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Heritage Foundation's Clerkship Boot Camp

It's fine for ideological groups to try to teach their ideas, including to interested future law clerks -- but not to try to limit how the students use those ideas.

I just heard Adam Liptak of the New York Times talking about this on NPR tonight, and then tracked down his New York Times article; here are what seem to be the facts:

The closed-door "training academy" was aimed at a select group: recent law school graduates who had secured prestigious clerkships with federal judges. It was organized by the Heritage Foundation, a conservative group that has played a leading role in moving the courts to the right, and it had some unusual requirements.

"Generous donors," the application materials said, were making "a significant financial investment in each and every attendee." In exchange, the future law clerks would be required to promise to keep the program's teaching materials secret and pledge not to use what they learned "for any purpose contrary to the mission or interest of the Heritage Foundation."

Some thoughts about the program as reported, which has apparently now been abandoned.

[1.] I think it's fine for ideological groups to try to teach future judicial clerks whatever ideas they like, whether about originalism, textualism, living constitutionalism, or what have you. Doubtless those groups want to influence the law that way, likely not by influencing judges (clerks have very limited influence over their judges' opinions, and the program is likely to have limited influence over the clerks' opinions), but by making the clerks better at making certain arguments that the judges want to make already. But in any event trying to influence the law through education is quite legitimate -- just as it's legitimate for Harvard or Yale law professors, who know that many of their students will become clerks, to teach seminars that spread ideas that they think are sound. (Professors at law schools have some extra obligation, which ideological groups don't have, to provide students with a broad range of ideas, but they can certainly make sure to include and stress the ideas that they believe to be particularly wise.)

[2.] I think it's fine for liberals to do this as well as conservatives, but conservatives have an extra reason to do it: The teaching at most of the top law schools that produce the great bulk of judicial clerks generally leans left (you can like that or not, but I think it's pretty clearly so), so conservatives might well want to make sure that interested students get a good perspective on conservative views as well as on liberal views. Groups on the far left, or libertarians, or people who have other views that are likely undertaught at law schools may of course also take the same view.

[3.] Indeed, the judges who hire law clerks will likely want them to know more about various approaches to the law, whether they learn that in ideological programs or nonideological ones (if such things exist). Of course, conservative judges will want to make sure that their clerks are familiar with approaches that conservative judges tend to favor, since then the clerks will do a better job. But liberal judges will find it useful, too, for their clerks to understand various approaches. Sometimes, for instance, even liberal judges may want their clerks to draft opinions using approaches commonly associated with conservatives, such as originalism. And sometimes liberal judges may want their clerks to draft opinions effectively responding to such approaches.

[4.] A few people have tried to label this as "indoctrination," but that strikes me as quite inapt. The students are well-educated, generally highly intelligent adults; they aren't impressionable schoolchildren or laypeople easily blinded by professionals. They already largely believe in the things that the group wants to teach them; they go to learn how to better reason and argue in support of those beliefs. (Some may also go to make professional connections, but that surely isn't conducive to indoctrination, either.)

[5.] The real problem -- and it's a doozy -- is with the pledge, at least as it has been reported. Law clerks have a professional duty to do the best work they can for their judges. Lawyers have a professional duty to do the best work they can for their clients. If future clerks and lawyers learn some analytical tools or some ideas, they can't ethically promise to somehow withhold those tools or ideas from their bosses or their clients. And teachers can't ethically ask for such a promise (even if the promise is legally unenforceable).

[6.] The demand for a promise to keep the materials secret may also be wrong, though something depends on just what is being kept secret. If, for instance, there are some unpublished materials that the students are being asked not to distribute further, that's fine; on the other hand, if they are being asked to keep secret the general curriculum, that strikes me as troubling. Certainly they have to be prepared to answer their judges' questions about this, if the judges want to ask; and beyond that, this sort of secrecy is likely to breed unnecessary distrust.

But in any event, the key problem, as I said, is #5. One can imagine some situations in which people might be ethically required (or at least allowed) not to use certain knowledge in certain contexts, even for the benefit of clients -- but this isn't one of them.

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  • Ben_||

    If ethics demands an agreement be broken someday, that doesn't make the original agreement unethical. At most, it reveals that the original agreement didn't perfectly anticipate one particular happenstance. Unenforceable agreements need not anticipate every possible thing that might occur.

    Also, it's a NY Times story about a conservative group. What are the chances it's true and accurate and fair? Not likely.

  • Stephen Lathrop||

    Accuracy of the story is amply supported by the cancellation of the event. And its the Heritage Foundation, which puts political partisanship beyond question. Plus which, the Heritage Foundation does not dispute it was trying to keep the curriculum and teaching materials secret.

  • Stephen Lathrop||

    "it's" not "its"

  • Brett Bellmore||

    I apply a rule, similar to the spoilation of evidence rule in legal proceedings, to journalistic reports: If a report paraphrases rather than quotes, and merely throws in a sentence fragment for flavor, and does not even provide a link to the actual language that we used, I presume that the paraphrase is inaccurate.

    Because if the paraphrase were accurate, they could have simply quoted the original language, and could certainly have provided readers access to it.

    I have not often found this rule to go wrong.

  • Life of Brian||

    Supposedly this person captured the actual text from the website before it was taken down -- take it for what it's worth:

    (a) Keep strictly confidential, and not distribute to any other person, any written materials you receive from The Heritage Roundation or members of the faculty in connection with your participation as an accepted attendee of the Federal Clerkship Training Academy;
    (b) Not use any information received from The Heritage Foundation or members of the faculty in connection with your participation as an accepted attendee of the Federal Clerkship Training Academy for any purpose contrary to the mission or interest of The Heritage Foundation;
  • Eric Rasmusen||

    Note that the actual language reported in this comment is NOT what the original post said was problematic---analytical tools and ideas. "If future clerks and lawyers learn some analytical tools or some ideas, they can't ethically promise to somehow withhold those tools or ideas from their bosses or their clients. And teachers can't ethically ask for such a promise (even if the promise is legally unenforceable)." It was "information" that was not supposed to be used against the Heritage Foundation. That is entirely reasonable.

  • James Pollock||

    "Because if the paraphrase were accurate, they could have simply quoted the original language"

    So you don't understand why paraphrasing exists.
    There are several valid reasons to paraphrase professional language rather than quoting it outright. Avoiding jargon, for example.

    I don't trust journalists to understand professional issues... medical, legal, IT, engineering... because these areas require specialized education and experience to understand, and journalists were doing something else while the professionals were learning their professions.

    But I'm still a long way from "paraphrasing is always wrong". That's paranoid.

  • Brett Bellmore||

    No, the problem is that I DO understand why journalists paraphrase.

  • James Pollock||

    Well, then you should have explained THAT, instead of whatever it was you did here.

  • Stephen Lathrop||

    I wonder if you do understand, Brett.

    When I worked as a journalist, the most frequent reason I paraphrased was because I wasn't a court stenographer, and it was often impossible (for me) to remember verbatim something said aloud at paragraph length. Good journalistic practice in a case like that is to avoid making the report look verbatim, and instead to present it candidly and recognizably as a paraphrase. That, of course, has nothing to do with trying to put something over on suckers and paranoids.

    With access to a written source, it can be totally different. In those instances, you may want forthright, verbatim quotation, in adequate context.

    Sometimes, understanding that about the way journalists work can be a help when you are reading news attributed to an anonymous source. You may be able to estimate by the style of presentation whether a reporter was given access to documents, or only quoted from verbal accounts.

    But you can only estimate. Because a good reporter trying to protect an anonymous source who has access to documents will quite often paraphrase what the documents say, and not quote them verbatim. That somewhat hides from authorities and bosses the extent of access the leaker may enjoy. Doing that can greatly enlarge the circle of suspected sources, and protect leakers from retaliation. It is not uncommon to promise an inside source that he won't be quoted verbatim, and to promise also that all document references will be presented as paraphrases.

  • MatthewSlyfield||


    When I worked as a journalist, the most frequent reason I paraphrased was because I wasn't a court stenographer, and it was often impossible (for me) to remember verbatim something said aloud at paragraph length. Good journalistic practice in a case like that is to avoid making the report look verbatim, and instead to present it candidly and recognizably as a paraphrase. That, of course, has nothing to do with trying to put something over on suckers and paranoids.

    In the kind of situation you describe, you as the journalist have no way to properly judge the accuracy, or lack there of, of your paraphrase, unless you have a audio recording of the conversation/interview.

  • Stephen Lathrop||

    Slyfield, try re-reading what I wrote. I mentioned, among other things, paraphrases used when the reporter has possession of a document.

    In other instances, when the reporter relies on memory of some verbal utterance, the reporter will typically remember almost every word, but scruple to quote, as if verbatim, the few bits he isn't sure of. But memory for significance, derived from both recollection and notes, is notably better than memory for every bit of verbiage used. Typically, that will be enough to dispose of the kind of uncertainty you suggest. If it isn't, nothing requires that the inquiry end there. Any amount of follow-up to assure accuracy remains possible.

    Any rule of reading to suggest rejection of journalistic paraphrases as presumably false ought to be revised. Some journalistic sources are better than others. If you don't know how to recognize the reliable ones, little can help you. If your standard of unreliability is that something is a paraphrase, then nothing can help you—in a great many instances, you are going to end up trusting your own prejudices against reliable evidence to the contrary.

  • BillyG||

    I figure the best thing to do when discussing hit pieces, is to direct people to Scott Adams's discussing the hit piece against him.

  • Life of Brian||

    But I'm still a long way from "paraphrasing is always wrong".

    And then there's the complementary technique of putting quotes around words the person you're ostensibly quoting didn't actually say.

    The principle here, with which I wholeheartedly agree, is that when someone writes an article about a supposed smoking gun document that makes someone or some group look really bad, when they extensively paraphrase the document instead of letting it speak for itself, you can pretty much take to the bank that it doesn't say what they claim, in the way they claim, and/or to the extent they claim.

    The same principle generally holds true in legal briefs as well.

  • James Pollock||

    "And then there's the complementary technique of putting quotes around words the person you're ostensibly quoting didn't actually say."

    Mind pointing to where I attributed anything to someone that wasn't what they said?

  • Stephen Lathrop||

    The principle here, with which I wholeheartedly agree, is that when someone writes an article about a supposed smoking gun document that makes someone or some group look really bad, when they extensively paraphrase the document instead of letting it speak for itself, you can pretty much take to the bank that it doesn't say what they claim, in the way they claim, and/or to the extent they claim.

    Life of Brian, in cases of bad journalism, that could be true. But you would be mistaken to use that as a rule applicable to the work of, for instance, Seymour Hersh. Paraphrasing a document obtained from an anonymous source is pretty standard among good investigative reporters. If you quote the document verbatim, you all but certainly put the source among whatever group enjoys access to the document—which might be a very small group.

    Paraphrase the document, and you make retaliation against the source a much more difficult problem. Anyone trying to identify the leaker will in many cases have to consider an almost unlimited number of people, including any who may have heard about the document's contents second- or third-hand, or even including people who may have deduced the document's existence by observing policy and reading memos.

  • SKofNJ||

    Very good point. When I was an appellate prosecutor and read briefs attacking judicial rulings or the summations of prosecutors, I always looked for the quotes. When I saw that there were no quotes or only very short ones, I knew that the argument was meritless.

  • Smith_FT_MI||

    I can't agree that this is necessarily a good rule. (If you are discussing lower tribunal proceedings in the matter being appealed, rather than precedents, this might be true, but if the latter not so.)

    The holding of a precedent may be so clear that simply citing the page of the opinion is sufficient. Rather, if the holding seems to be contrary to the position of the proponent, but the factual circumstances ameliorate its adverse effect, then quotes are appropriate and required. Accordingly the absence of quotes may indicate an argument with substantial merit.

    Plus, the page limitations on briefs (at least in some jurisdictions) inhibit the use of quotes - as well as sometimes, by the expansion of verbosity, distract from the argument. In my opinion the best and most-experienced litigators utilize summaries rather than quotations.

  • Sarcastr0||

    If you truly think the press has no problem with lying to further liberalism, why would you bother to give credence to actual quotes and not to paraphrases?

  • Eric Rasmusen||

    The liberal press does know a bit about defamation law. Cheating on actual quotes pushes you over the line to deliberate malice and you're in trouble even if it's a public figure you're defaming.

  • Sarcastr0||

    I don't believe directly lying in a quote would make it any easier to prove actual malice than directly lying in a paraphrase.

    What it looks more like to me is that the press aren't all lying liberal tools and Brett (and you it seems) just selectively lean on that narrative to keep your reality clean when the facts they report are inconvenient.

    Sometimes people on your side are as bad as reported. Having a presumption of fake news is no way to go through reality.

  • James Pollock||

    "What it looks more like to me is that the press aren't all lying liberal tools"

    The accusation doesn't even make sense. "The media" consists almost entirely of large powerful corporations, and large powerful corporations tend towards old-fashioned conservatism ("peel back regulations so I can make more money" + "Cut my taxes so I can keep more of the money I made"). That's not even counting the huge number of channels that exist primarily to deliver religious programming.

    One need look no further than Sinclair Media Group, which got caught requiring all their local television reporters to read a corporate statement (which was shady, because the text to be read didn't reveal that it was a corporate statement.)

  • Brett Bellmore||

    On the other issue, to be sure the Heritage Foundation has now canceled. This looks bad, but has other potential explanations. Fear attendees will be doxed or attacked, for example. Or that the event will be infiltrated and disrupted.

    And, why wouldn't the Foundation value its IP?

  • Rev. Arthur L. Kirkland||

    From Mr. Bellmore's perspective, Pres. Obama's birth certificate had "other potential explanations" (or "alternative facts"), too.

    Carry on, clingers.

  • James Pollock||

    "On the other issue, to be sure the Heritage Foundation has now canceled. This looks bad"

    It does. There's a fairly small number of things that need to be done in secret that aren't shady.

    "why wouldn't the Foundation value its IP?"

    Microsoft values its IP. They also run an education program. They don't require participants to swear never to act against Microsoft's interests, nor to keep the curriculum secret.

  • Ben_||

    We live in a world where Mitch McConnell and his wife can't eat a meal at a restaurant in peace. Everyone would be wise to do everything in secret.

  • James Pollock||

    "We live in a world where Mitch McConnell and his wife can't eat a meal at a restaurant in peace."

    Correction.
    We live in a world where the consequences of Mitch McConnell's actions and choices have caught up to him.
    If you want to live in a world where consequences of people's choices don't catch up to them, I don't know what to tell you.

  • Ben_||

    Consequences escalate. Harassment leads to violence, which leads to more violence. Is that the world you want? You and your family and friends won't be safe in that world.

    The original point remains: everyone would be wise to to everything in secret, because you never know when evil people will decide to subject you to "consequences".

  • James Pollock||

    "Consequences escalate. Harassment leads to violence, which leads to more violence. Is that the world you want?"

    I have to live in the world I live in, whether it's what I wanted or not. That's the nature of reality.

    "The original point remains: everyone would be wise to to everything in secret, because you never know when evil people will decide to subject you to 'consequences'"

    If you're paranoid, that's absolutely correct.
    The thing about "consequences" is that they, in turn, have consequences. When evil people do evil things, there are consequences. I choose not to live in fear. If you do, that's your choice, and, you guessed it! your consequences.

  • ||

    I'm hoping that at some point, Republicans become the monsters liberals say they are.

  • SKofNJ||

    So it would be okay with you if "Ben -" were to toss your dinner out on the street if he happened to come across you eating at a restaurant? Or are such consequences to be reserved only for Republicans?

  • James Pollock||

    "So it would be okay with you if "Ben -" were to toss your dinner out on the street if he happened to come across you eating at a restaurant?"

    There would be consequences.

  • Ben_||

    Consequences escalate.

  • James Pollock||

    "Consequences escalate."

    Such is life.

  • SKofNJ||

    So, to be plain, you're in favor of violence as a response to people who disagree with your political views. It's okay if Ben throws out your dinner because then you'll get to punch him in the nose. Do you also support pro-life people shooting abortion providers so long as the abortion providers get to shoot back?

  • Rev. Arthur L. Kirkland||

    People who express their objection to a public official's performance in public settings have every right to do that and should be encouraged, particularly with respect to public officials who generally hide behind security details, special privacy privileges, exclusive events, and the like.

    They are not entitled to assault a public official or harm property. whoever, and the jerks who harassed Sen. McConnell -- not those who stated their opinions but those who took his food -- sound roughly as bad as the mean-spirited boors who abuse women seeking to enter abortion clinics.

  • James Pollock||

    "So, to be plain, you're in favor of violence as a response to people who disagree with your political views."

    Would you mind not attributing to me things I didn't say? Thanks.

  • SKofNJ||

    Haven't done that yet.

  • James Pollock||

    "Haven't done that yet."

    I quoted you doing that. For your convenience, here it is again:

    "So, to be plain, you're in favor of violence as a response to people who disagree with your political views."

    So, again, asking nicely, would you mind not attributing to me things I didn't say? Thanks.

  • SKofNJ||

    Again I say, haven't done that yet.

  • Stephen Lathrop||

    Organize, systematize, and fund politically partisan corruption of the judiciary. And keep it secret. That's what this is about. In consequence, court confirmation hearings ought now include demands that the candidate disclose and discuss whether he/she has been funded for any purpose, by any politically activist organization whatever. Reject for lack of judicial temperament the candidates which attend these things, whether they have been funded or not.

    Of course, would-be clerks are not the only judicial actors who need attention. It has been commonplace for even sitting Supreme Court justices to lend their names and judicial prestige to overtly partisan efforts of this sort—some of them at think tanks, others at ostensibly academic venues—albeit venues which have themselves been anonymously and purposefully funded by political partisans. As a first step, any private venue which purports to take a hand in training the judiciary, including every academic law school in the nation, should be required to name publicly the sources of its funding.

    And any political party which gets the power to do it ought to use Congress to identify sitting judges who have supported partisan organization among the judiciary, with an eye to investigating those judges for impeachment. It should not be at all difficult to assure that any such process targets sitting judges on the basis of both left- and right-wing politicizing. There have been plenty on both sides.

  • Careless||

    So you're going to start impeaching people involved with the ACLU and ABA?

  • Stephen Lathrop||

    Careless, among others, I urge impeachment for RBG. Hope that answers your question.

    My expectation is that few, if any, of the current SCOTUS justices could pass the scrutiny I suggest. In addition to RGB, I know of overtly partisan conduct by Thomas, Alito, and Gorsuch. That's enough to make me expect partisan political activity by justices has become the norm, and that they all do it. If so, it would be fine with me to see them all impeached, and have the Supreme Court bench restocked in its entirety, under procedures that once again gave proper emphasis to judicial temperament, with special attention to avoidance of overt political partisanship.

    Could you join me in that?

  • Stephen Lathrop||

    Professor Volokh deserves credit. Opening this topic for discussion is a welcome counter to critics (including me) who have sometimes criticized this blog for a too-partisan selection of topics.

  • librarian||

    2nd that

  • Rev. Arthur L. Kirkland||

    I agree.

  • librarian||

    Ugh, if there were just one more reply we could have kept him listening to NPR, turned him into a wuzzy liberal, and toppled the patriarchy,. I'm so disappointed in you people :\sarc

  • Stephen Lathrop||

    On, "[1.], I think it's fine for ideological groups to try to teach future judicial clerks whatever ideas they like, . . . " Well, maybe. But it's not fine for future clerks to take them up on it. And especially not fine to be getting funded to do it, in secret.

    More generally, academic law schools, including those few which show conservative tendencies, are not comparable to politically partisan think tanks. There is no equivalence in the ethical premises which guide these two very different types of organizations.

    If conservatives think "liberal" law school faculty are improperly indoctrinating future judges, the right response is not to substitute the anything-goes ethics of partisan politics to achieve "balance." The right response would be to open competing academic law schools, operated on ethical principles suited to that class of purposeful institution, and then teach those competing principles within an academically ethical framework.

  • Martinned||

    Yes. I found it more than a little disturbing to see a (respected) law professor argue that law schools are basically equivalent to think tanks, except on the left.

  • Brett Bellmore||

    What, it's disturbing to have the truth spoken?

  • Careless||

    Disturbing to have someone publicize what you thought people didn't realize?

  • James Pollock||

    " I found it more than a little disturbing to see a (respected) law professor argue that law schools are basically equivalent to think tanks, except on the left."

    I don't think that's the argument. I think the argument is that liberals like academia, and are thus willing to take positions that pay less, but offer the ability to influence the future (the reason you don't see more conservatives teaching at or running law schools is that teaching law pays far less than practicing law, or running a business that practices law, and conservatives tend to pursue those opportunities that pay better. There's nothing wrong with earning a big pile of money, but doing so tends to be fairly time-consuming, leaving less time for other things.)

  • Eddy||

    And I think it illustrates the basic selflessness and caring of so many leftists that they deliberately take a pay cut so that they can be in academia and impart the truth to the rising generation, rather than selfishly taking those soulless high-paying jobs. The only down side is that they leave the high-paying jobs for obviously less-qualified conservative goobers.

  • James Pollock||

    It isn't selflessness. It's having different priorities.

    When Joe Athlete takes a pay cut in order to play for a team that has a good chance at winning a championship, that isn't "selflessness" either.

    "they leave the high-paying jobs for obviously less-qualified conservative goobers."
    Sometimes, maybe. There certainly are some high-paying jobs that can be done by people with little or no qualification for them, but most jobs require talent, effort, and usually both.

  • Eddy||

    I should have added a sarcasm tag, thus: "/sarc"

  • David Nieporent||

    Yes. I found it more than a little disturbing to see a (respected) law professor argue that law schools are basically equivalent to think tanks, except on the left.

    Why?

  • Sarcastr0||

    Because it's not true. And, as a law professor, he knows better than that.

    Because once you think that, a whole lot of overtly partisan shenanigans become vital efforts because you've convinced yourself the other side has been doing them all along.

  • SimonP||

    Eugene has long given up any pretension that he's anything other than a reasonable-sounding hack for movement conservatives.

  • Rev. Arthur L. Kirkland||

    The right response would be to open competing academic law schools

    Everybody knows what that will not occur. There are important reasons our strongest schools are liberal-libertarian institutions, and important reasons America's conservative-controlled schools are third- and fourth-tier (if not unranked) goober factories.

  • DjDiverDan||

    "Everybody knows that will not occur." Exactly. As long as the ABA has a monopoly on law school accreditation, it can insure that only those law schools which cling tightly to the leftist orthodoxy of the ABA can get accredited.

  • James Pollock||

    " As long as the ABA has a monopoly on law school accreditation"

    The ABA only has a monopoly on ABA accreditation. Law schools remain free to pursue other accreditation, or no accreditation, as they see fit.

  • David Nieporent||

    The ABA only has a monopoly on ABA accreditation. Law schools remain free to pursue other accreditation, or no accreditation, as they see fit.

    Sure; heck, they can be accredited by the National Hockey League if they want. But in most states, ABA accreditation is required by law, and any other accreditation has no legal effect.

  • James Pollock||

    " in most states, ABA accreditation is required by law, and any other accreditation has no legal effect."

    Neither of these statements is true.
    What IS true is that most states require candidates for the bar have an ABA-accredited law degree as a precondition to considering their applications.
    This means that when you open your non-accredited law school, your graduates will not be able to sit for the bar exam. I suggest that you recruit students who want to practice in states that allow candidates without ABA-accredited law degrees, or students who do not intend to practice law, when you start out.
    Then, once you've graduated a few people who actually ARE qualified to practice law, start asking states to allow your students to sit for the bar exam.
    Then, once your graduates start passing bar exams, other states will start to allow your graduates to apply.

    Oh, and somewhere in there you'll want to look into regional accreditation, so your students can apply for (and use) federal student aid programs.

    If you got this far and said "Oh, no, that's too much work!", well, that's why the ABA has a monopoly. The law schools that jumped through its hoops and continue to do so are backed by an organization that is respected by the authorities who manage bar applications. That organization didn't get there by taking the easy way.

  • David Nieporent||

    This means that when you open your non-accredited law school, your graduates will not be able to sit for the bar exam.

    Which means that your argument is pure pedantry. A law school whose graduates can't practice law isn't a law school by any reasonable definition. In fact, it isn't much of anything. And isn't relevant to this discussion.

    In fact, your entire comment is a red herring. "The ABA doesn't have a monopoly because something could happen in the future to take away their monopoly" is not an argument.

  • James Pollock||

    "Which means that your argument is pure pedantry. A law school whose graduates can't practice law isn't a law school by any reasonable definition"

    Half of the graduates of accredited law schools don't practice law. Also, yes, I noticed the selected quote followed by the false answer... graduates of non-accredited law schools cannot practice law IN SOME STATES, which is not the same thing as cannot practice law.

    So, your response is not to be taken seriously.

    "'The ABA doesn't have a monopoly because something could happen in the future to take away their monopoly' is not an argument."

    Well, it's certainly not MY argument.
    Compare what I wrote:
    "The ABA only has a monopoly on ABA accreditation."
    to what you read:
    "The ABA doesn't have a monopoly because something could happen in the future to take away their monopoly"

  • David Nieporent||

    Half of the graduates of accredited law schools don't practice law.

    Not by choice. What percent go to law school with the intent of not practicing law? (I think there was 1 out of roughly 200 in my law school class.)

    Well, it's certainly not MY argument.

    It certainly was. The claim you were responding to was "ABA has a monopoly on law school accreditation," and your claim was that they really didn't because someone could found an unaccredited law school and then years down the road ask states to allow your students to sit for the bar in those states. It was an incredibly stupid argument, and I can see why you're backing away from it now.

  • James Pollock||

    "Not by choice. What percent go to law school with the intent of not practicing law? (I think there was 1 out of roughly 200 in my law school class.)"

    About half. This is a consistent statistic, true for decades. Look it up instead of whining about it, or pretending to speak for other people.

    " The claim you were responding to was "ABA has a monopoly on law school accreditation,""

    And I said that claim was false, because it is false. I'm sorry that you find this truth so difficult, but that's your problem, not mine. Buh-bye.

  • Rev. Arthur L. Kirkland||

    The ABA accredits goober factories (Regent, Liberty, Samford, Ave Maria).

    Right-wing complaints about accreditation are daft. Our society accredits schools that teach nonsense in an effort to appease the ignorant, gullible, superstitious, and backward.

    The reason conservatives and Republicans -- who have plenty of resources and plenty of motivation -- do not emulate Cal-Irvine is that movement conservatism is incompatible with high-quality legal education.

  • Eddy||

    "If conservatives think "liberal" law school faculty are improperly indoctrinating future judges"

    It's not indoctrination, it's *inoculation* - protecting their delicate students against the infection of legal heresy!

    /sarc

  • Rev. Arthur L. Kirkland||

    Don't fret, Eddy . . . Ave Maria, Samford, Regent, Brigham Young, George Mason, Liberty, and the like continue to pump out classes of right-wing lawyers each year.

    The mainstream liberal-libertarian alliance, meanwhile, must make do with Harvard, Yale, Columbia, NYU, Michigan, Penn, and Berkeley graduates.

    I know which side of this divide has been winning America's culture war for more than a half-century. I know which side I am on. I know which side I expect to prevail as America continues to improve.

    I do not worry much about whether the Federalist-Heritage-Breitbart -Bradley-RedState-Olin-Fox side is going to change the arc of American progress against my preferences for reason, tolerance, science, modernity, diversity, education, and liberty. Over all but the shorter terms, backwardness, ignorance, superstition, intolerance, unearned privilege, and insularity are losers in America.

    Carry on, clingers.

  • David Nieporent||

    If conservatives think "liberal" law school faculty are improperly indoctrinating future judges, the right response is not to substitute the anything-goes ethics of partisan politics to achieve "balance." The right response would be to open competing academic law schools, operated on ethical principles suited to that class of purposeful institution, and then teach those competing principles within an academically ethical framework.

    That doesn't make any sense in this context.

    Problem: People who go to (e.g.) Yale Law School are not being sufficiently exposed to non-liberal ideas.
    Solution: Open up a new law school that exposes its students to non-liberal ideas.

    See the issue? Your solution doesn't solve the problem. It tries to counterbalance it, not solve it. It doesn't do anything for all for people who went to Yale Law School. It's not like the people who graduate from Yale Law are going to spend another three years at a different law school.

  • James Pollock||

    "Problem: People who go to (e.g.) Yale Law School are not being sufficiently exposed to non-liberal ideas."

    You're assuming this is a problem in the institution. It is not. It is a problem in the individual.

    People who go to Yale who have an interest in or already hold non-liberal ideas can find experiences and knowledge that have non-liberal bent to them.

    Most of the graduates of Yale law (and other T1 law schools) are liberal, or liberal-leaning. This is so NOT because Yale forces law students to be liberal, but because most of the top applicants for law school are already liberal, and Yale gets to pick from most of the best-qualified applicants.

    Meanwhile, over in the business school, most of the applicants are more conservative. Over in the engineering school, most of the applicants are actively resistant to politics. Does this mean that a person who is particularly liberal but is interested in a career in business management can't obtain a quality education from a b-school that is calibrated for Conservative-leaning students? No, it does not. But there might be a market for a b-school that taught business management with a liberal bias... just as there might be a market for a law school that teaches law with a Conservative bias.

  • Rev. Arthur L. Kirkland||

    There is a market for law schools that teach with a conservative bias. There are law schools that teach with a conservative bias. They tend to be weak schools.

  • David Nieporent||

    People who go to Yale who have an interest in or already hold non-liberal ideas can find experiences and knowledge that have non-liberal bent to them.

    To a limited extent.

    Most of the graduates of Yale law (and other T1 law schools) are liberal, or liberal-leaning. This is so NOT because Yale forces law students to be liberal, but because most of the top applicants for law school are already liberal,

    [Citation needed.]

  • James Pollock||

    "To a limited extent."

    Limited only by their own desire to pursue them.

  • ME2R||

    Or since many, if not all of those law schools rely on taxpayer money (either directly or via student grants), perhaps a regulation prohibiting public funding of any institution which practices viewpoint (partisan) discrimination in hiring or teaching philosophy. See problem solved by expanding the applicability of Janus!

  • James Pollock||

    "Or since many, if not all of those law schools rely on taxpayer money (either directly or via student grants)"

    You're poorly informed.
    Law schools are post-baccalaureate. Student grants go to students pursuing 2 and 4 year degrees. Go the free government money spigot has already been turned off for law students. They can get government-backed loans, and big ones, but those get paid back.

  • David Nieporent||

    You're poorly misinforming him. Whether the federally guaranteed student loans get paid back vel non (sometimes) is between the student and the lender, and is irrelevant to the point he was raising, which is that law schools (like other institutions of post-secondary education) are dependent on taxpayer money.

  • James Pollock||

    "You're poorly misinforming him"

    You're arguing poorly.

    " Whether the federally guaranteed student loans get paid back vel non (sometimes) is between the student and the lender"

    The lender is the U.S. government, and the Dept. of Education collectors make the IRS look like quitters.

    "that law schools (like other institutions of post-secondary education) are dependent on taxpayer money."

    True, on the technicality that anybody who has any money is a taxpayer, and any business is dependent on money, and therefore on "dependent on taxpayer money".

    Law schools are like any other business... they provide goods or services to customers, and customers either decide they value the goods and services enough to pay for them, or the business eventually shutters.

    Research universities are dependent on taxpayer money, because government provides grants to the university to pay for research. Law schools are dependent on taxpayer money, because the money they get comes from adults, who pay taxes. You can pretend these are equivalent, if you want, but that won't make it true.

  • David Nieporent||

    I can't tell whether you're mendacious or ignorant. Or both.

    If federally guaranteed student loans (or direct federal lending to students) did not exist, a large percentage of law schools (and other schools of higher education) would shutter their doors. And those represent federal expenditures, not private expenditures of money from people who happen to be taxpayers.

  • James Pollock||

    "I can't tell whether you're mendacious or ignorant. Or both."

    You left out the third (and correct) option, that you're just dumb.

    "If federally guaranteed student loans (or direct federal lending to students) did not exist, a large percentage of law schools (and other schools of higher education) would shutter their doors."

    That's nonsense. If federal lending for students stopped overnight, students would find someplace else to borrow from.

    "And those represent federal expenditures"

    The federal government makes money on student loans.

  • David Nieporent||

    That's nonsense. If federal lending for students stopped overnight, students would find someplace else to borrow from.

    Sure. Lots of private lenders want to lend tens or even hundreds of thousands of dollars to people with no collateral and no hope of paying back the loans.

    "And those represent federal expenditures"

    The federal government makes money on student loans.

    No, it doesn't. The notion that it does is the artifact of an unreasonable accounting method that Congress has required the CBO to use in officially assessing the federal student loan program. Using a more normal method, the CBO has calculated that the government loses a significant amount of money on student loans.

  • James Pollock||

    "Sure. Lots of private lenders want to lend tens or even hundreds of thousands of dollars to people with no collateral and no hope of paying back the loans."

    Yup. You should see how many credit-card applications get sent to those exact same people... except student loans are presumptively excluded from bankruptcy discharge, and credit cards aren't.

  • David Nieporent||

    Credit cards are revolving lines of credit for which payments must be made each month, and for which people use to buy things that can be repossessed. People with no income and no credit history do not (at least not without cosigners) get credit cards with tens of thousands of dollars of credit limit that do not need to even start being paid back for years.

  • Sebastian Cremmington||

    Remember Regent Law School? The US Attorney scandal?

  • Martinned||

    Just came across a new paper by Ash, Chen, and Naidu that is relevant here:

    This paper provides a quantitative analysis of the effects of the law and economics movement on the U.S. judiciary. Using the universe of published opinions in U.S. Circuit Courts and 1 million District Court criminal sentencing decisions linked to judge identity, we estimate the effect of attendance in the controversial Manne economics training program, an intensive two-week course attended by almost half of federal judges. After attending economics training, participating judges use more economics language, render more conservative verdicts in economics cases, rule against regulatory agencies more often, and render longer criminal sentences.

  • Eddy||

    "rule against regulatory agencies more often"

    Horrors!

    "render longer criminal sentences"

    That part is troubling...which economic doctrine teaches that federal judges need to hand out even longer sentences?

  • James Pollock||

    ".which economic doctrine teaches that federal judges need to hand out even longer sentences?"

    The people who have economic power look poorly on crimes that diminish their economic power. People who have stuff are less apt to accept thievery than are people who have nothing left to steal.

  • Eddy||

    What kind of crimes are we talking about - drugs, wire fraud, human trafficking, littering in federal parks?

  • James Pollock||

    "What kind of crimes are we talking about"

    "crimes that diminish their economic power."

    The exact same law prevents both rich men and poor men from living under the bridges and sleeping in the streets. Who is that law FOR?

  • Eddy||

    I wasn't familiar with the Federal No-Sleeping-Under-Bridges Act (FNSUBA).

  • James Pollock||

    Ah. You think you're funny. Never mind.

  • Eddy||

    You're supposed to say, "leave it to a troll to joke about sleeping under bridges."

  • James Pollock||

    Will you go away if I pretend to laugh at your bad jokes?

  • bernard11||

    which economic doctrine teaches that federal judges need to hand out even longer sentences?

    This idea was advocated by the Nobel-winning Gary Becker, a conservative/libertarian economist at the University of Chicago. Becker also developed the mistaken (IMO) libertarian theories of discrimination.

    You can read a good discussion by Alex Tabarrok of Becker's idea about sentencing here.

  • David Nieporent||

    Yes, and as was discussed about the paper, it's wholly implausible. The educational industrial complex has struggled for years to come up with interventions that move the needle infinitesimally for even the most impressionable young students, and yet a two-week class taken by established middle-aged adults has such massive effects that it not only measurably changes their behavior, but also the behavior of their colleagues who haven't even taken the class?

  • James Pollock||

    So THAT'S why it's all hush-hush.

  • David Nieporent||

    You are confused. We are not talking about the Heritage program. We are talking about the Manne program.

  • James Pollock||

    "You are confused. We are not talking about the Heritage program"

    Must have been the headline that threw me off.

  • David Nieporent||

    Must have been the headline that threw me off.

    Apparently you don't understand, inter alia, how nested comments work.

  • apedad||

    An 'inter alia' sighting! Love it.

    That's my second favorite Latin phrase after 'ceteris paribus.'

  • James Pollock||

    Apparently you don't understand, inter alia, how humor works.

  • Brett Bellmore||

    I don't see a problem with the pledge, "as reported".

    First, because I have no particular confidence the substance of the pledge was accurately reported, for the reasons I gave above.

    But also, because a purpose of the Heritage Foundation is to see the Constitution honestly interpreted, (As they understand it, sure, but that's obvious.) and the pledge thus doesn't conflict with the student's obligation to do so, it reinforces it.

  • James Pollock||

    "But also, because a purpose of the Heritage Foundation is to see the Constitution honestly interpreted, (As they understand it, sure, but that's obvious.)"

    If they have to do it in secret, something is shady. Thieves work in shadows, and so do corrupt politicians. And so does... the Heritage Foundation protecting the Constitution?

  • Dilan Esper||

    That pledge violates rules of professional conduct. Forcing young ambitious lawyers to sign it is outrageous.

    If any Heritage lawyers were in involved in drafting it they should be disbarred.

  • Rev. Arthur L. Kirkland||

    I would not disbar them.

    Losing the culture war and experiencing a lifetime of watching America continue to progress in a liberal-libertarian direction, against their wishes and efforts, is consequence enough.

  • Rev. Arthur L. Kirkland||

    The Conspirators will continue to wonder why strong, liberal-libertarian schools decline the invitation to emulate our conservative-controlled campuses (third- and fourth-tier schools shackled by censorship, loyalty oaths, conduct codes, rejection of academic freedom, and the teaching of nonsense) by increasing the number of right-wing partisans on faculties.

    Right-wingers will continue to wonder why they have lost the culture war.

    Republicans will continue to wonder why it is becoming increasing difficult to lash together an electoral coalition for backwardness and bigotry.

    And all of them will wonder why someone had to spill the beans on Heritage Foundation "training academy" for judicial clerks.

  • Rev. Arthur L. Kirkland||

    Every federal judge should ask prospective clerks whether they signed the Heritage Foundation's documents and dismiss any who did.

    Our system's structural amplification of yahoo voices ensure that there are plenty of right-wing judges ready to hire any fledgling voices for backwardness and bigotry who find themselves in need of expanded employment horizons.

  • James Pollock||

    "Every federal judge should ask prospective clerks whether they signed the Heritage Foundation's documents and dismiss any who did."

    No. They should ask, and dismiss any who lie about it. They should ask if the Heritage Foundation's training will adversely affect their work, and dismiss any who will be or turn out to be. And if there's anything in the training that is contrary to proper work as a law clerk, it should be disclosed and ridiculed... but that's an if, not a foregone conclusion.

  • Rev. Arthur L. Kirkland||

    They should ask if the Heritage Foundation's training will adversely affect their work, and dismiss any who will be . . .

    How would one determine this? Do you expect admissions?

    Signing a document that requires a prospective employee to conceal secret "training" from the employer is ample foundation for termination consequent to the severe lack of judgment involved.

    That these are public employees compounds the offense.

  • James Pollock||

    "How would one determine this? Do you expect admissions?"

    Anyone who hires people has to screen out people who are not qualified for them, and people who, although qualified, are not well-suited. The principles of hiring are well-established, if not entirely scientific.

    "Signing a document that requires a prospective employee to conceal secret "training" from the employer is ample foundation for termination consequent to the severe lack of judgment involved."

    No, it isn't, unless it adversely affects on-the-job performance. A fact which has not yet been established.

    The obvious analogy for the legal profession is AA. Does drinking too much affect job performance? Yep. Does stopping? Yep. Is it any business of the employer what happens in the AA meeting? According to you, it sure is.

    I got training on how to better use Westlaw to search for legal precedent. If I don't mention that in the interview, should I get fired? What if the employer is a Lexis shop? Or (gasp) a non-profit that can't afford to do anything but research the hard copies in the library?

  • David Nieporent||

    The obvious analogy for the legal profession is AA. Does drinking too much affect job performance? Yep. Does stopping? Yep. Is it any business of the employer what happens in the AA meeting? According to you, it sure is.

    That's not really an analogy at all. AA does not purport to offer job training. If it did, then of course it would be the business of the employer.

    AA also doesn't require people to swear that while on the job they will only act in the interests of AA.

  • James Pollock||

    "That's not really an analogy at all. AA does not purport to offer job training."

    Depends on how you define "job training". AA offers a program to help participants deal with all aspects of their lives, including their employment, does it not?

    Nobody gets fired for going to AA and not telling their employer what happened in the meeting(s) they went to. Some get fired for needing to go to AA, but that's not the same thing at all.

  • Rev. Arthur L. Kirkland||

    Will any Conspirator exhibit the courage required to acknowledge participation in this clustermuck?

    The Heritage Foundation turtled within moments of illumination of this project. I expect the Conspirators to do the same. I will salute any Conspirator (or judge) who possesses enough character to refrain from hiding a decision to participate in the Heritage Foundation judicial clerk program.

    If logistics could be arranged, I would reward that character and courage, if revealed here, with free beer. I have at least a dozen cases of beer ready to go. Any takers in Philadelphia? Cleveland (some spiffy earbuds would be part of the package)? D.C.?

  • Tall Paul||

    The liberals have places that do the same thing as the Heritage Foundation. They are called "law schools."

  • James Pollock||

    Yeah. "Law schools" are well-noted for keeping secret their curriculum, and requiring their students to not disclose what they learned to anyone, even their future employers.

  • bernard11||

    And also for requiring students to promise to never use what they learned

    "for any purpose contrary to the mission or interest of" the law school.

  • Rev. Arthur L. Kirkland||

    Other than those points, though, great comment, Tall Paul!

  • Sarcastr0||

    I dunno, I love it when partisans Kramer into the thread and provide the pithy, low-hanging fruit the more savvy conservative commenters generally merely intimate.

  • DASGUY||

    Some Reverends are more equal than others or so they think.

  • Rev. Arthur L. Kirkland||

    May the better ideas win.

    Long live the meritocracy!

  • bernard11||

    The big flaw here is taking Heritage to be a serious intellectual enterprise, rather than just a source of right wing hackery.

    Even if you agree that top law schools have a liberal bias - which is to say a bias towards reality - they still have a few conservative faculty members.

    How many liberals are involved in the Heritage indoctrination classes?

  • James Pollock||

    "The big flaw here is taking Heritage to be a serious intellectual enterprise"

    They're (usually) honest about what their political and ideological bias is. That honesty can be used to assess the trustworthiness (and possibly rigor) of their output. Unless they started making people pretend not to be influenced by them, or something.

  • bernard11||

    Yes. Usually.

    But that doesn't make them intellectually serious.

  • SimonP||

    The sort of commentary on this program that might be helpful, coming from a law professor, is the extent to which an independent judiciary and the rule of law needs to be protected from these kinds of partisan efforts - or, if it should turn out to be the case, whether it is pointless to speak of a truly "independent" judiciary or a non-partisan "rule of law" at all.

    A lengthy apologia employing rhetorical tricks that might make good fodder for a future LSAT exam is not what I would describe as a helpful contribution from a law professor.

  • apedad||

    HA! Just another example of pubs hypocrisy and weakness.

    They're always complaining about the "deep state" within our govt, and yet here they are (if the story is true), trying to building their own little clandestine network.

    Pathetic...

  • tkamenick||

    Isn't another problem that they're being provided these things for free? Maybe it's not strictly illegal or in violation of any government ethics codes if they're not employees YET, but it's still troubling.

  • James Pollock||

    "Isn't another problem that they're being provided these things for free?"

    Here is your allegedly humorous ideologically-based response:
    It's only bribery if you're given something OF VALUE for free. Being given something that has no value for free is a wash, and therefore not a bribe.
    This has been your allegedly humorous ideologically-based response.
    Have a nice day.

  • WillDD||

    It sounds like someone at Heritage was trying to emulate the so-called "baby judges" school that the Federal Judicial Center runs for newly-appointed judges. As I understand it, that program also asks participants -- and it seems that all newly-appointed judges participate -- to keep the program's contents confidential.

    It would probably be a good idea if there was such a program for federal law clerks, but the judges (especially experienced judges) they are going to clerk for usually have their own ideas on how things are done in their chambers. (Some of those are very specific and not all judges agree on such things.)

    I suspect there is a lot less intrigue here than the NYT would think.

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