Why do law professors do what they do?

A question that is harder to answer than it may seem.

|The Volokh Conspiracy |

Law professors have almost complete autonomy over how they spend their time. There are a few exceptions. Administrations set class schedules. Faculties dole out committee work. Etc. But for the most part, professors can unilaterally set the direction of their careers. That much is straightforward. The far more complex question is why do professors do what they do.

In many cases, a professor's experience prior to academia will inform her scholarly progression. A former public defender may focus on criminal procedure. A former corporate law may focus on bankruptcy. A former civil rights litigator may focus on constitutional law. And so on. But those decision are merely starting points.

Once in the field, (most) professors have to specialize. (I say most because I haven't quite narrowed down my field of study). What specific areas of criminal procedure, bankruptcy, and constitutional law do they wish to study? This winnowing-down process may happen organically. For example, a professor may write one paper, which leads to a second, which leads to a third, and before you know it, she has become an expert in a specific area.

This process may also happen deliberately. A professor may choose an area to focus on, and direct all scholarship in that area. Why pick that single area? Again, the professor's prior experiences in practice may inform that decision. But that experience is not dispositive. Many professors choose to depart from their experience in practice.

Why? Often a professor may say "I find that area interesting." The word "interesting" is meaningless. What the professor likely means is that area advances some cause the professors favors. Whatever that cause happens to be: criminal justice, textualism, racial equality, the separation of powers, reproductive rights, originalism, economic fairness, etc. There is some normative driver behind a professor's choice to proceed in a certain area. Professors seldom acknowledge that root cause.

Law professors have an additional outlet that other academics lack: litigation. Law professors can participate in litigation through amicus briefs. Often, these briefs are drafted by lawyers, and scores of law professors place their signatures, and not much else on the briefs. Some law professors take the lead, and draft their own amicus briefs. And in rarer cases, law professors actually represent parties as counsel–sometimes as lead counsel.

Why do law professors choose certain legal causes? For the same reason they choose certain areas of legal scholarship. At bottom, everything law professors do–indeed everyone, for that matter–is motivated by their notion of the common good, whatever that common good is. This is a subjective choice, and is hard to pin down precisely. People are complex. They have dueling motivations, which are often at odds with each other. Professors may favor policy X in one context, but policy Y in another, even if those positions are hard to reconcile. That tension doesn't make the professor a hypocrite or a bad faith actor. Rather, the tension merely reflects the human nature of scholarship. I never try to figure out why people do what they do. Most people don't even understand why they do what they do. How am I supposed to figure it out for them?

The choice to pursue certain causes, of course, opens one up for criticism. In academia, as elsewhere, it is always simpler to choose the path of least resistance, and avoid unpopular positions. As the saying goes, "Talk less, smile more, don't let them know what you're against or what you're for." But not everyone chooses that path. I sure as hell don't. I take lots of unpopular causes–even before I was tenured. St. Jude would be the patron saint of my academic portfolio.

I frequently debate at law schools (or at least I used to), and would hear similar questions: How can you defend position X when it will lead to people getting hurt? Here are paraphrases of questions I've received over the years.

  • My mother is alive because of the Affordable Care Act. How can you possibly oppose it? (I received this question long before the current ACA challenge).
  • My son was murdered by gun violence. How can you possible oppose gun control laws?
  • President Trump is a racist/bigot/xenophobe/etc. How can you possibly support any of his policies?
  • How can you possibly defend hate speech?

And so on. I do my best to reply, even as I am being protested. I explain that there are other principles behind these issues. The separation of powers. The First Amendment. Etc. And I think these other values are important for the the rule of law. My answers to these questions are never satisfactory. Why? Because the person asking these questions has a different conception of what is in the public interest. And I don't try to persuade them otherwise.

This post was inspired by a recent kerfuffle on Twitter. I have now been off the platform since January, and I am a much happier, and more productive person. I am especially thankful to have been off Twitter during Blue June. Occasionally, friends send me tweets. Rather than respond on Twitter, I'll respond here.

Ilan Wurman, a professor at Arizona State, filed a suit that challenged the Arizona Governor's shutdown order. He argued that order violates the state constitution law. I have no insights into whether his claims is correct. The suit builds on Ilan's work on the non-delegation doctrine.

Anthony Kreis, a professor at Georgia State, subtweeted Ilan:

Anthony's criticism is one I have heard many times before. And it rings hollow. Everyone has a different conception of the public good. For some people, like Ilan, the structures of the state Constitution are very important. And the Governor may have transgressed those limits in an effort to promote public safety. Maybe Ilan is right. Maybe he is wrong. But it is an empty criticism to say Ilan's work is "troubling." This criticism does not assess the merits of Ilan's work. Instead, this subtweet attacked Ilan's choice to pursue this matter altogether. Anthony's argument is designed to merely dismiss an argument, because of its consequences.

Co-Blogger Orin provides a response:

If Ilan's argument is right, the Court should rule in his favor. Not all public health measures are lawful. If his argument is wrong, the Court can rule against him. And his arguments can be criticized accordingly.

Ilan has courage to take a stand for a cause he believes in. Courage is lacking in our society. It is not courageous to take a position that is popular. Courage is taking a position that you know will be unpopular, and doing it anyway. I wish there were more scholars like Ilan who have the fortitude to talk more, and smile less.

 

NEXT: Why the "No True Scotsman Fallacy" isn't Always a Fallacy

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  1. With all due respect, the bigger question is why would anyone attach any great significance to anything a professor does, in law or otherwise.

    1. Because they can speak with the most freedom. Any attorney or judge that rites an opinion piece or op-ed knows that there may be repercussions for their speech. Law Professors, thanks to tenure, are able to speak without worring that they may be fired. They also guide law through their scholarly articles. Their the experts in the field.

  2. Please keep doing what you’re doing, professor. I really enjoy your perspective, even when our views (sometimes) differ.

    1. Speaking of subtweets, I’m pretty sure you just subtweeted Sarcastro.

    2. Yea. Same here. I give him a hard time when I don’t agree with him. Yet, I like the fact he has ideas. Plus his perspective helps me grow in the creation of my views and beliefs.

  3. Often a professor may say “I find that area interesting.” The word “interesting” is meaningless.

    That’s not true. Sometimes it’s meaningless, but sometimes it isn’t.

    Don’t people often choose careers – not limited to law – because they find some area interesting? I know people who did that. Is it really the case that law professors choose areas only to advance their pet causes, and never have a genuine academic interest in the subject area they focus on? I don’t know many law professors personally, but at least one I know specializes in an area that has no “cause” associated with it.

    That seems plainly false to me.

    1. It is clearly false, although perhaps somewhat telling as to the value of Prof. Blackman’s scholarship.

    2. Agree it is sometimes meaningful, especially when used as the opposite of uninteresting.

  4. At bottom, everything law professors do–indeed everyone, for that matter–is motivated by their notion of the common good, whatever that common good is.

    That tobacco you’re putting in your pipe. It ain’t tobacco.

  5. Courage is lacking in our society. It is not courageous to take a position that is popular. Courage is taking a position that you know will be unpopular, and doing it anyway.

    Equating heterodoxy with courage is a bit much.

    Do you think that racist antisemetic troll in our comments is courageous? Would he be if he used his own name? If he worked to publish his thoughts as scholarship?

    Not to mention tact can turn the heterodox into orthodoxy. But that’s another story.

    1. Do you think that racist antisemetic troll in our comments is courageous? Would he be if he used his own name? If he worked to publish his thoughts as scholarship?

      Yes. Or at least probably. Courage consists in doing or facing something that you fear (including fearing the consequences of the doing or the facing.) No doubt there are some folk who do not fear what most people would fear – eg in your example someone who desires notoriety, or someone who thinks it unlikely that any fearworthy consequences will follow (eg a commenter who remains anonymous or one who is simply foolhardy.)

      If I may make a generalised psychological diagnosis here. There is among lefties something of a utopian frame of mind, that is nearly absent on the right. Many lefties are uncomfortable with any disagreement between words with “good” values. And so mutatis mutandis, “bad” value words must also line up dutifully in tidy ranks.

      Thus what is courageous must be right, what is compassionate must be wise, what is beautiful must be good, what is creative must be wonderful; and what is evil must be cowardly, what is disgusting must be worthless.

      But reality is not so organised. “The good” is not a fairytale alignment of pretty things. It is a foolish notion that an evil man cannot be a brave one.

      1. There is among lefties something of a utopian frame of mind, that is nearly absent on the right. Many lefties are uncomfortable with any disagreement between words with “good” values. And so mutatis mutandis, “bad” value words must also line up dutifully in tidy ranks.

        I don’t think so, Lee. Way too overgeneralized and one-sided a view.

        Remember when someone, I think it was Bill Maher, described the 9/11 hijackers as “brave.”

        As I recall he caught a lot of flak, from left and right.

        But reality is not so organised. “The good” is not a fairytale alignment of pretty things.

        Which is exactly what I try to say when people glorify “the market” as the perfect solution to all economic problems.

        1. It’s is certainly generalised, and for those who think any generalisation is an over-generalisation, then fine.

          But I place in evidence….Mr Ebenezer Sarcastro. It is hard to imagine a leftie more obviously squeezing, wrenching, grasping, scraping, clutching, hard and sharp as flint, secret, and self-contained, and solitary as an oyster. Not to mention wizened and cynical.

          Emphatically not your doe eyed, naive and innocent 16 year old idealist.

          And yet, in the emotional turmoil of the moment, when his gnarled old carapace is laid over the back of a chair in the bedroom, for the cold cynical morning, he comes up with nonsense about an incongruousness between courage and a dark heart. It does not betoken stupidity, it betokens the traditional – but not universal – lefty utopian fantasy, under the skin.

          As for markets, well, you have to appreciate that libertarians are at heart lefties. They have a scheme and a system. True their system consists in laissez faire, and so requires no labor camps or firing squads, but there is certainly a millenarian flavor to them, and their faith in markets. (Again with exceptions.)

          In reality, of course, markets are a practical mechanism for processing information – distributed information, uncertainty and changing information. They have a moral element to be sure – voluntary association is morally superior to coercion or force (in some people’s opinion) but as practical engines for improving the human condition no claim of perfection can be seriously advanced. They involve humans after all.

          But at a purely practical level, what can certainly be claimed of them is that they are far more comprehensive and sophisticated than the non market interventions that are proposed to “improve” the results that markets arrive at. The latter are by definition incapable of processing the information that markets process. And so it is hardly any surprise that in practice, those societies which leave more to the market are the wealthier ones, for rich and poor alike. As well as being freer socieities.

          1. I didn’t say anything about a dark heart, dude.
            I mean, I’m heterodox around here. I’m not claiming that’s courageous.

            Courage, as you note below, has an internal component – overcoming something you are subjectively afraid of.

            It also has an external component – overcoming something with a general reputation of being worthy of fear.

            Being a law prof, or an internet commenter, does neither.

            1. It also has an external component – overcoming something with a general reputation of being worthy of fear.

              I beg to differ. Courage has no external component, it is purely a matter of contending with your subjective feeling.

              There is obviously a probabalistic connection between what is generally (ie externally) thought to be worthy of fear, and your subjective feeling of fear – it’s more likely that you will fear what most people fear.

              But if, as it happens, you don’t fear charging a machine gun nest, even though most people do, you don’t need courage to attempt it. Meanwhile if you do fear getting into an elevator, even though most people don’t, you do need courage to attempt it.

            2. I’m heterodox around here. I’m not claiming that’s courageous.

              And you are wise to eschew such a claim. Because

              (a) you’re incognito, and
              (b) you’re a leftie

              Nothing unpleasant could happen to you, in the current reality, if your identity were to be disclosed. Although communist sympathies might have caused you some discomfort in the 1950s, in 2020 you’re not going to be cancelled or doxed or fired or treated unkindly in your social life or accosted by ill wishers at your front door or jostled or punched, for being a lefty making lefty comments on a mostly libertarian blog.

              Whereas if you were a rightie, making right wing comments (or indeed utterly routine liberal comments from circa 2014) on this blog (or any other) then you might have something to fear from exposure.

          2. what can certainly be claimed of them is that they are far more comprehensive and sophisticated than the non market interventions that are proposed to “improve” the results that markets arrive at. The latter are by definition incapable of processing the information that markets process.

            Sometimes. It is critical to try to understand where markets fail, or where they succeed on their own terms but the results are not the best. Efficiency is not the only measure worth paying attention to, by a long shot, yet that is what the market – in its idealized form – intended to produce.

            I mostly agree with your opinion of libertarians. They aren’t lefties, of course. That’s just a way to try to pin their pathologies on the other side of the aisle. But they are most certainly ideologues. They have their theories and if reality doesn’t work in accordance with them that’s a problem for reality, not the theory.

            Sounds harsh, but scorn for empiricism is at the root of their thinking.

            1. “They have their theories and if reality doesn’t work in accordance with them that’s a problem for reality, not the theory.”

              I think you may not understand what libertarianism is. It’s not, like utilitarianism, a comprehensive theory of the good, and of morality. Of what people ought to pursue.

              It’s a theory of what means are moral to employ. That’s all. It doesn’t really tell you anything about what ends to pursue, it just sets out some limits on what you can do in pursuing them.

              And so it does not lay out a road map to the best of all possible worlds. It doesn’t say everything will be wine and roses if you don’t violate the non-aggression principle. There may well be some good things that refraining from violating rights puts out of reach.

              It just points out that the means you’d need to get to them are immoral.

              1. It just points out that the means you’d need to get to them are immoral.

                I think you meant “claims,” rather than “points out.”

                1. This distinction is a reliable tell for parsing articles in the media, which give away which side the journalist is on, even if he/she is trying quite hard to conceal that. And consequently, a clue to whether other items stated as fact are more claimy than facty.

                  People who are right point things out. People who are wrong merely claim them.

      2. An even better example.

        Robert E. Lee was a good general. Therefore it is unacceptable to many that he was also quite a bad man, unworthy of being honored.

        1. But for Robert E. Lee, the carnage of the Civil War would have continued as a guerrilla war well into the 1870’s, not to mention a likely wholesale genocide of the now-freed slaves.

          That good deed outweighs whatever evil he may have done.

          1. Wait. You mean the southerners really were fighting to keep the slaves in shackles? And here I thought most of the Confederates didn’t really care about slavery.

            I’m glad you’ve learned something, but the absence of guerrilla war is perhaps not entirely attributable to Lee, and his efforts in that regard to not outweigh the evil he did earlier.

            And while there may not have been a “wholesale genocide” (what does a retail genocide look like?) there was wholesale continuing oppression, including de facto slavery, for a long time after the war.

      3. If by utopian frame of mind you mean we think we can actually usher in utopia then you are mistaken. We’re not that naive.

        What there is among leftists is a sense that we could do far better than we are. There are no panaceas, but specific problems can be addressed and people can be left better off than they were before. For example, elder poverty is way down thanks to social security. Is it perfect? Of course not. Finding problems with social security is child’s play. But we’re better off than we were before.

      4. I say heterodoxy is not necessarily courageous. You read this as my saying bad things cannot be courageous. Indeed, you build a whole narrative out of that assumption. But that’s not what I said.

        Of course courage is orthogonal to both heterodoxy and immorality.

        One could read a lot into a conservative academic saying heterodoxy is the same as courage…

        1. I say heterodoxy is not necessarily courageous

          If ill consequences attach to the heterodoxy, and you fear them, then yes, necessarily.

          1. Doing a thing despite ill consequences is not courageous.

            Putting your hand on a hot stove is not courageous.

            1. I note that you have omitted the stated condition “and you fear them.”

              Putting your hand on a hot stove, if done deliberately and if you fear the ill consequences, IS courageous.

              Also dumb.

              1. Putting your hand on a hot stove, if done deliberately and if you fear the ill consequences, IS courageous.

                We are going to have to disagree about this. No one looks at someone who does that and says ‘so brave! Such courage!’

                1. No one, except perhaps, a group of teenage boys trying to prove they’re not wusses. There are all sorts of games of chicken that teenagers play, and they are all more or less pointless from the point of view of the task itself.

                  I recall one at school which involved jumping out of a second floor window onto the hard yard below. Some would not attempt it at all. Some would do so visibly nervous, and a (small) few would do so without a second thought. Unsurprisingly people who had seen it done by others tended to be a bit less nervous than newbies.

                  It would have been quite difficult to kill yourself, but you could certainly sprain, or even break, an ankle, or give yourself some nasty scrapes on the hands and arms on landing. Obviously the school got wise to it after the first couple of (fairly minor) injuries. After that, expulsion was decreed for any attempt (this was a school it was possible to be expelled from.) From then on, only the lunatics did it occasionally, just to show that their contempt for authority was just as strong as their contempt for the risk of injury.

                  Though pointless in itself, how you performed certainly had an effect on your status. You wussed out and you were dirt. You did it in a devil may care fashion, you had a bit of standing, especially if you hurt yourself a bit.

                  There was also a notable correlation between jumping performance and matters of genuine moment – whether you were tough or scared on the football field.

                  The correlation with intelligence was mildly negative.

                  1. I don’t think childhood dominance games are actually tests of courage.

                    1. All together now – “Oh yes they are !” And what’s more that’s precisely what they are intended to be.

                      Although they are not entirely accurate tests of courage since they measure you against the external sarcastroan standard – whether the dare is considered scary by the public, rather than against your own subjective fear.

                      But good enough for playground work.

                      Nor of course does this sort of thing stop in the playground. Never forget – we’re monkeys. We play monkey games.

                    2. Intended to be, perhaps.

                      But that’s not what they actually are.

                      A test of fortitude? Perhaps. A test of how much someone is willing to kowtow to the group? Most definately.

                      Your overbroad definition of courage does quite a disservice to actual courage.

                    3. You are wrong, but you raise three good points.

                      Your wrongness continues to be in requiring courage – a successful battle with your own fear – to be demonstrated in the context of wise or commendable acts. Those associations are not necessary. Courage in the context of foolish or reprehensible acts is still courage. Though it is less typically praised in such contexts.

                      However :

                      1. these dares are not exactly tests of courage, or at least not precisely so, for the external / internal reason I mentioned before. But also, for the purpose of earning status, it is primarily the external measure – whether you can bring yourself to do something that is generally feared – that counts. Ultimately your peers want to know whether you are the sort of guy who will stand his ground, spear in hand, when the wild boar charges. It doesn’t matter to them whether you are a foolhardy person who is not subjectively very fearful, or whether you are capable of overcoming your fear. So the test is more of “nerve” than “courage”, whether your nerve comes from simply having a constitution insensitive to danger or from being able to summon up courage when the need arises.

                      2. You are quite right that part of the consequences you need to bear in mind, is the reaction of the group. I certainly wouldn’t call it kowtowing, it’s something you have to weigh in the balance. If I don’t do the dare, I won’t break my ankle, but I will be made fun of. So some who pass the dare test will do so because the net consequences foreseen are smaller than the possible broken ankle. And so their courage may be enough for that.

                    4. 3. Ah, fortitude. Related to courage but not the same thing. With courage you have a choice to run away from the thing you fear. With fortitude, something unpleasant is happening, or is going to happen anyway, and your choice is how to meet that unpleasantness.

                      Of course in many circumstances, the two things are almost inextricably intertwined. You’re very badly injured in a car accident. That’s a sunk cost – you’re going to suffer anyway. But you can give up, or spend your time bemoaning your bad luck. Or you can try to make the best of it and not burden those who care for you any more than you have to. The latter is fortitude, but since you probably do have a choice to act – ie to give up or not, then choosing each day not to give up requires courage as well as fortitude.

                      In any event it reminds me to quote the perceptive remark of one of those courageous but not very nice men of the ancient world, Julius Caesar :

                      “qui se ultro morti offerant, facilius reperiuntur, quam qui dolorem patienter ferant”

                      which has been translated as

                      “it is easier to find men who will volunteer to die, than to find those willing to endure pain with patience”

                    5. I don’t think…

                      Perhaps you should start.

                      It might help you to grasp the concept that something can be both brave AND stupid at the same time, even if the latter attribute is more apparent.

                    6. Wuz, I’m not arguing about smarts.

                2. They do if they think there was a good reason to do it. People don’t tend to praise stupid courage, because the stupidity renders the courage less valuable. But it doesn’t render it less courageous.

                  1. No, courage is generally considered a positive good independent of its wisdom.

                    1. I believe Brett’s point was that if you display fifty units of courage and zero units of stupidity, your courage is more likely to be remarked on than if you display fifty units of courage and eighty units of stupidity.

                      In the latter case, people have something else to comment on.

                  2. the stupidity renders the courage less valuable. But it doesn’t render it less courageous.

                    It’s not the stupidity of the objective that matters. It’s whether the individual thinks the objective is worth achieving at the cost of harm or danger to himself.

                    To repeat an example, The 9/11 hijackers were certainly courageous, regardless of what we think of their goals. So too many of the Confederate soldiers.

                    But taking risks for the sake of taking them, with no objective in mind, is not courage but foolhardiness.

                    1. The 9/11 hijackers were certainly courageous, regardless of what we think of their goals

                      They thought the consequences of their actions would be an eternity in paradise. How does that make them courageous?

                    2. Wuz, by that standard no one who is religious can have courage.

              2. What’s courageous about it? Nothing that I can see.

                Burning yourself for no reason is not courageous.

                1. Did you ever read Will by G. Gordon Liddy?

                  Its an autobiography of one of the Nixon plumbers. He writes about how in prison he burnt himself over a lighter to show everyone how badass he was. HE thinks it’s hard core. It comes off as deranged and pathetic.

                  These people are defending that behavior. It’s shallow as hell.

                  1. This simply confirms my point – you want your nice adjectives to line up neatly. But there’s no contradiction between being courageous, and being deranged and pathetic.

                    1. Nope. Not what I’m saying. Clearly, that’s what you want me to be saying, but it’s not what I’m saying. It’s not about lining up with easy categorization or some utopian view (see bernard bringing up Confederate soldiers)
                      Sorry not to conform to this liberal strawman.

                      Your definition of courage encompasses putting you hand on a stove and being peer pressured into doing dangerous stuff. Mine and bernard’s do not.
                      Enjoy your weird self-destructive courage, good luck convincing others that it’s legit.

                    2. Your definition of courage…

                      …is the standard English definition of the word. Yours is not. You and barnard are simply making up your own meanings for words, which is either dishonest or stupid…take your pick.

                    3. Wuz, your hot takes on courage are not actually the general parlance.

                      And your insults make you look like you don’t have the courage of your convictions.

                    4. Nonsense, Lee.

                      I simply don’t understand the virtue of harming yourself for no particular reason.

                      Go back to Robert E. Lee. If you can cite courageous things he did – say, risk his own life in battle to save that of one of his men, for example – I would accept that as indicating that he had courage, despite my low opinion of him as a human being.

                2. Burning yourself for no reason is not courageous.

                  The problem here is that both you and Sarcastr0 keep insisting on making up your own definitions for words…definitions that do not agree with their standard agreed upon meanings. Per Webster:

                  Definition of courage
                  : mental or moral strength to venture, persevere, and withstand danger, fear, or difficulty

                  The same is true in most other references. Worthiness of the intended outcome is simply not a component of “courage”.

                  1. No one is talking about worthiness of outcome, Wuz – see bernard’s point about the confederates elsewhere.

                    Just that courage is associated with a cause of some sort. Hence the moral strength aspect of the definition you just pasted in.

  6. Law professors are people with 180 IQs that got lucky they were born in America where we waste brain power by paying lawyers big bucks and allowing law professors and judges to have cushy jobs. People with 180 IQs should be building spacecraft to get to Mars and not wasting brain power getting a law degree and becoming a professor or a judge. Dershowitz’ recent testimony in the impeachment hearings showed how dumb it is to waste brown power on interpreting the Constitution. So Senators are smart enough to know he is just doing Jedi mind tricks and so he should simply be ignored.

    1. Law professors are people with 180 IQs

      I don’t think so. There are some bright law professors, but my impression is that they are not, as a group, exceptionally intelligent when compared to other academics. Indeed, I’d guess they are less intelligent, on average.

      Certainly they are not in the same category as most science or math Ph.D.’s and, judging by the quality of the work in Law and Economics, pretty far below economists as well.

      Basically, law is a cheap path into an academic career.

      1. I agree. It’s only three years post graduate.

        A friend of mine told me that, if you’re from a cushy background, law school is where you go if you have no talent and no ambition. And law professors move about in a world of deference and respect whether it is earned or not. The result is people who think they’re smarter than they actually are.

        I had a few good professors but only one or two who impressed me as very bright. My Con Law professor, in particular, seemed to me a dim bulb, not imaginative and not a penetrating observer, but he was presumed to be a genius because, after all, he taught Con Law.

        1. I’m not sure we even want genius level law professors. They may be tempted to over-complicate things, and bypass obvious answers just because they’re not clever enough to be interesting.

          1. The professors that post here have IQs over 140. Gorsuch clearly has an IQ over 140…and I guarantee you every Supreme Court clerk has over 130 IQ. Law review and judicial clerkships are very similar to how CalTech and MIT operate—geniuses start law school as geniuses and then they excel at law school because they are geniuses.

            1. I’m wondering how you know the IQ’s of the conspirators.

              My observation, based on years of reading this site, is that some are in fact quite intelligent, while others are quite ordinary. Some are in between.

              Now “ordinary” doesn’t mean average on a global basis, but it does mean not particularly impressive intellectually.

              1. Computers fascinated the young Volokh. He wrote his first professional-grade program when he was ten and earned his first paying gig as a coder two years later, when his IQ was measured at 206. After graduating early from UCLA at 15, Volokh worked full-time as a software engineer.

                https://www.lamag.com/citythinkblog/right-side-law-eugene-volokhs-global-influence/

                I listened to Blackman on a radio show and the first thing the host asked him was his IQ and I can’t remember the exact number but it was over 140. Kerr has a MS from Stanford to go along with other Ivy League degrees so he is obviously over 140.

                1. I listened to Blackman on a radio show and the first thing the host asked him was his IQ and I can’t remember the exact number but it was over 140.

                  Which is BS. First of all, who even answers that question? Second who takes IQ tests once they are out of school for any reason. Third, having read Blackman’s posts, I’d say it’s unlikely he’s in the top half percent of the population in brainpower.

                  As for Eugene, he is no doubt extremely bright, but:

                  He’s only one of the conspirators.

                  And taking nothing away from him an IQ of 206 – seven+ standard deviations above the mean – is nonsense. First, that’s about 8 in a trillion. That means it’s likely there has never been anyone on Earth with that IQ. Moreover, how could you ever design an instrument that would measure that? How many questions would you need to distinguish even between say 160 and 175 and 206? Billions?

                  Yes. I know you can find stories on the Internet about people with these kinds of scores. That doesn’t make the scores meaningful.

      2. Law review and clerkships and professorships are all about IQ. As a pea brained 125 IQ person I never stood a chance. 😉

      3. I don’t know a lot of law professors, but I’m prepared to believe there are some very smart ones. I do know a handful, who do not seem to me to be very smart. But they are specialists – IP and securities law etc, which I suspect has more to do with being able to marshal a large array of artificial rules, than agility on the intellectual parallel bars.

        In business, the sort of lawyers I’ve come across who have seemed to be smartest were those involved in contracts, especially M&A. The most interesting curiosity to me is that the great majority of lawyers, including very competent and smart ones, seem to be relatively clueless about arithmetic. There are exceptions of course but numbers do not seem to agree with most lawyers.

        As for algebra…. I must have bought or sold two or three dozen businesses or companies in my time (as a business type, not a lawyer) and it’s not unusual for there to have to be some kind of formula here and there in the contract – calculating an earn out ,or adjusting something for some complicated tax thing, or dealing with minority holdings etc. On the whole the lawyers’ efforts at this in their draft contracts were woeful – and expensive, since they would huddle in groups of twelve trying to puzzle out things an intelligent fourteen year old could handle.

        Mostly I had to do the formulae myself.

        1. I agree with you, especially your comments about mathematical skills, and your experience squares with mine.

          I’ve seen incredibly convoluted efforts to describe mathematically quite simple agreements.

        2. I agree also as to math.

          Years ago I saw law schools recommending that prospective lawyers get their undergrad degree in the humanities rather than in technical or scientific subjects. My guess is that law school was for pampered types who were expected from birth to go to grad school. Why waste those four years learning how to actually do something?

          It does create a sense of inadequacy, I think. In the 1980s and 1990s we saw law-and-economics profs who didn’t know a binomial from a Buick devising “mathematical” formulas for their theories.

        3. Lol so true. Personally, I was gonna get a masters in finance instead of going to law school, and I thought I would enjoy the work more, but I just hate doing math too much. Not that I can’t do it (I think,) but I just really do not like it. I think the general lawyer attitude can be summed up as my tax professor once said, “leave that sort of stuff for the accountants, they need to have something to do.”

          1. I think the general lawyer attitude can be summed up as my tax professor once said, “leave that sort of stuff for the accountants, they need to have something to do.”

            A tax professor said that?

            1. Yup. An adjunct who worked in the DOJ’s tax division so that says more about tax law than law professors I guess.

  7. Why does anyone do what they do?

    Because they want to. Pinning it down any closer is a waste of time, and maybe we should ask why this law professor wonders why other law professors do what they do?

    It’s not unique to law professors.

  8. This professor would, were he working at a good firm, be approaching his first shot at partner, and have the benefit of senior attorneys’ help. He is the sole attorney identified on this petition, and it shows in several ways, including amateurish bluster, writing that would have benefited from an editor, and unsupported assertions. He relies on ‘recent scholarship’ . . . and cites solely a law review article he wrote.

    I expect the governor’s lawyers to eviscerate this brief, which relies to remarkable degree on (1) dissents and (2) law review articles authored by the plaintiffs’ attorney.

    At the practical level, his clients are a bunch of bar owners who want to violate public health orders during a pandemic. This seems likely to be a case of the legal misfit advocating for the reckless, selfish malcontents.

    He has every right to advance these claims, but his judgment and motives are readily questionable. He seems to be on the wrong side of this one, just as he seems, more generally and ideologically, to be on the wrong side of history.

    (On the other hand, maybe he knows the Arizona Supreme Court better than I do, and a petition that relies solely on right-wing authority — even if heavy on dissents and self-flattery — may be just the tonic.)

  9. “And so on. I do my best to reply, even as I am being protested.

    It won’t remain that way for long. Joe Sixpack & Suzie Sweatpants are getting pissed and there may not *be* law schools in 10 years. While you articulate valuable principles, the left has chopped down the forest and none of this will matter when (not if) the tide turns.

    I genuinely fear the consequences of a Trump defeat in November….

    1. You don’t fear anything you say you do.

      You’re just a mess who lives drama.

      1. At ;east I live in the real world.

        1. Like Trump does, one supposes.

        2. You live in a world of speculation about future dramatic events.

          It’s your favorite thing to post about.

    2. “I genuinely fear the consequences of a Trump defeat in November….”

      Yeah, and the Conspirators thought this blog would make movement conservatism more popular in America.

      Watching right-wingers’ expectations and preferences get crushed in America has become slightly boring.

  10. If you hold that it is not courageous to take a position that is popular, then it is also true that it isn’t principled to undermine public policy that is desperately needed to the point of life and death simply to score a “correct” legal point.

    1. No, it is not true. There is a qualitative and contextual difference between ‘courageous’ and ‘principled’. The comparison is inapt.

  11. If you hold that it is not courageous to take a position that is popular

    This isn’t quite right, though it usually will be. You may be one of those (many) folk who fear public speaking. So getting up on your hind legs in a meeting may terrify you, even if what you have to say is popular. And so would require courage. Courage has to do with contending with fear.

    then it is also true that it isn’t principled to undermine public policy that is desperately needed to the point of life and death simply to score a “correct” legal point.

    Your “then” is not the sort of non sequitur that sneaks past, on tiptoes, in the dark of the night. Rather it comes down the staircase proudly, wearing a pink tutu and a top hat, and singing Dixie.

    The second half of your sentence has nothing to do with the first half.

    Whether the second half of your sentence is true or not, depends on the circumstances. (We will stipulate your life and death prognostication as true.) If your motive is to preserve your reputation as Mr-Knowitall in the public prints, and you press yourself forward to enhance your reputation, at a predictable cost to the public welfare, then yes, that is doubtful proof of your principle. For silence would have done just as well.

    But if you do not press yourself forward and, as a known expert, you are cornered and asked “is this policy legal ?” then silence is not really an option, since in that context silence will be taken as denial. So is your duty as a man of principle to tell the truth (as you believe) and say “No, obviously it isn’t, for these three reasons” or to lie and say “Well it’s a grey area.” The second choice looks to be nakedly utilitarian, and contrary to the principle of not lying.

    The whole notion of “principle” implies a rule. Common or garden utilitarians do not have principles, they have calculators. The sort of folk who put value on principles are folk with non consequentialist ethics (ie non utilitarians) or at least rule-utilitarians.

    So to appeal to “principle” at all implies an ethic which is not, or not wholly, consequentialist.

    1. I get the impression that the victory of consequentialist ethics is so complete on the left, that they don’t even believe non-consequentialist ethics is even possible.

      1. Yeah. I don’t think you or any self-described right wingers who frequently comment here are a good voice to disdain consequentialist ethics. You’ve all endorsed norm/rule flouting to own the libs or straight up violence at one point or another. Indeed the entire Trump movement, beyond simply being an outlet for the rage of the mediocre is an exercise in ends-justify-the-means thinking.

        So the only reason anyone should take your finger wagging about the dangers of consequentialist ethics is because you practice them and the results are terrible.

  12. At bottom, everything law professors do–indeed everyone, for that matter–is motivated by their notion of the common good, whatever that common good is.

    This is an absurd statement. I just finished eating a nice breakfast. My desire to do so had nothing to do with my notion of the common good.

    Plus, ever heard of Adam Smith?

  13. Ilan has courage to take a stand for a cause he believes in.

    Maybe.

    Or maybe he’s just being a cynical careerist, hoping to advance his standing in right-wing circles. I have no idea which it is.

    1. If he were genuinely attempting to advance a cause, wouldn’t he have proofread — or hired someone to proofread — that novel, extraordinary petition?

      I sense this was a bid for advancement in the clingerverse . . . maybe some shout-outs from Drudge, Instapundit, and the Volokh Conspiracy if he got lucky.

  14. “Courage is taking a position that you know will be unpopular, and doing it anyway.”

    A sentence lifted from thousands of middle school book reports.

    A rallying cry for defenders of pedophiles, serial killers, and the Trump administration.

    And the type of advocacy that lands a spot at South Texas College of Law.

    1. While I disagree w/ the Prof’s definition of courageous, Kirkland, your pedantic ad hominem attacks don’t do much to support a counterargument. And, it tends to be your in-group that elevates both pedophiles & pederasts. Which is not to say that each group you’ve listed does not deserve due process -I leave that to you O superior one.

  15. I don’t think it’s so much courage as a desire to piss off progressives. Someone like Josh, whose only time outside academia was in the legal cocoon of clerkship, was probably vulnerable to this. In college, particularly undergrad, progressives and radicals are easy to dislike and resent. It’s almost as if they are daring others to become conservatives.

  16. This is like listening to a rock and roller sing about being on the road, except for the unfortunate fact that lawyers rule our lives. It’s curious that an ostensibly libertarian publication gives a forum to members of the statist ruling class.

  17. I lived for years in a community over-supplied with youthful, athletic adults. They doted on personal courage. I found it tiresome. After a while, I started to question whether too-ready manifestations of courage were a virtue at all.

    Among that group, cherishing courage seemed associated with time-wasting, pointless exertion, reckless expense, thrill seeking, and utterly needless risk of life and limb—not infrequently while creating otherwise avoidable risk for others. There was little or no evidence that physical courage on display in abundance did much (or anything) to inculcate moral courage, which seemed in as short supply there as anywhere else. There was too much show-off, and too much strut.

    I concluded courage as a public virtue was problematic. In most instances the courage on display (and, admittedly, broadly admired) seemed more useless than otherwise. But from time to time, at long intervals, something happened where selfless courage was everything. Those times were the opposite of the staged show-courage which puts personal safety at risk deliberately. They were instead instances of unpredictable disruption or accident, when courage emerged impulsively, and was used only to quell some deadly emergency. That was another thing altogether, but not a common one.

    I see no evidence that a society which makes a public virtue of personal courage will as a result be better supplied with it during the infrequent instances when it is most needed. Likewise, I doubt courage is a skill, which improves with practice. Still less is it a personal virtue which can be inculcated by exhortation, or cultured by public admiration.

    In normal affairs, courage is a virtue rarely needed, but too often called for. When courage is needed, it is indispensable. Otherwise, the less of it on display, the better.

    1. True courage is doing the brave thing when no one can see it, or worse, when to everyone else it looks like cowardice.

      1. So rushing into a burning building at great risk to your own life in order to save someone’s else’s is not “true courage” unless there’s nobody there to see it, or if those present think it is somehow cowardly.

        Are all of your views based on bumper-sticker platitudes?

  18. In initially I wrote about unanswered issued I had discovered in law practice (I practiced LAW, that makes me am OLD professor). Then about stuff that came up in the courses I taught. Then about a social issue with Constitutional implications where I was offended by the lies and drivel that flooded the marketplace op ideas. Got others to join me. Made a difference too.

    After 30 years, I began co-authoring with younger professors who stimulated my mind and who could get published more easily or in “better” journals with me on board. That was a wonderful decade.

    Now I am retired and trying to catch up on all the non-intellectual fun I passed up (by choice) earlier. Cycling Europe, sailing the Med, stuff like that.

    1. You might get some original ideas while cycling or sailing. Watch out!

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