the philosophers’ collective output is going to be worthless, but also that they would not necessarily be better occupied at anything else, and that their collective contribution, like that of any other profession, is to be judged by small fraction of non-crap that it produces. (Of course, this is no excuse for the individual who consistently only produces crap ― he or she should indeed try to find something else to do. The point only holds for groups.)

I will end with two similar quotes from very dissimilar economists.

The first is a well-known bon mot from Keynes’s General Theory of Employment, Interest and Money:

The ideas of economists and political philosophers, both when they are right and when they are wrong, are more powerful than is commonly understood. Indeed the world is ruled by little else. Practical men, who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist. Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years back.

The second is from Milton Friedman’s introduction to a 1982 edition of his Capitalism and Freedom:

Only a crisis—actual or perceived—produces real change. When that crisis occurs, the actions that are taken depend on the ideas that are lying around.

Despite a difference in emphasis (it would be too much to expect Keynes and Friedman to quite agree!), the point that both make is that ideas matter, in everyday life (so Keynes), but especially so in times of crisis (so Friedman). And I am pretty sure that this is true not only of ideas on politics, policy, and economics, which both had in mind, but also of those on ethics, law, and any number of other “abstract” areas of inquiry. Good ideas can make the world a better place.