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August 14, 2009

The First FAR Distribution Was Yesterday

Over 600 resumes in the pool, fairly typical is my impression for the first distribution, and not the big spike that some had feared (practitioners fleeing a bad legal market were probably offset by those deciding to wait a year or two, given what is sure to be a weak academic job market).  There's a discussion of the FAR form going on here.

Posted by Brian Leiter on August 14, 2009 in Professional Advice | Permalink | TrackBack

August 13, 2009

Veganism, Again

So our little poll generated quite a lot of interest.   Some vegans were delighted to see a poll on this subject (though some correspondents thought it an error to lay the emphasis on diet, rather than on the fact that vegans abstain from all animal products--a fair point, though not necessarily one that would have changed the poll choices), while others were plainly offended, especially by some of the poll choices.  (More on those in a moment.)  As a rough measure of views among law-related readers, the poll was marred by some external links:  a pro-vegan website sent 100+ voters, which no doubt explains how 19% of those voting claimed to be vegans, while everyone knows that nowhere close to 19% of law professors or law students are vegans.  But some links from conservative sites may have also skewed things in the other direction slightly, though those links sent far fewer voters.  And, of course, one imagines that those who feel strongly about veganism were more motivated to vote than others.  In any case, this obviously isn't rocket science; at best it gives us a very rough picture of attitudes among those connected to legal academia.   Anyway, here are the results with over 600 votes cast:

Which statement best expresses your attitude towards veganism?
Veganism is the morally most defensible dietary regimen, which is why I am a vegan
19% (120)
Veganism is the morally most defensible dietary regimen, and I admire those who adopt it and wish I could do the same
19% (121)
Veganism is neither morally commendable nor morally wrong, but is a reasonable personal choice for some individuals to make
49% (315)
Veganism is morally indefensible, and vegans have made a serious error in adopting such a dietary regimen
6% (38)
Veganism is disgusting
7% (45)

The triumph of the "tolerant" or "indifferent" option--the middle one--isn't too surprising.    Indeed, even allowing for the skewing from the vegan-mobilized vote, I would think this little survey (assuming it bears some relationship to reality) reflects a very accepting environment for vegans in our bit of the academy.  As readers of the social psychology literature on moral judgment by Haidt et al. know, "disgusting" as a response may or may not be correlated with moral disapproval, and more often than not is not underwritten by reasons or arguments, except post-hoc.  The harshest verdict--that veganism is morally indefensible--had relatively little traction, perhaps not surprisingly since "compassion for animals" seems like a nice thing, and, more importantly, because I doubt most folks have thought much about veganism. 

Since some readers wanted to know my own view (I didn't vote), I would say it is somewhere between "a reasonable personal choice" and a moral mistake.   I would be more inclined to the tolerant/indifferent posture except for the fact--as some responses by vegans to the poll made clear--that some vegans actually believe theirs is the moral high road, that it is not just superogatory (which I also doubt) but obligatory.  To the extent some vegans believe that, then they are making a real moral mistake, or so it seems to me.   This is a complex question, but I'll try to give a simplified explanation here for why I think this; no doubt I'll make mistakes of reasoning, though not, I hope ones, that affect the conclusion.  So I beg your indulgence.

Let's suppose, plausibly enough, that sentience (the ability to experience pleasure and pain) is a morally relevant characteristic.  Since animals are sentient, it seems there ought to be a moral obligation not to inflict gratuitous pain and suffering on them (a central part of the argument against "factory farming").  ("Animals" here will be shorthand for non-human animals, though some of these points, like sentience, also apply to human animals.)  That by itself simply wouldn't demand veganism as a response, since there are lots of ways to utilize animals and animal products that do not involve infliction of pain and suffering on them.  (I'll bracket the question of gratuitousness, though it seems to me that if one is a hedonist engaged in a calculation of pleasures and pains, it is far from obvious that there are not hedonistic reasons for some infliction of pain and suffering on animals that is not at all gratuitious--but, as I said, we can bracket that issue here.)   To be sure, many kinds of uses of animals and animal products require them to be dead, but as long as they are killed painlessly, we have discharged our duties in virtue of their sentience.  Now many vegans, I take it, think that killing animals, even painlessly, is wrong, but that simply does not follow from giving moral consideration to their sentience.  Indeed, as far as I can see, killing animals does not harm them at all, as long as it is done painlessly.  As far as hedonism goes, animals appear to be the proper subject of the Epicurean line on death:   "where death is, I am not, and where I am, death is not"--ergo death can not harm me.  This is because an animal's well-being is constituted by pleasant and unpleasant experiences at particular moments (synchronic well-being), and they lack a conception of their lives going well across time (diachronic well-being), such that losing their life could be a harm to them.  (This is contestable about some animals, e.g., elephants, in which case, even within the hedonic framework, they might have a claim on not being used in any way that requires their death.)  Since animal's well-being is purely synchronic, rather than diachronic, they suffer no harm in dying or being killed (painlessly) for the Epicurean reasons.

Perhaps, though, veganism isn't to be grounded in Singer-style hedonic considerations.  Deontological or contractarian approaches, however, have a lot of trouble with showing that animals have any moral standing  (Kant certainly didn't think they had much), since non-human animals are not rational, can not promise, and can not respond to reasons.  Indeed, the strongest systematic case against the moral standing of animals, by Peter Carruthers, a very good philosopher at the University of Maryland, is argued from a contractarian perspective.  If we think about moral rightness and wrongness in Kantian terms, animals are, it seems to me, in big trouble!

Many vegans appear to think--I am going on conversations and reading web sites and some journal literature--that a principle of "compassion" and opposition to "cruelty" and "exploitation" underwrites their lifestyle.   Since most vegans are not opponents of capitalism, it is hard to know how seriously to credit this posture, but hypocrisy in application, needless to say, does not discredit the principled foundation for the lifestyle.  The difficulty is that, even putting to one side Nietzschean skepticism about Mitleid, "compassion" itself needs some kind of moral foundation or articulation.  Someone who didn't eat lettuce because it reflected a failure of compassion towards plants, or someone who thought climbing trees betrayed a willingness to exploit trees for human satisfaction would, I hope, not have much claim on our attention.  And what these examples show is that a principle of "compassion" or "non-exploitation" depends on some conception of what makes something morally important or deserving of moral consideration:  for example, sentience or rational agency.  So considerations of "compassion" don't seem to add anything to the moral arguments already mentioned.

So, to sum up, my own view is that veganism is a kind of harmless and in many ways sweet eccentricity (who can get mad about people who love animals?), but it crosses the line into a moral error insofar as people think it is morally obligatory or morally superior to non-vegan lifestyles.  I expect stating this plainly will open me up to lots of abuse, but since vegans do not, as far as I can see, have any arguments that can appeal to shared background attitudes, they probably have no choice.  As A.J. Ayer noticed long ago, "It is because argument fails us when we come to deal with pure questions of value, as distinct from questions of fact, that we finally resort to mere abuse."  (Ayer, for reasons Peter Railton remarked on many years ago, was wrong about facts, which also presuppose background agreements in attitudes, but those agreements, happily, tend to be more robust.) 

UPDATE:  Bob Hockett (Cornell) has posted a nice exposition of Velleman's argument here.  I don't, however, entirely follow his objection to it, but I do commend his explanation of the argument to interested readers who don't have time to read the Velleman paper.

Posted by Brian Leiter on August 13, 2009 in Jurisprudence, Of Academic Interest | Permalink | TrackBack

August 12, 2009

Annals of Devastating Book Reviews

This one certainly qualifies, so much so that one wonders how the book was ever published by a reputable press.  Did they not have any referees?  

Posted by Brian Leiter on August 12, 2009 in Of Academic Interest | Permalink | TrackBack

August 11, 2009

Dispatches from Iceland (from an American law professor)


Posted by Brian Leiter on August 11, 2009 in Of Academic Interest | Permalink | TrackBack

August 9, 2009

An Illinois Law Student Comments on the Mikva Commission Report

I was forwarded a copy of this e-mail sent by C. Chad Henson, a law student at the University of Illinois, to Illinois Law Dean Bruce Smith.  Since it struck me as a very astute analysis of the Mikva Commission Report about admissions, I asked his permission to post it, which he kindly granted.  The text of his message follows:

I am writing in response to the State of Illinois Admissions Review Commission (Commission) report....Though I understand you are very busy, I feel compelled to offer a brief outline of my views. While not consulted on this particular message, some of these views are shared in part by a small group of students and recent alumni who have been writing letters and posting internet messages in support of the College and its former administration. In deciding your response to the report, I hope you will take this perspective into consideration.


The Commission's report rightly recognizes [Admissions] Dean Pless's consistent, strong opposition to giving special consideration for admission to politically-connected prospectives. Under Dean Pless's continued leadership, the reduction or elimination of political influence in admissions will continue. Unfortunately, the Commission has recommended broader involvement in admissions decisions and a more formal admissions policy. According to Dean Pless and Prof. Hurd, the reason that the College originally moved to a single locus of discretion for admissions decisions was that multiple loci decrease control over incoming class statistics, which will lower the prestige of the College when it results (as it inevitably will, for obvious reasons) in decreased, inconsistent admissions standards. For this reason, while certain formal admissions procedures may increase student quality, it is important to place a large amount of discretion in Dean Pless's able hands. Full file review of law school applications is a time-honored tradition that should not be lightly abandoned. While the College of Medicine creates a "diversity index" that gives almost-explicit weight to race, I would hate to see the College embroiled in the Constitutional fight that would result from our making such a policy explicit.


The Commission also castigates Prof. Hurd for a failure of leadership in her role as Dean. In my view, the error in judgment made by the Commission on this issue dwarfs any that they may lay at Dean Hurd's feet.


First, the Commission recognizes that a Dean is subordinate to a Provost, who is subordinate to a Chancellor. As such, a Dean is obligated to acquiesce to a Provost's or Chancellor's instructions so long as they are not illegal or inconsistent with any reasonable interpretation (not just the best interpretation) of broader policy - a chain-of-command issue common to a number of organizations. Since every single instance of decision-reversal indicated in the report was conducted at the behest of the Provost or Chancellor, responsibility for misinterpretations of policy directives lies with those officers if they choose in insert themselves in the admissions process - even if it is not their direct responsibility.


Second, the arbitrary decision to examine admissions post-2002 creates a false comparison. By contrasting Dean Hurd's treatment of special admissions with your Administration’s, the Commission effectively ignores evidence that it was Dean Hurd's response to political pressures that brought down the number of special admissions to zero in the last year of her tenure and discouraged University officials from pressuring you. This, incidentally, makes it easy for your Administration to make claims about you would have acted and will act, certain that you will not face the same pressures she did due to her efforts.


Third, the Commission's claim that demanding payment for clouted admits represents "resignation rather than resistance" is deeply flawed. As anyone who has taken a basic economics class knows, given a typical demand curve, quantity demanded decreases as price increases. Prof. Hurd's choice to engage in a strategy of reduction rather than a strategy of immediate elimination is not morally problematic and is an effective strategy of resistance - especially if she reasonably believed the elimination strategy would result in harms to law school resources or direct contact between Dean Pless and Provost/Chancellor Herman. By raising the price of special admits (and keeping it high), she was able to reduce the quantity of special admits, gain resources for the school, and ensure that those special admits who were admitted were more likely to have the most value to the University (as reflected in the price the University was willing to pay for them).


Fourth, the Commission claims that demanding additional resources to offset the damage caused by special admits creates the appearance of impropriety.  This relies on wrongly comparing refusal special admits to admitting students in exchange for additional resources. Naturally, demanding payment for admits looks worse than refusing, but that makes accepting the special admits in the first place problematic, not the payment demanded. The appropriate comparison would be between accepting special admits without exacting payment and exacting payment. Given these two, I would infinitely prefer a Dean who engaged in the latter action. The former would have caused real harm to the College, encouraged increased corruption, and generally turned our College's Administration into nothing but tools of the University's.


Fifth, the Commission criticizes the tone of several e-mails for insulting the People of Illinois. For the most part, those e-mails insulted the Officials of the People of Illinois - hardly the same thing. It's like saying those who protested Bush (or Obama) are denigrating America. For the most part, Hurd's e-mails were contemptuous of the University and Government officials because their actions and character were worthy of her contempt.


Fortunately, the Commission has clearly indicated that they expect Deans to act with reasoned judgment and take responsibility for the decisions made at their institutions. This means that the decisions you make are fully your responsibility, and the pressure you may feel from the new Trustees, advisory groups like the Commission, and even elected officials does not relieve you of the moral, ethical, legal, and practical consequences of your decisions. I respectfully request that you take some or all of the following steps in response to the report, in addition to those you have already taken.


First, clearly and decisively indicate that you will not initiate and will actively oppose personnel changes at the law school in response to the report. Dean Pless worked hard to fight clouted admissions procedures, and deserves the thanks and respect of our College. Prof. Hurd also deserves our thanks and respect for her efforts to reduce corruption. Even if her strategy was sub-optimal, and I am not convinced that it was, her value to the College as a teacher and scholar remains undiminished and she has indicated no desire to return to the Dean’s Suite.  Her presence at the College, along with Prof. Moore’s and Prof. Ulen’s, initially persuaded me to accept a place here; she has undoubtedly performed that function for many other students – notably female students in a field where strong female role models are sorely lacking.


Second, if you wish to add checks to the admissions process, do so in a way that establishes automatic and minimum admissions thresholds. By doing this, you create a baseline “qualified” standard where you can reasonably claim that no unqualified applicant was admitted and a baseline “superior” standard where you can reasonably claim that no superior applicants were denied. Within these broad categories (all applicants “qualified” but not “superior”), Dean Pless should still have the maximum discretion possible, as he has shown he deserves. Right now, the assertion that no “unqualified” applicants are admitted has no basis in fact, but only in verbal manipulation of the term “unqualified” to mean (apparently) whatever the person uttering it wants it to mean. I suggest that anyone with GPA and LSAT scores above the 75th percentile of the previous class be automatically admitted, and anyone with GPA and LSAT scores below the 25th percentile be automatically denied. A slightly more relaxed standard for automatic admission would be to take a cognitive index using (a multiple of GPA) + LSAT and say that anyone who has a cognitive index equal to or higher than the cognitive index of 75th percentile GPA/LSAT is automatically admitted.


Third, as part of your initiative to ensure professionalism and courtesy, which you will undoubtedly conduct given the Commission’s “trust” that you will do so, please consider utilizing a closed instant messaging circuit or chat room with no recording, thus enabling necessary frankness in discussion among colleagues. Fidelity Investments used this sort of system (though it was recorded per SEC regulations) to enhance communication across practice groups. In fact, you could even consider a “best practices” investigation in non-recordable communication media.


Thank you for taking the time to read this message. I look forward to the next two years under your leadership, and hope to experience even more one day as a member of the faculty. As a student and teacher of argumentation, the problems with the Commission's rhetorical construction of facts and their recommendations are troubling to me. As an ethical human being, the prospect that either will be uncritically accepted is even more troubling. Any steps you could take to mitigate the impact of the flaws in the Commission's report will be welcome. This should begin with your explicit recognition that sometimes moral courage requires strategic engagement with a corrupt system rather than repudiation of it, and that the person who fights corruption is of higher moral stature than both the person who embraces it and the person who runs from it in a moralistic effort to preserve personal purity.

Posted by Brian Leiter on August 9, 2009 in Of Academic Interest | Permalink | TrackBack

August 8, 2009

What is your attitude towards veganism?

Perusing the law blogs, I'm encountering more and more folks who are now professed vegans, i.e., those whose dietary regimen excludes all animal products (so, e.g., all dairy products).  (There is more information on veganism here.)  Veganism and epecially vegitarianism is common among philosophy students, but I am struck by the increasing interest among law professors.  I am curious to see what attitudes are among readers of this blog towards veganism.  I hope the five choices reflect a reasonable spectrum of opinion.

UPDATE:  Unfortunately, some pro-vegan websites have now linked to this, thus skewing the results, at least for now.  I would encourage other law-related blogs to link, so that we can get a less skewed sample of opinion.  Thanks.

Which statement best expresses your attitude towards veganism?

View Results
Web Poll from Free Website Polls

Posted by Brian Leiter on August 8, 2009 in Of Academic Interest | Permalink | TrackBack

August 7, 2009

Mikva Commission Report on Admissions at the University of Illinois

The final report is now out.  It is a shame that it contained no real investigation of the individuals with the clout who put the gun to the head of university officials, but it will at least have the salutary consequence of making it very hard for those with political muscle to get their friends and constituents admitted to the university.  But given that the Commission qiute clearly failed to investigate the real wrongdoers, its finger-wagging at university officials, stripped of all relevant context, can only be described as disgraceful.

In essence, the Report describes in great detail how "clout" admissions worked at the university, but contains no real analysis or investigations into why this all happened.  On pages 15-19, we get details of how numerous political figures got special consideration for their candidates.  Not once does the Commission Report inquire into why it might be that these inquiries from powerful politicians elicited such solicitude.  The Report notes (p. 29) that the College of Law's "response to forced admissions from the Chancellor's Office was more one of resignation rather than resistance," but fails to ask why that might have been so.  Why would the College of Law have been "resigned" to having to admit certain students?  Isn't that relevant to this inquiry?  One might have thought so.

The problem confronting the Commission, of course, was in part that the actual wrongdoers wouldn't, for the most part, appear.  In a footnote on page 11, we learn that of the ten state legislators asked to appear before the Commission, only three did so--while none of the legislators with leadership positions in the House or Senate who used their "clout" to get special consideration for candidates deigned to appear.  This is like investigating the consequences of extortion without looking into the behavior of the extorters.

But perhaps these politicans had nothing to fear from this toothless Commission?  After all, State Senator Lauzen, who appeared voluntarily, to testify about his "inquiries" on behalf of a constituent was given a free pass by the inquiring minds on the Commission:

Senator Chris Lauzen appeared voluntarily before the Commission and testified with respect to this applicant, who he identified as a constituent. The Commission notes, consistent with Lauzen's testimony, that no documents or other information indicate that Lauzen himself applied pressure or sought to exert other undue influence, in connection with this applicant. However, Senator Lauzen’s interest in the applicant alone was enough to trigger Herman to direct a significant accommodation by the COL.  (p. 29)

Does the Commission then inquire into why his mere "interest" would "trigger" such actions?  Does the Commission opine on the "appearance of improriety" when a State Senator "inquires" on behalf of constituents applying for admission to state universities?  The answer in both cases, sadly, is no.

Here is what a real investigation might have uncovered:  that university officials knew from many years of bitter experience that failure to "jump" when "inquiries" came from State Senators, Governors, House Minority Leaders, and so on would have ramifications for the university--not for the officials who rebuffed the inquiries, but for the students and faculty of the university, whose salaries, curriculum, and extra-curricular opportunities depend heavily on public funding.  (The Commission Report spends real time on only one other source of "clout" admissions:  big donors.  In a remarkable lapse of analytical insight, it never once notes the connection between the "clout" of big donors and the clout of politically powerful officials.)  Budgets are worked out over many months, through many committees, and individual meetings and informal exchanges.  Do we know everything that is said in these meetings and sessions?  We do not.  And perhaps those wielding the gun are too careful to ever cock it or even display it; sotto voce warnings and understandings are often far more effective.   To be sure, since the Committee did no real investigation, this is merely speculative, but ask the question:  why would a mere "inquiry" from Senator Lauzen "trigger...significant accomodation"?  Why did the Chancellor of the University "jump" when the Governors and powerful state legislators mentioned on pp. 15-19 asked for "special" consideration for their favored candidates?

What other explanation could there be? 

To be sure, you might say, the Chancellor and the Law Dean could have "blown the whistle" on these shenanigans.  Even putting aside the consequences that would have had for the university, for its "innocent" faculty and students, the Chicago Tribune stories and now the Commission Report make all too clear why it never crossed any university official's mind to go this route:  they, as the easy targets, would be blamed, and those with political power would go unpunished.  Thus, the university administrators made a devil's bargain:  secure a favorable audience for university needs in Springfield by admitting a small number of less qualified candidates (something the university, of course, does all the time for a whole host of reasons unrelated to "clout").  As I noted at the start, the one salutary outcome of this whole affair is that the bargain can now be broken, without anyone with political power being able to blame the university.  It is a shame that it had to be done, though, based on a smear campaign against university administrators.

At page 32 of the Commission Report there is the following remarkable and understated admission:    "To be sure, [former Dean] Hurd should not have been placed in the position of having to fend off highly dubious administration directives in the first instance."  Well, yes, it was nice of the Commission to notice!  But then the report continues:  "[N]evertheless, more should be expected of Deans...."   Like what?  That they fall on their sword at every affront and abandon the institution--the students and faculty--they are committed to serve and protect?   Under the circumstances, former Dean Hurd actually appears to have done the right things:  she resisted when she could, and sought help for her unit when forced to acquiesce.  In the process, and lost in all this, is the fact that she improved the College of Law's faculty and national reputation quite significantly during her tenure.  Who doubts she, like any Dean, would have preferred not to make the devil's bargain--and now especially when the actual "devils" get a free pass for their misconduct.

Remarkably, the Report then cites current Dean Smith's firm statement in opposition to clout admissions as though it shows him to be higher-minded than his predecessor.   Really, now!  What did they expect the Dean to say after all the adverse publicity, publicity which now insulates him from any consequences for taking the high road on admissions policy?  

It is a shame that the Commission did not undertake an actual investigation into the causes of "clout" admissions policy at the university or into the actual wrongdoers who wielded that clout.  It is a shame they presented a cartoon caricature of administrators, with no attention to their actual motives, the constraints under which they operate, and the multiple constituencies they must serve.    But at least the Report will now give the needed cover to future administrators at the University of Illinois to do what their predecessors would have loved to do too:  namely, tell influence-peddling politicans, "sorry, our hands are tied."

Posted by Brian Leiter on August 7, 2009 in Legal Profession, Of Academic Interest | Permalink | TrackBack

August 6, 2009

Former Dean Hurd's Full Statement on the Illinois Admissions Flap

Her colleague Larry Ribstein has the link.  It contains a number of important factual corrections to the Chicago Tribune's carelessly (or intentionally?) inflammatory reporting on the subject.

Posted by Brian Leiter on August 6, 2009 in Of Academic Interest | Permalink | TrackBack

August 5, 2009

In Memoriam: John H. Barton (1936-2009)

The Stanford memorial notice is here.

Posted by Brian Leiter on August 5, 2009 in Memorial Notices | Permalink | TrackBack

"Law schools should be more 'practice'-oriented and operate more like a business"

Michael Livingston, a tax scholar at Rutgers-Camden, has a refreshingly contrarian point of view on this now familiar bromide.

Posted by Brian Leiter on August 5, 2009 in Legal Profession, Of Academic Interest | Permalink | TrackBack