Archive for the ‘Law School’ Category

Thoughts on the Sotomayor Hearings

Written by Rebecca Zietlow on July 16th, 2009

When I wasotomayor.jpgs a first year student at Yale Law School, some of the upper level students organized a conference on “Women of Color and the Law.”  The speakers at this conference spoke about the failure of our law to adequately address the needs of women of color, and the role of women of color as lawyers.  The conference had a strong impact on me and my friends.  While in law school, we focused in our classes and our extracurricular activities on the law’s relationship to women of color and other people who have been historically disempowered in out society.  After law school, as a legal services lawyer in the South side of Chicago, I personally witnessed the failure of the law to address the needs of my clients, who were primarily women of color.  Now, there is a woman of color, Sonya Sotomayor, who is about to become a member of the top Court in our country.  I never would have imagined this moment when I was in law school, or when I was a practicing lawyer.

As far as I know, Sotomayor was not present at the Women of Color Conference.  It occurred years after she graduated from Yale.  However, during her hearings she has found herself discussing some of the issues addressed by the speakers at that meeting – the impact of a experience on how a person understands the law, and the importance of a judge mitigating his or her personal views when he or she is interpreting the law.  In a world dedicated to the myth that justice is blind (that is, that judges are not influenced by their backgrounds and experiences), her nuanced explanations are a tough sell.  Fortunately, she is maintaining her composure, and her strong record and the large Democratic majority in the Senate virtually insure that she will be confirmed.  I look forward to that day.

Sotomayor and Race

Written by Rebecca Zietlow on June 4th, 2009

Given the years of virulent racism that minorities in our country have faced throughout our history, it is a bit shocking to see right wingers like Newt Gingrich and Rush Limbaugh accuse Suprefinal-4.jpgme Court nominee Sonia Sotomayor, the first Hispanic ever nominated to that Court, of being a “racist,” based solely on one remark that she made in a speech seven years ago.   On this subject, I highly recommend Charles Blow’s recent New York Times editorial, “Rogues, Robes and Racists.”   As Blow notes, there is no evidence in Sotomayor’s life, legal career or judicial record of her ever acting like a racist.  Blow contrasts Sotomayor’s record with that of Chief Justice John Roberts, who was reported by Newsday magazine to have made racist and sexist jokes while working in the White House for the President Reagan.  What is most significant is that Roberts didn’t just talk the talk, he has spent his entire career walking the walk, working to roll back the civil rights gains of women and minorities from the 1960s and 1970s.  As Bobby notes below, quoting Jeffrey Toobin, Roberts has continued this pattern as Chief Justice, ruling against criminal defendants, non-white civil rights plaintiffs (he ruled in favor of the white plaintiff challenging the use of race to avoid the re-segregation of Seattle public schools) and plaintiffs suing corporations.  Does that mean Roberts is a racist?  Not necessarily, but as Blow observes, there is a heck of a lot more evidence of his racism than there is of Sotomayor’s.

Blow’s editorial is so powerful and eloquent that I really don’t have much to add.  What I can add, however, is a bit of context to the speech that has gotten Sotomayor into so much hot water.  In a speech during a symposium on Latino judges, hosted by La Raza Law Journal, Judge Sotomayor said that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”  Why would Sotomayor say such a thing?  It is clear from reading her speech that Sotomayor was asked to comment on how her experience as a Latina woman colors her perception of issues on the bench.  This subject is understandable given the Critical Race Theory roots of the La Raza publication that hosted Sotomayor’s speech.  At the risk of over-simplification, one theme of critical race theory is questioning the assumption that law is neutral and un-biased, and examining the ways in which our laws reinforce the existing power structures in our society, including the privileging of the concerns of white people, men, and the rich.

I have no idea what Sotomayor thinks about critical race theory, but it is clear from her speech that she is responding to this CRT critique of the law.  In her speech, Sotomayor describes her personal experiences as a “NewYorkrican” and acknowledges that these experiences have an effect on how she sees the world.  But in a much less quoted remark at the end of the speech, Sotomayor goes on to observe, “I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.”  That’s the most we can hope for from any judge, and Sotomayor’s judicial record reflects the fact that she has been pretty successful at it.

In his majority opinion striking down two local school districts’ attempts to use race as one factor in school assignments in order to reduce racial stratification in the public schools, Justice Roberts famously noted, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  I agree with Roberts’ sentiment, but I also agree with the Critical Race Theorist view that race discrimination is more complicated than Roberts’ remarks suggests – that we are all affected by unconscious bias.  Given the choice between Roberts’ overly simplistic remark and Sotomayor’s sophisticated evaluation, and the choice between their records on racial issues, I prefer Sotomayor.

Why Sotomayor Is a Good Choice

Written by Rebecca Zietlow on May 28th, 2009

There are three reasons why I think Sonia Sotomayor is a good choice to be the next Justice on the United States Supreme Court.  First, her nomination is historic.  If confirmed, Justice Sotomayor will be the first Latina, the first woman of color, and only the third woman to serve on the United States Supreme Court (not to mention the first Supreme Court Justice to grow up in a public housing project!).  Second, Sotomayor is an incredibly accomplished, brilliant woman who is highly qualified for the job.  Third, Judge Sotomayor has the right temperament and philosophy for the Supreme Court today.

It is difficult to overstate the historic significance of President Obama’s choice of a Latina woman as his first nomination to the Susotomayor.jpgpreme Court.   To illustrate my point, consider this:   When I was a student at Yale Law School in the late 1980s, the law students held a one day strike for diversity, calling for diversity in the faculty, student body and law school curriculum.  To protest the fact that at that time Yale had never had a woman of color on the faculty, a classmate of mine created paper effigies of all the faculty members and hung them from the ceiling of the law school.  Hanging from the ceiling was a long row of white men, several white women, and several men of color.  No women of color.  Now imagine if my classmate had done the same with the United States Supreme Court throughout our history.  Out of 115 paper effigies (based on my unofficial count), 111 of them would be white men, two would Black men, and two white women.  Again, no women of color.

The fact that Justice Sotomayor would be the first Latina and the first woman of color ever to serve on the United States Supreme Court, and a person who comes from a low income background, matters because the Supreme Court makes decisions that affect all of our lives, including the 52% of us who are women and the 26% of us who are non-white.  It matters because life experience, including our gender, race and economic backgrounds, affects how all of us view the world, and how judges view the law.  This does not mean that Justice Sotomayor would always rule in favor of women, people of color (regardless of their gender), and poor people, who appear before the Court.  Her record on the lower federal courts makes this abundantly clear.  What it does mean is that Justice Sotomayor would bring a life experience to the Court that would enrich the Court’s consideration of legal issues and make the Court more connected to the impact of its decisions on all of us.

Second, Justice Sotomayor’s qualifications are outstanding.  She graduated at the top of her class from Princeton, one of the nation’s top universities and an incredibly competetive institution.  She excelled as well at Yale Law School, where she served on the Law Review.  Sotomayor has extensive experience as a prosecutor and as a private attorney, and 17 years as a federal judge.  I am incredulous that anyone could argue that Sotomayor lacks the credentials to be a Supreme Court justice.  These critiques simply have no foundation.  Sotomayor’s record speaks for itself.

Finally, I believe that Sotomayor has the right temperament for the Court at this time.  This is where I differ from those liberals who have argued that they would prefer someone with a stronger ideological focus.   By all accounts, Sotomayor is a liberal to moderate person who enjoys engaging legal arguments and listens to all sides before making decisions.  However, she is no shrinking violet and is not likely to be intimidated by the more conservative, more senior members of the Court.  (After all, the woman grew up in a Bronx housing project!!!)

Sotomayor’s record is also so far from the “liberal activist” label that conservative critics are trying to link to her that the label simply won’t stick.  It’s about time that we recognized that (as I have argued in previous columns) the only activism that has occurred in  the United States Supreme Court in the past twenty or so years has been conservative retrenchment against progressive political policies.  If confirmed, Sotomayor will bring strong experience, diversity, and a balanced approach to the law that belies that conservative activism.   As a person with progressive politics who is sick and tired of the activism of the conservative Rehnquist and Roberts Courts, I say, bring Sotomayor on!

Mea Culpa!

Written by Robert Justin Lipkin on November 30th, 2007

While I think my arguments warning about the perils of ranking apply to a broad array of issues, I misidentified the context of the passage I quoted in my Thursday, November 29, 2007 post. The quoted passage was not about ranking the impact of legal scholarship by measuring citations. I apologize to the author and to my readership.

A Virtually Perfect Petitio Principi in the Controversy over the Use of Citations in Ranking the Impact of Legal Scholarship

Written by Robert Justin Lipkin on November 29th, 2007

UPDATE: Please see my post “Mea Culpa” written on Friday 30, 2007 above for a correction concerning the quoted passage in this post.

A paradigmatic–virtually perfect–example of how not to “reason” about social practices, including ranking the impact of legal scholars, is this.

The sorts of criticisms noted…can be taken in two ways–one reasonable and the other stupid. The reasonable way is as either noting things that might be improved on in the future or else as noting things that should lead smart consumers of the rankings to ask more questions or otherwise serve as caveats on using the rankings . . . The stupid way to mean them would be to believe that there could be a perfect ranking system, one that combines all desirable elements and has no undesirable ones. Finally the idea that a ranking of schools in general is bas seems silly.

What a circle! Unless one already accepts the premise, as the author and his supporters do, that ranking, even if imperfect, is useful when properly qualified of course, one’s approach to citations and rankings is stupid.[1] Yet, for some skeptics, no improvements will outweigh the deficits–some of which I have elaborated on here, here, and here. Yet the author simply assumes that rejecting ranking scholarly impact through a qualified citation measurement system is stupid. A wonderful closed circle of fallacious reasoning. Not one argument in this morass just circular assertions masquerading as arguments.

As with most controversies about social practices one can deal with a practice on its own terms, chipping away at or improving this or that point, or one can reject the entire enterprise on the grounds that is has too few, if any, benefits, and too many detriments, including, but not limited to, how we appreciate evaluation in general in a particular domain. There’s no pursuit of perfection here, and so reference to one is merely a distraction. Rather than one reasonable approach and one stupid one, these two approaches have been legitimate, if contested, approaches to intellectual controversies for centuries. Calling one approach “stupid” because one favors an alternative, borders on just plain bullying.

Ranking the impact of legal scholars cannot be perfect to be sure. But, for some, that’s not the complaint. One complaint, for me, is conflating two different kinds of discourses without sufficiently acknowledging one is doing so. Another complaint is that “[o]ur culture suffers from a ferocious ranking fetish. . . . citation study feeds the beast, when we should instead be starving it.[2] In other words, but not as well put, the contention is that legal scholars, especially fledgling ones, already perseverate about ranking to the detriment of directly evaluating the intrinsic value of scholarship, an archaic, futile practice perhaps for some. Indeed, law school’s “ferocious fetish” is much greater than other academic disciplines, although that of course, can change. If it does, it will be a change for the worse.

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[1] There’s an alternative way to interpret these remarks which castigates the critic, not the approach, for being stupid. But I’ll leave that alone for now.

[2] This is Brian Tamanaha’s marvelous line. See here.

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Credit for Second Image

More on Ranking Legal Scholars

Written by Robert Justin Lipkin on November 28th, 2007

Brian Tamanaha, at Balkinization, has an important response to Brian Leiter’s insistence that citations–with the appropriate qualifications, of course–measure the true impact of legal scholars. Some of the key points in Tamanaha’s post, as I understand it, are: (1) It is a non sequitur to insist that citations can be a “proxy” for impact even with elaborate qualifications, (2) The practice of citation, unique to law, requires an inordinate number of citations and “over time, stock or standard citations develop, which are cited again and again, with no guarantee or even indication that the authors cited are read or even if they are read that the cited piece had any significant impact on the field” and (3) An alternative would be to count only citations where the source was actually discussed. Although even here, I would add, discussing an article might not prompt anyone else to notice, or if someone does notice, to cite or extend the discussion. The true value–and therefore, probably (and hopefully) the true impact–of law review articles consists of the importance of the question posed, knowledge of previous answers, comprehensive analytical and critical examination of these answers, a proposed solution, and, of course, writing style. Seeking to ascertain an article’s value cannot possibly be achieved by counting its citations even with qualifications. One can, of course, qualify a thesis to death.

Generally, the inclination to rank involves two elements: a class of items we think should be compared and evaluated and criteria for doing so. This is a perfectly legitimate instinct. When we compare and evaluative two novels, we’re ranking them in a sense. But comparing and evaluating, though typically essentially contested, can be interesting and productive. Such a practice, in principle, can illuminate critical issues and help us discover important questions not obviously raised by our initial discussion of the novels.

The question is whether “ranking” does the trick with novels or with any other complex value-items, including the “impact” of legal scholars.[1] At its heart, ranking seeks an uncontroversial or virtually uncontroversial (empirical?) criteria when we don’t agree over the comparisons or evaluations conducted on an intuitive or normative level. We, therefore, seek an independent (“objective?”) standard that will, with appropriate qualifications, take the contention out of intuitive and normative disagreements about which items (in a class) have greater value of some kind or another. But any uncontroversial intersubjective criteria will be unable to explain why what we value has value. And any controversial intersubjective criteria will not achieve consensus and reliability if that is what we seek. Surely, consensus and reliability in ranking the impact of legal scholars are two of the salient elements we design ranking to achieve.

We’re mixing frameworks here. We should have learned as much from G.E. Moore’s “naturalistic fallacy” and David Hume’s dictum concerning the relationship be descriptive and normative (in Hume’s case, prescriptive discourse.[2] I’m endorsing neither Moore’s “naturalistic fallacy” nor Hume’s puzzlement over deriving and “ought” from an “is.” Evaluative judgments–prescriptions, normative claims, and so forth–might be derivable from some types of descriptions, but the character of such a notion of “derivability” will inevitably be complex and tentative. That brings me to Tamanaha’s terrific and pithy conclusion: “Our culture suffers from a ferocious ranking fetish. Leiter’s citation study feeds the beast, when we should instead be starving it.” Bravo! Bravo!

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[1] “Impact” or “true impact” is significantly ambiguous. They might refer to the prevalence of a legal scholars works in the literature upon which consensus can be achieved. By contrast, it might refer to the effect on the tenor, character, and direction of the field of scholarship in question. The first sense is generally uninteresting but verifiable. The second sense in fundamentally important but doesn’t stand a chance of achieving verification or consensus.

[2] I am not unaware of objections to and re-interpretations of Hume’s dictum that one can’t derive an ought from and is. But Hume’s succinct statement of the relationship between descriptive and prescriptive reasoning is worth pondering just the same.

In every system of morality, which I have hitherto met with, I have always remark’d, that the author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when all of a sudden I am surpriz’d to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, ’tis necessary that it shou’d be observ’d and explain’d; and at the same time that a reason should be given; for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it.

David Hume, A Treatise of Human Nature (1939-40).

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Credit for Second Image (G.E. Moore)

ECA Welcomes Good Friend Rod Smith

Written by Robert Justin Lipkin on November 6th, 2007

ECA is immensely delighted to introduce Rodney K. Smith to ECA’s readers. Rod’s first hand knowledge of the current crisis in Pakistan will undoubtedly assist American citizens and American legal scholars to acquire the appropriate perspective on the conflict between Pakistan’s president and its Supreme Court. Professor Smith presently serves as President at Southern Virginia University. He previously served as the Herff Chair in Excellence at the University of Memphis School of Law and as Dean of the schools of law at the University of Arkansas at Little Rock, the University of Montana, and Capital University. He also has been on the full-time law school faculty at the University of San Diego, Widener University and the University of North Dakota. President Smith received his B.A. from Western State College in Colorado, his J.D. from Brigham Young University, and his LL.M. and SJD degrees from the University of Pennsylvania. Rod has authored or co-authored four books and over twenty-five articles, primarily in the areas of constitutional law and sports law. President Smith is the consummate academic colleague bringing out the best–scholarship, teaching, and service–in everyone with whom he interacts. Whether a member of a law school faculty, a dean, or president of a university, president Smith strikes a blow for community and caring within and without the university setting. No matter how accomplished a particular scholar might be, none makes such a critical difference in the lives of so many as Rod Smith. Welcome to ECA, Rod.