Various colleagues and readers have asked why I'm not participating in this conference at HLS. Paul Caron kindly invited me, and while I thought at first I'd do it, I decided in the end that I was too busy and that I didn't really want to attend a conference on what strikes me as a topic of no intellectual interest. My colleague Kate Litvak says the sensible things here about blogging and scholarship, to which one might only add (as Kate and Larry Solum have noted) that blogs are useful for getting actual scholarship into circulation (think of Caron's tax blog or Solum's Legal Theory Blog), often via links to SSRN. The other main limitation of blogs as forums for serious scholarly debate--tactfully not noted by Kate--is that only a miniscule number of first-rate legal scholars in any field actually blog on scholarly topics; indeed, if you subtract the Chicago faculty blog and Balkinization, "miniscule" may overstate the number of leading lights in their fields who blog in their areas of scholarly expertise (you can probably count the remainder on one hand). I find it hard to see how blogs can have much significant scholarly impact when the most significant scholars rarely participate in the forum, or, at least, rarely participate for scholarly purposes.
Blogs are great for circulating information of professional interest (Solum's Legal Theory Blog is the model on that score), for discussion of intellectually superficial topics like politics and current events, as well as for ranting and venting. Their impact on scholarship is minimal, at best, which is probably a good thing.
UPDATE: Here's two cases in which scholarly expertise was brought to bear on matters of political importance--so cases somewhere inbetween the blogging purposes considered above, and cases which certainly bring credit to the medium: Michael Froomkin (Miami) on the torture memos (one instance here) and Eric Muller (North Carolina) on crytpo-fascist Michelle Malkin's whitewash of Japanese internment. First-rate stuff that anyone would have been proud to have written, and the Internet certainly made it possible for this well-informed, scholarly work to reach a relatively wide audience quickly.
Dean Richard Revesz has issued the following strong statement regarding the unbelievable Defense Department surveillance of Law School activities, including at NYU:
Recently released documents from the U.S. Department of Defense confirm prior media reports that, in the name of investigating terrorist threats, government agencies have monitored activities at law schools throughout the country, including NYU School of Law. The monitored activities involve protests of the military's policy against hiring gay and lesbian law students for the Judge Advocate General Corps or other legal positions with the armed services. These protests have occurred primarily during visits to our campus by military recruiters.
These reports are both distressing and disappointing. They are distressing in that they reveal disrespect for the traditional role that universities, and law schools in particular, play in providing an environment for critical thought and robust discussion of socially important issues. Government surveillance of those involved in peaceful and Constitutionally protected activities, including forums in which all sides of the debate about military hiring policies are represented, can only chill the conversation that universities are obligated to foster.
The reports are disappointing because they reveal a remarkable misallocation of our nation's resources. At a time when security concerns are paramount in the minds of all Americans, especially New Yorkers who have suffered the consequences of security lapses, we are disheartened to discover that our officials deem it appropriate to dedicate their scarce resources to the surveillance of students whose objective is to increase opportunities for capable men and women to serve their country. Equally disappointing is the mischaracterization of the participants in these protests. The released reports describe the participants as potential 'vigilantes' who might foster physical harm or vandalism. In fact, student protestors- while making their views clearly known - have consistently conducted themselves in a peaceful manner and have worked with security officials at the University to ensure that their protests do not interfere with our academic mission. As a result, these protests have enjoyed the support of the faculty and administration of the law school.
The Solicitor General of the United States recently recognized in the oral argument in Rumsfeld v. FAIR that law schools 'could put signs on bulletin board[s] *, they could engage in speech, they could help organize student protests.' It is unacceptable that such protest activities, which lie at the core of the values that the First Amendment is designed to protect, should subject students to surveillance designed to combat terrorism. And it certainly seems ironic that precisely the activities cited by one part of the Executive branch - the Justice Department's Solicitor General - as supporting the government's legal case should be viewed by another part - the Defense Department - as some sort of threat.
NYU School of Law is, of course, pleased to cooperate with all government agencies, including the military, in pursuing the legitimate objectives of law enforcement and counterintelligence. But the collection and retention of information about demonstrations does not fall into this category, as was recognized by the Deputy Under Secretary of Defense for Counterintelligence and Security in a letter to Senator John Warner. We object to this abuse of the government's authority and urge an immediate cessation of such activities and the purging of the records. We also insist on knowing the scope of the government's monitoring of the activities of students and personnel at the School of Law. Towards this end, we have filed a request under the federal Freedom of Information Act. We will consider what subsequent steps are appropriate after reviewing the results of that request.
If readers know of other law schools affected or of statements by other law school Deans, please post that information in the comments. No anonymous postings.
Michael Byers, an expert in international law, holder of a Canada Research Chair at the University of British Columbia, and previously a law professor at Duke, wrote the following interesting opinion piece in a Toronto newspaper:
”This is the first time I've met someone who wanted to do that.“ The U.S. immigration officer's southern drawl, so out of place in the Vancouver airport, was accentuated by incredulity.
A "green card," which is actually off-white in colour and called a Permanent Resident Card, provides full rights to enter, live and work in the world's most powerful country. It conveys most of the advantages of U.S. citizenship, so much so that it can be traded in for an American passport after just five years. Yet there I was, 4½ years after I had acquired it, asking for my green card to be taken away.
Acquiring U.S. permanent residency is an arduous process, involving blood tests, chest X-rays and numerous documents, including police certificates attesting to a crime-free past. Even with a prominent sponsor, Duke University, it had taken me three years....
I was on my way to a conference in San Diego when I surrendered my green card. The next morning, out for an early run, I saw scores of Mexican men tending lawns and flowerbeds. Later, a woman from Guatemala cleaned my hotel room. I remembered one of my grad students at Duke, now a law professor in Mexico City, explaining that most of these labourers have forged social-security cards that are convincing enough to protect their employers from the police, while providing no protections for the workers.
Six years ago, Globe and Mail columnist Jeffrey Simpson estimated that 660,000 Canadians were living and working illegally in the United States. Most Canadians blend in easily. But after Sept. 11, 2001, fear replaced curiosity as the standard response to things unknown. Before 9/11, my wife's English accent often generated a friendly response, including the comment "You sound just like Princess Diana." After the attacks, the warm chatter gave way to a strained silence.
At least my princess had a green card and was, therefore, on the legally advantageous side of the divide between "us" and "them." Thousands of men of Arab ethnicity were rounded up and either detained or deported without charge or access to lawyers. Significantly, none of them were citizens or permanent residents of the United States.
Of course, even U.S. citizenship does not provide the protections it once did. In 2002, the Bush administration jailed two Americans without charge or access to lawyers, in direct denial of habeas corpus, a common-law principle that dates back to Magna Carta. And then there is the secret, unconstitutional wiretapping program....
At the secondary screening, I was greeted by an immigration officer whose name tag and features suggested Vietnamese origins.
"Which form should I use?" he asked his supervisor. The supervisor, a stout man with a mid-western accent, gave a world-weary sigh. "Voluntaries get the short form."
It took 45 minutes to complete the short form. It was an entirely business-like procedure: No small talk, no smiles. At one point, I commented on the complexity of the process. He said, "Well, this is a big deal. It's like getting married."
No, I thought. It was more like getting divorced.
My wife and I had moved to North Carolina in 1999. The stock market was booming, most Americans felt prosperous and secure, and Bill Clinton -- despite Whitewater and Lewinsky -- was still capably in charge. It seemed obvious that one of two smart, experienced, open-minded internationalists, Al Gore or John McCain, would follow in January, 2001.
But then we were amused, perplexed and finally disgusted at the dirty tricks deployed in the 2000 election campaign, first to defeat Mr. McCain, and then to steal victory from Mr. Gore. And we felt nothing but horror as the Twin Towers collapsed, knowing not only that thousands of lives had been lost, but that Mr. Bush's neo-conservative advisers would seize their chance to plot a militaristic course.
My instinctive response was to put words to paper. Five days later, on Sept. 16, 2001, my article, "The hawks are hovering. Prepare for more bombs," appeared in London's Independent on Sunday. I continued to write, almost exclusively for British papers, chastising the Bush administration for its unnecessary violations of human rights and international law.
Needless to say, my opinions attracted considerable hostility, all the more so because I was expressing them from within a conservative law school at a conservative university in the very conservative South. I stood my ground, but it wasn't easy. And then it occurred to me: The United States wasn't my country; it wasn't a place for which I wanted to fight. My thoughts drifted northward, to the place where my values had been forged.
Within the parochial boundaries of American political discourse, it may surprise some to see Duke described as "conservative," though it is plainly apt with respect to the real issues at hand.
UPDATE: Here's a gem of a comment from that bastion of "thoughtful" right-wing legal commentary, The Volokh Conspiracy, in response to this article:
[Quoting another commenter] "If you don't remember the post 9/11 roundup of Arabic men who were deported, you weren't paying attention."
It is too bad that the US government waited until after there were 3000 dead Americans before performing that salutary bit of social hygine.
Michelle Anderson (criminal law, family law, feminist legal theory) at Villanova Law School will be the new Dean of the City University of New York School of Law, located at Queens College. The CUNY press release is here.
The finalists for the Deanship at the University of Southern California, I have heard from a colleague in Los Angeles, are: Alexander Capron (USC), Jody Kraus (Virginia), Carrie Menkel-Meadow (Georgetown), and David Wippman (Cornell). Kraus and Wippman are also finalists here at Texas.
This is an odd piece, and I wonder about its accuracy (and not only because it's obviously silly to describe Ronald Dworkin as "the world's foremost legal philosopher").
UPDATE: A reader writes, "Who is the world's foremost legal philosopher then?" I would think the uncontroversial answer is Joseph Raz, though, for obvious reasons, Dworkin has been more influential in American law reviews.