Running Dry

From the N.Y. Times:

Bhanwar Lal Yadav, once a cultivator of cucumber and wheat, has all but given up growing food. No more suffering through drought and the scourge of antelope that would destroy what little would survive on his fields.

Today he has reinvented himself as a vendor of what counts here as the most precious of commodities: the water under his land.

Each year he bores ever deeper. His well now reaches 130 feet down. Four times a day he starts up his electric pumps. The water that gurgles up, he sells to the local government — 13,000 gallons a day. What is left, he sells to thirsty neighbors. He reaps handsomely, and he plans to continue for as long as it lasts.

“However long it runs, it runs,” he said. “We know we will all be ultimately doomed.”

Mr. Yadav’s words could well prove prophetic for his country. Efforts like his — multiplied by some 19 million wells nationwide — have helped India deplete its groundwater at an alarming pace over the last few decades.

The country is running through its groundwater so fast that scarcity could threaten whole regions like this one, drive people off the land and ultimately stunt the country’s ability to farm and feed its people.

With the population soaring past one billion and with a driving need to boost agricultural production, Indians are tapping their groundwater faster than nature can replenish it, so fast that they are hitting deposits formed at the time of the dinosaurs.

Suddenly, the concept of "sustainability" doesn't seem so vague after all.

Job seeker's lament

To those who are seeking law teaching jobs, I say this. I feel your pain. Here's an image that expresses how it surely feels.

Photo credit: Filipe Fortes's montage of photographs from the Hsin-Chu market in Taiwan. Among my recollections from my childhood in Taiwan is not the fish market, but the live bird market. Though the image at right comes from Malaysia, it is perfectly representative of what I remember. To think that these scenes hint of a coming global health crisis no one knows how to control.

The Phanerozoic fallacy

«   Part 7 of the series, Genesis for the rest of us   »

The Phanerozoic eon encompasses the 545 million years of geologic time since the emergence of diverse hard-shelled animals. The Phanerozoic takes its name from the Greek term meaning visible life and refers to the large size that organisms have attained since the Cambrian explosion.

The term Phanerozoic can also describe the assumption that environmental law begins and ends with protection of only those things visible to the naked human eye. Genesis' listing of plants and animals involved in the creation reinforces and arguably inspires this fallacy. In addition to "great sea monsters and every living creature that moves" in the seas Genesis mentions only flowering plants, birds, and cattle, "creeping things," and "beasts of the earth."

The failure to account for invisible life generates a massive register of shortcomings in environmental law and risk regulation. And because salient evidence dominates human assessments of risk and value, we remain what journalist Jay Ingram has called "slaves of the macroscopic" who "fail[]to appreciate the overwhelming domination of the microbial." This failure puts us in extreme peril, not only as a scientific matter, but also as a matter of simple survival.

The smallest life forms express the greatest variety, often through minute genetic differences. Consider Yersina pestis, the bacterium responsible for bubonic plague. (It's depicted above under 2000x magnification and fluorescent staining.) Y. pestis evolved from and is very closely related to Y. pseudotuberculosis, a bacterium that causes a much milder enteric illness. Y. pestis is transmitted to humans by fleas that have fed on infested rodents, while Y. pseudotuberculosis is transmitted through contaminated food and water.

The major difference between the two bacteria appears to be an extrachormosomal gene coding an enzyme in Y. pestis that enables this bacterium to thrive in the flea's midgut. Plague arises when a bite from an infected flea delivers a large number of Y. pestis bacteria into the bloodstream. See generally Mark Achtman et al., Microevolution and history of the plague bacillus, Yersinia bacillus (2004).

The point is not that Y. pestis deserves protection from human activities -- quite the opposite -- but that humans have great difficulty perceiving biological variation on a small scale, let alone articulating politically persuasive reasons for preserving it. Each human hosts 500 to 1000 microbial species, yet the precise interaction between humans and bacteria eludes complete understanding. See Michael S. Gilmore & Joseph J. Ferretti, The Thin Line Between Gut Commensal and Pathogen, 299 Science 1999 (2003).

Next in this series: Mother superior.

Law Students Address Disaster Issues

Residents of New Orleans and the Gulf Coast face a plethora of legal issues. (I was going to say "deluge" but that seemed in bad taste.) There have been a number of efforts to mobilize law students to assist with these issues, including the "Boalt in New Orleans" program here. One of the most intriguing efforts, however, is the Student Hurricane Network.:

The legal questions and problems facing the individuals and communities throughout the Gulf Coast region are monumental in scale, and will remain for months and years to come. In order to address this need, law students from across the country have formed the Student Hurricane Network (SHN), a national association dedicated to providing assistance to communities affected by Hurricanes Katrina and Rita.

SHN's first major project occurred in December 2005 and January 2006, when over 240 law students from over fifty-seven law schools across the country converged on the Mississippi Gulf Coast and five cities across Louisiana, working with over eighteen public interest organizations to conduct massive intake, interviews, research, and physical cleanup. Students assisted with projects involving criminal justice, housing, immigrant labor, FEMA claims, and more.

From February through April, SHN organized spring break trips for nearly 700 students from over 60 law schools! These students continued the work of the winter break trips, and also helped establish projects focusing on voters' rights, access to counsel, and the rebuilding of a safe, strong New Orleans. Students worked in Louisiana and Mississippi, but also with evacuees in Florida, Texas, and Georgia.

It's great to see students taking this kind of initiative on a national scale.

Reprise is a dish best served fresh

Herewith a spell for the magically uninitiated:

Bone of the archives, unknowingly given.

Flesh of the network, willingly given.

Blood of the Internet, forcibly taken.

Damn it all; it didn't work. Necromancy has its limits, and I still lack a body.

But not all is lost. My work is the resurrection and the life. Though a corporeal presence eludes me still, my SSRN page is now complete:

1. Lex and the City, 91 Geo. L.J. 913 (2003)


2. True Blue, 20 Const. Comment. 5 (2003)


3. The Phages of American Law, 36 U.C. Davis L. Rev. 455 (2003)


4. The Headnote, 5 Green Bag 2d 157 (2002)


5. Constitutional Law Haiku, 18 Const. Comment. 481 (2001)


6. The Death of Contra, 52 Stan. L. Rev. 889 (2000)


7. Mark My Words, 3 Green Bag 2d 121 (2000)

Download and enjoy.

The hypothesis factory

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J.B. Ruhl's latest post on the value of empirical studies plants a seed of inspiration in my mind. Resolved: The theory of comparative advantage should inform how legal academics divide their time between doctrinal, theoretical, and empirical methodologies.

Comparative advantage is one of those ideas so utterly correct and productive that politicians have never stopped fighting against it. David Ricardo was right: do what is cheapest for you (at least relative to other competitors) and let markets value your output. That way lies the wealth of nations, and governments that disavow Ricardo's advice put their citizens on the road to serfdom.

So how does all this apply to law? Consider the final paragraph in J.B.'s post:

law ought to value more than it traditionally has is greater emphasis on developing testable legal theories as well as actually doing the testing. While we may never get to the point of regularly producing and working with "mathematically rigorous proofs and large-scale statistical evidence," would it hurt us so much to move farther away from relying as much as we do on "rhetoric and anecdotes"?

No, it won't hurt. Not even a little bit. I agree wholeheartedly with J.B. that most legal academics are simply not capable of "regularly producing and working with 'mathematically rigorous proofs and large-scale statistical evidence.'" But we do enjoy a comparative advantage in generating hypotheses. The historic proliferation of abstract theories in legal scholarship suggests as much. In an age with deeper data sets and sharper statistical tools for sifting that data, redirecting our powers of conjecture toward testable, falsifiable hypotheses represents one way we legal academics can better engage our scientific colleagues in the exchange of ideas.

More on Empirical Studies

My post of last week on legal scholarship produced comments on a wide range of topics, and I am still collecting my thoughts on how to further the conversation. For now, I found this book review from last week's issue of Science quite interesting in its comments on the value of empirical studies, the topic which attracted the most attention among comments to my post. This is from a book review by Roman Wacziarg of the Stanford Graduate School of Business reviewing Economic Origins of Dictatorship and Democracy by Daron Acemoglu of MIT and James A. Robinson of Harvard. The book explores "age-old questions in political economy: What factors, particularly economic factors, explain why some countries pass from dictatorship to democracy? What determines whether such transitions will be consolidated or whether a country will revert to rule by a small elite?"

According to Wacziarg (italics mine for emphasis):

The book's substantive contribution is to bring ... intellectual traditions together under a consistent theoretical framework, delivering rich empirical predictions on the factors leading to democratization and institutional stability. These factors are the economic, social, and institutional determinants of the costs and benefits of repressing versus conceding, such as the size of the middle class, the structure of production, economic inequality, the prevalence of economic shocks and crises, and the degree of globalization. Each is found to have sometimes complex, but always empirically testable, relationships with the political regime.

***

Yet providing testable theories is not the book's only contribution to scientific knowledge. Another, perhaps more important, contribution is the manner in which its central questions are approached. Economic Origins of Dictatorship and Democracy contributes to social science by addressing issues traditionally studied by political scientists with the rigorous tools of economic analysis. Acemoglu and Robinson use formal game theoretic models, proceeding from assumptions to empirically falsifiable predictions, in keeping with the Popperian tradition. Such an approach is relatively new to political science, in spite of that discipline's name. This is particularly true for the subdiscipline of comparative politics, which still largely relies on rhetoric and anecdotes--rather than mathematically rigorous proofs and large-sample statistical evidence--to explain social phenomena. The authors' work is an admirable illustration of a growing trend toward formal reasoning and the derivation of empirically testable propositions from internally consistent, stylized models. This is a trend that revolutionized economics starting in the middle of the last century. It is now sweeping political science, and the experience of economics suggests it is the way of the future. As it takes hold, the social sciences are bound toward greater and greater consilience.

One feature of scholarship my post suggested that law ought to value more than it traditionally has is greater emphasis on developing testable legal theories as well as actually doing the testing. While we may never get to the point of regularly producing and working with "mathematically rigorous proofs and large-scale statistical evidence," would it hurt us so much to move farther away from relying as much as we do on "rhetoric and anecdotes"?

Go marching in

Welcome home, Saints.

Do Sports Have Social Value?

In accordance with this blog's recent sports-theme, here's a photo of the latest from New Orleans: the reopening of the Superdome for tonight's game. It hasn't been cheap:

The $185 million job included a new roof, thousands of new seats, new video and sound systems and new concession stands. It was all preceded by an enormous cleaning and gutting job after as many as 30,000 storm victims who took shelter there had been taken out of the city.

I haven't yet been able to track down how much of this is public money, except that there's at least $45 million from restructuring some existing state bonds. But sports arenas are heavily subsidized, and there's little reason to think this is any exception.

Are these expenditures of public funds justified:

(1) Because of economic externalities such as increased tourism?
(2) Because of intrinsic value of the game (like saving the redwoods or the Mona Lisa)?
(3) Because of the social cohension provided to the city? Is the value of this increased in a post-disaster situation?
(4) None of the above?

Infrastructure Redundancy, Emergence and Coping with Disasters

Congress has recently turned its attention to net neutrality. When we speak of "net neutrality" we are generally referring to the notion of embedding preferences into the internet "pipes" to provide certain content more quickly to end users than other content. However, rarely do we question whether choosing to use only "pipes" or fiberoptic cables generates physically interconnected structures that lock in suboptimal outcomes in connectivity.

Like net neutrality, infrastructure policy regarding absence or presence of infrastructure redundancy carries with it concerns regarding market influence and information access. Our current "pipes-only" infrastructure is not the only option for structuring communication networks; by choosing not to explore alternative infrastructures, we make an inferior policy decision. Local ad-hoc networks provide more cost effective alternatives in many situations where communication is across short geographic distances. For example, two people sitting in the same room currently may need to send traffic out of the room to get packets of information across the room. With a local ad-hoc network alternative, the packets can hop directly to the neighboring machine. But, perhaps most importantly, by choosing not to experiment with alternative infrastructures, we are choosing to rely solely on our current "pipes-only" system that we know is likely to fail during disasters.

In the aftermath of Katrina, many network providers lost electrical power, communication towers or other infrastructure pieces, and internet and phone access was virtually impossible for many trapped residents of New Orleans as the water levels rose. People lost lives due to the inability to communicate. Restoring these nonfunctioning "pipes-only" networks, including simply restoring phone service, presents a time consuming and costly undertaking. Although geographically broader communication disruption did not come to pass, depending on the particular routes of fiberoptic cables, it easily could have: connectivity of other (ostensibly unimpacted) parts of the country can be meaningfully disrupted by disasters such as Katrina. This risk can and should be mitigated through infrastructure redundancy using peer-to-peer infrastructures.

During this year's DefCon, Caezar, a well-known security researcher, gave an interesting talk presenting the technological arguments for MANET networks as a viable alternative to the current "pipes-only" internet infrastructure. MANET networks (Mobile Ad-hoc Networks) are peer-to-peer networks that provide the respective peers with a method of communication and/or internet connectivity, without our current levels of reliance on "pipes." MANET networks are self-configuring networks of mobile routers and hosts connected wirelessly to form an emergent configuration or topology. The routers can move and rapidly self-organize as needed. Consequently, a MANET network may operate in either a freestanding manner or it may be connected to the internet.

It is under circumstances of crisis that peer-to-peer infrastructures such as that of MANET networks shine where a "pipes-only" approach falters -- a peer-to-peer infrastructure model can remain relatively unimpacted during disasters because the network is emergent. The nodes that connect users to each other to provide a method to communicate and obtain internet access are mobile. Each message searches out a functioning node to convey its packets until it finds one - and that connecting node may vary from message to message. The ability of a message to search for and route itself through any functioning node can mean the difference between life and death for a message's sender in natural disasters. By contrast, in a traditional "pipe" based network, if the user's one internet connection or phone network is down, connectivity self-regeneration and reorganization is not possible. The user must survive until humans fix it. As anyone who has ever had a cable or DSL problem can attest, waiting for humans to fix such problems can be a slow, painful process. In times of crisis, however, every minute matters.

Infrastructure redundancy presents a critical policy issue that warrants our attention. Our future communications regime needs to function not only in belle weather times, but also in adverse conditions of natural (or unnatural) disaster.

Blindsided

Woof. Chomp. Yum. Grilled Gamecock has replaced Irish mincemeat as my favorite meal on autumn Saturdays

Book sales in the United States approached $24 billion in 2004. A significant slice of that action went to business books. Less formally, these titles are (1) shamelessly intended to help the rich get richer and (2) the only self-help books men will voluntarily read.

For my money, the entire business bookshelf can be reduced to the work of a single author. When it comes to the evaluation of talent, in business or in academia, there may be no more astute author than Michael Lewis. The author of Moneyball: The Art of Winning an Unfair Game -- yes, the book that inspired the MoneyLaw blog and Paul Caron and Rafael Gely's classic law review article -- has turned his attention to "the way people are valued -- on the football field and off."

As an initial matter, it's worth exploring a modest question aimed at the cultural peculiarities of legal academics and other members of the information-society elite. Why hasn't football -- especially the overtly professional variant of the game -- displaced baseball as the official sport of American intelligentsia? Make no mistake; I love baseball. But baseball doesn't come close to matching the strategic complexity, athletic beauty, and raw emotion of twenty-two men moving at once, desperately counting to eleven and trying to balance the power of the ground game against the acrobatics of the forward pass. Football is the truly democratic sport. The fat and the skinny can compete on roughly equal footing; everyone in the village has a position to play. Eleven o'clock Sunday morning is the most segregated hour in America, but thank God almighty, Americans of all races come together under Friday Night Lights.

Last football season, Michael Lewis profiled Mike Leach of Texas Tech, one of the game's genuine innovators. For his contributions to football -- nothing short of reimagining the geometry of the game and extracting the absolute maximum out of players with admittedly marginal talent -- Mike Leach has earned little more than the spite of his peers. Football populists of the world, unite behind Tech. It's not as if the Big 12 is filled with programs to admire, and the Red Raiders under Leach play some of the most inspired, entertaining football anywhere.

In his most recent foray into football, Lewis recounts the remarkable story of Michael Oher. From an utterly despondent childhood in Memphis, Oher now stands on the brink of NFL stardom. "Big Mike" has had plenty of help to put him on the line of scrimmage for Ole Miss, but it all hinges on his unique combination of size, strength, and terrifying quickness.

Mike Oher is the centerpiece of Lewis's newest book, The Blind Side: Evolution of a Game. Lewis's studies of these two Mikes -- Leach and Oher -- shed clarifying light on the evaluation and exploitation of talent in America's most popular and most intellectually stimulating sport. Whether the self-appointed guardians of this country's academic culture take notice remains to be seen. This much is already clear: the market for knowledge about entrepreneurial advantantage, in football and in business, will pay attention no matter what academia elects to do.

Hat tip to Eric Goldman for bringing Michael Lewis's article on Michael Oher to my attention.

Introducing the Maz, a medal of merit

Bill Mazeroski is responsible for one of baseball's most storied moments, the walk-off home run that ended the 1960 World Series. He is also the namesake of MoneyLaw's new medal of merit commemorating unsung heroes in legal academia. This is merely one of many developments elsewhere in the Jurisdynamics Network of potential interest to Jurisdynamics readers.

Scholarly hierarchies: further thoughts

This post started as a comment on the latest elaboration of J.B. Ruhl's hierarchy of legal scholarship, but one advantage of managing a blog is posting on the front page. I therefore offer some further thoughts on the project of evaluating legal scholarship.

How many law professors could hack law firm life? Maybe it's best not to ask such an embarrassing question.

I wonder whether J.B. seriously wants to "us[e] the average associate at a top law firm as [his] baseline." J.B. asks, "what can law professors supply the world that top-100 law firm associates usually could not?" Reversing the question might generate some really embarrassing answers. The academy as a whole might not want to contemplate the number of law professors, including professors with tenure at very highly regarded law schools, who could not be entrusted to perform tasks asked of associates at top-tier law firms.

I accept J.B.'s assertion that his hierarchy does not hinge on the amount of effort involved in the production of each category of scholarship. J.B. does seem to assume, though, that within a class of writers (associates, professors, etc.), empirical research is harder than theory and theory is harder than doctrine. From this perspective, J.B.'s hierarchy does depend in part on cost. I don't think that a cost-based orientation is inherently mistaken. In any event, J.B. forswears reliance on cost, and I agree that looking for value, whether defined as value added or value in the aggregate, is the proper pursuit.

Ally 1, Academia 0

Finally, I'd like to offer a brief rejoinder to Larry Solum's critique of my response to J.B. I freely confess that I was ambiguous in identifying overall societal impact rather than its intended audience as the criterion by which scholarship should be evaluated. I tip my hat to Larry for helping me sharpen my definition. Neither form nor purpose displaces societal impact as the proper gauge of scholarly merit.

Let me sum up. It is possible, at a minimum, to evaluate legal scholarship according to (1) the practical difficulty or intellectual beauty of its methodology, (2) its intended audience, (3) the value added by the scholar relative to the work of a nonscholarly legal professional, or (4) its overall value, either to a specialized field or to society at large. In other words, scholarship can be assessed, like law itself, according to its form, its intended purpose, or its actual effect. Because it's hard to assess actual effects, lawyers and judges often use form and purpose as shortcuts. Unsurprisingly, legal academics do the same when evaluating their own work. But all parties, I suspect, would do well to pursue direct measures of the only criterion that counts: real-world impact.

Some Elaborations on J.B. Ruhl's Hierarchy of Legal Scholarship (by J.B. Ruhl)

A few days ago I posted a Hierarchy of Legal Scholarship and, unlike my usual practice, I forgot to place my byline at the beginning of the post, which appears to have led some readers to conclude Jim Chen posted it. I'm glad Jim has clarified that, and I hope the way I've titled this post avoids and further confusion. I have a few thoughts based on comments to my original post and on Jim's alternative.

First of all, the underlying rationale for the hierarchy is not cost of effort; rather it is the value added, using the average associate at a top law firm as the baseline. In other words, what can law professors supply the world that top-100 law firm associates usually could not. Indeed, a law professor might be very good and very efficient at churning out high quality legal theory or empirical work, so the cost is low to him or her. My interest is in the value added. Doctrinal work is low on my list because any good associate can, and largely does, produce that all day long. Although I did not explain this rationale in a separate sidebar, it is the theme that I use and mention throughout the list.

Maybe a thought exercise will help:

• First, gather 100 randomly selected law professors to select the top 10 examples of legal scholarship in each of my 10 categories (clearly, this is a thought exercise).
• Next, capture each of my categories in a short assignment, such as from "compile the law of X" to "develop a theory of the law of X and conduct empirical studies to test it in ways relevant to all disciplines interested in X."
• Assign the assignments to 1000 randomly selected 4th year associates from the American Lawyer top 100 firms.
• When their work product is returned, have the panel of law professors evaluate on average how it compares in each category to the "top 10" selected in step 1.

My hunch is that if we did this, the associates on average would come closer to the top 10 in category 1 than in category 2, and so on up the ladder.

This is why I put empirical work high on the list. Yes, empirical work is also costly, but it is the type of work that a good scholar, because of the nature of the job and the demands of that kind of work, will be in a better position to provide. One of the comments to my original post suggested that by "empirical work" I mean just compiling numbers. I should clarify that what I mean is (as suggested by another comment) empirical work that tests data against theory, the way real social scientists do it. The reason I put it higher on the list than theory work, therefore, is because it puts the theory to the test. High quality empirical work of this sort is costly, but it is valuable because it illuminates flaws and strengths of the theory work.

To be sure, I recognize that scholarship fitting any particular category will fall on a range of quality, and we might use the categories Jim suggested to differentiate. Excellent doctrinal work is more valuable than half-baked legal theory. I think of my list as defining a typology of legal scholarship based on what law professors can add in terms of value to legal development and understanding. It is, in that sense, only a starting point for evaluation of any particular piece of work. There have already been, in addition to Jim's suggestions for different sets of criteria, and I am not holding mine out as the only one that has some usefulness by any means.

Lastly, talk of a hierarchy of scholarship is more difficult in law than it is in other disciplines, I suspect, because law enjoys the luxury of publication without peer review. But even in law, many members of hiring committees and promotion committees surely do apply some sense of what makes some kinds of scholarship more valuable than others as a general proposition. Whether they use mine, Jim's, or another, they are using one. So I think it is healthy to have a conversation about how we do it.

A value-based hierarchy of legal scholarship

J.B. Ruhl's hierarchy of legal scholarship is the most popular post in the history of Jurisdynamics and its associated network of weblogs. Even if a large number of bloggers and commenters had not mistakenly attributed J.B.'s post to me, I would feel the need to weigh in. And so I do.

Larry Solum's critique of J.B.'s hierarchy scores two crucial points. First, the very "idea of such a list, while amusing, assumes that there is a meaningful hierarchy." Second, J.B.'s "categories are conceptually odd." I attribute both of these implied faults to one flawed assumption underlying J.B.'s project: the belief that value of scholarship arises from the cost associated with this creation.

Although some of J.B.'s categories are distinguished by quality (such as the distinction between ordinary doctrinal scholarship and doctrinal scholarship on "interesting" questions), the overall arc of his progression from blog posts to empirical scholarship appears to rest on J.B.'s evaluation of the difficulty of different types of scholarship:

0, 1	Blog posts
2, 3, 4	Doctrinal scholarship
5, 6	Normative policy analysis
7	Legal theory
8	Interdisciplinary studies
9, 10	Empirical scholarship

Barbie's right: Empirical scholarship is hard!

Aside from its curious omission of legal history (probably a subspecies of interdisciplinary work), J.B.'s hierarchy has won a big following in very little time. By its own terms, J.B.'s hierarchy succeeds because, for the most part, (erudite) legal theory is harder than doctrinal scholarship, and (thorough) empirical scholarship is probably harder than any other form of work ordinarily undertaken by law professors. The problem, of course, is that the difficulty of a scholarly form or methodology has no necessary bearing on its quality. Stated more formally, my objection is this:

Value  ≠  Cost

A considerable amount of misery in law and in economics flows from the evidently natural tendency to equate value with cost. In the language of the law of regulated industries, for instance, J.B. has implicitly embraced cost-of-service ratemaking principles, even though real markets and astutely designed approaches to deregulation favor value-of-service ratemaking. (For diehards who want the technical details, I offer an overview in this paper and a more comprehensive critique in this paper, which explains how Greg Sidak and Christopher Yoo, notwithstanding their great intelligence, are irredeemably wrong about pricing rules.) It's intuitively appealing, but ultimately -- and sometimes gravely -- wrong to equate value with cost.

Consider the classic case, Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591 (1944) (discussed at greater length in this forum's lamentation on "Disaster's dead hand"). Hope upheld a ratemaking order based on the historic cost of natural gas extraction operations. Good constitutional law, terrible economics. What Justice Jackson said in his Hope dissent applies not just to natural gas production, but to the entire world of economic enterprise: the "service one renders to society ... is measured by what" the producer "gets out of the ground, not by what he [or she] puts into it." 320 U.S. at 649 (Jackson, J., dissenting). In other words, "there is little more relation between the investment and the results than in a game of poker." Id.; cf. Steven Lubet, Lawyers' Poker: 52 Lessons Lawyers Can Learn from Card Players (2006).

A proper hierarchy of legal scholarship, therefore, demands attention not merely to its cost (as measured by the effort invested in it) but also to its value. What Hope Natural Gas said of ratemaking makes sense here: "It is not theory but the impact of [scholarship] which counts." 320 U.S. at 605.

How then should we measure scholarly impact or value? Over at MoneyLaw, another team of bloggers to which I belong has plumbed the virtues and vices of empirical measures such as citations and SSRN downloads. With respect to the grandest questions of scholarly merit, I suspect that those measures, even if perfected, would fail to capture the overall sense of value at stake. For the time being, then, I propose an alternate hierarchy based loosely on the value ascribed to legal scholarship by its potential audiences:

1. Self-referential scholarship

Scholarship that does nothing more than express the author's interests cannot be meaningfully distinguished from overt appeals that can be reduced to two words: "Hire me." Why go through the trouble? It's much easier, not to mention more honest, to forgo the pretense of writing scholarship in favor of posting a curriculum vitae.

2. Scholarship solely of interest to other law professors

If scholarship has a potential audience circumscribed by the AALS directory of law professors, it will probably be read by exactly two dozen people -- the author's cronies, plus twelve law students snookered into checking its cites. It may be hard to find another collection of 24 people who are smarter, but the social value of this scholarship is at best constrained.

3. Scholarship solely of interest to law review editors

By "law review editors," I mean the tuition-paying variety. The difference between this category and category #2 is that the ability to appeal to 26-year-old law students ensures greater exposure for one's work. Taking a page from biology's r-strategy, one may reasonably presume that greater dissemination yields, on average and over the long run, greater memetic success.

4. Scholarship addressing lawyers, judges, and legislators

Call it "doctrinal" scholarship if you want to -- and I know that most of us who teach law for a living do so with undisguised contempt. But legal decisionmakers, from judges to regulators to legislators, enjoy certain powers that law professors lack: the power to convert and condemn property, the power to make other people do things, the power to incarcerate people deemed unworthy of liberty, and so forth. Legal power may rightly breed contempt, but it also demands some measure of respect. Even more so in academic departments devoted to the study of legal power.

5. Scholarship addressing fellow scientists

I suspect that the desire to connect with fellow scientists is what motivates J.B. to give so much weight to empirical scholarship. Again, I stress that it is "not theory but .. impact" that matters. Whatever our methodology, we legal scholars approach our very best when we engage our fellow scientists on terms that are meaningful to them and helpful to all participants in scientific dialogue.

6. Scholarship that solves a significant social problem

The ultimate test of scholarship, in any discipline, is whether it improves the human condition. We should all aspire to test the value of our work by this touchstone.

One final note: Mathematically inclined readers will notice that J.B.'s hierarchy, as I reduced it above, and my hiearchy can both be measured on a six-point scale. It is therefore possible to combine J.B.'s cost-based hierarchy and my value-based hierarchy into a game played with dice. May all of us hope that our scholarship comes up boxcars every time.

Спутник +49

The report comes a year too early for the 50th anniversary of the launch of Sputnik, but the sense of societal urgency should be commensurate to that moment of crisis in American history. The National Academies urge the comprehensive reform of American academia to overcome existing barriers to female advancement in science and engineering:

Women face barriers to hiring and promotion in research universities in many fields of science and engineering -- a situation that deprives the United States of an important source of talent as the country faces increasingly stiff global competition in higher education, science and technology, and the marketplace, says a new report from the National Academies. Eliminating gender bias in universities requires immediate, overarching reform and decisive action by university administrators, professional societies, government agencies, and Congress.

Read the full report, Beyond Bias and Barriers: Fulfilling the Potential of Women in Academic Science and Engineering. A related National Academies report, To Recruit and Advance: Women Students and Faculty in Science and Engineering, is likewise essential reading.

The Hierarchy of Legal Scholarship

Although this topic has little to do with my usual musings on complex adaptive systems, serving on our hiring committee has prompted me to consider how to differentiate between different genres of legal scholarship. I rank what I describe as the major categories of legal scholarship from a low of (1) to a high of (10) as follows:

0 – Blog posts: I mention blog posts only to provide a baseline of what is not legal scholarship. That there is any debate over the status of blogging is ridiculous. Anyone can write a “world according to me” blog comment, hit “post,” and have published his or her “insights.” It’s not scholarship, which is why I enjoy doing it so much.

1 – Publication of what are essentially blog posts with footnotes: Before blogs, many legal scholars simply published as articles what later would be posted on blogs. Many still do. Knowing that anything will be picked up by some print or online law journal, it is incredibly easy to write what amounts to a “world according to me” blog post, add footnotes from their home on a laptop, and have it published.

2 – Doctrinal review of the state of the law: We’ve all heard the criticism that so-and-so’s work is doctrinal. But let’s face it, almost any practicing lawyer at a top law firm could (and has) produced thorough written reviews of the doctrinal state of law in a particular context. Legal academics may be in a better position to produce such work on a more regular basis, but otherwise they provide little added value by doing so.

3 – Doctrinal study of interesting questions of law: It improves matters only marginally to conduct doctrinal work when the topic under study presents novel or interesting questions of law. Once again, practitioners are more likely know what those questions are and to have reviewed the pertinent legal authorities. It will sometimes be the case, however, that legal academics “see” an important issue before the practitioners do.

4 – Doctrinal synthesis of developments in law: Doctrinal analysis is most valuable when it “pulls together” themes of development in the law and assesses their trajectory. Practitioners are less likely to have the time or incentives to take this ‘big picture” view of doctrine, meaning that academics can provide some meaningful value added.

5 – Normative policy analysis of law: What’s lacking in the work described on (0) - (4) is anything that takes on the normative position of the law beyond the author’s opinions. Much of legal scholarship goes at least as far as to stake out a normative position, but goes no further than positing an assessment of the success or failure of the law relative to the normative position and suggesting that something be done about it. This is thought-provoking scholarship, but not that hard for an academic, whose job it is to take the time to think about such matters, to produce. Indeed, one need not be the least skilled at the kind of scholarship described in 2 through 4 to do this kind of work.

6 – Normative policy analysis of law with substantial reform proposals: The ability to pull off normative policy analysis and provide concrete, specific reform proposals is the hallmark of high-quality traditional legal scholarship. One must be able to produce all types of work from (1) through (5) to do this. As it is unlikely that practitioners ever would have the time to ponder such work, much less to write it, legal academics have long provided this value to development of legal thought.

7 – Legal theory: In many ways legal theory work, which many legal academics hold out as the pinnacle of legal scholarship, is just a souped up version of category (1). One can produce high quality legal theory scholarship without ever leaving one’s office. It helps to be really smart, clever, and insightful, and to pack a lot into footnotes including, not least of all, cites to other legal theory scholars with whom one is friends. But seriously, good legal theory scholarship can make a difference in how all legal professionals view the law in particular and the world in general. Most scholars capable of producing insightful legal theory scholarship could produce high quality work in any category (0) through (6), but the reverse is not true.

8 – “Law and” interdisciplinary studies: Many legal academics may be surprised that I put this category ahead of legal theory. But top quality “law and” scholarship requires the ability not only to engage legal theory, but also to translate (more accurately, to parasitize) other relevant disciplines into legal contexts in order to engage legal theory in broader normative applications.

9 – Empirical study of legal institutions: Let’s face it—law has gotten away with it for too long. Our colleagues in most other disciplines would never get tenure producing the equivalents of categories (1) – (8), yet at some law schools tenure is handed out for work product histories never reaching beyond category (1), and at many law schools category (2) is sufficient. If one can churn out the kind of work described in categories (5) – (8), tenure is a shoe-in. But shouldn’t the legal academy value at the highest end of the spectrum work that provides rigorous empirical insight into studies that would otherwise fit the categories I rank lower on the scale?

10 – Empirical study of law’s impact on society: If one agrees with my category (9) comments, then it strikes me as appropriate to distinguish between work that performs empirical studies of legal institutions within their legal contexts and work studying the effect of legal institutions on society. The latter is most likely to be recognized by scholars in other disciplines, and thus to have an impact outside of law school walls.

The law made flesh

In principio erat verbum et verbum erat apud Deum et Deus erat verbum.

In the beginning was the word, and the word was with the Law, and the word was Law.

The word was in the beginning with the Law.

All things were made through Law, and without Law was not anything made that was made.

In Law is life, and life is the light of humanity.

The light shines in the darkness, and the darkness has not overcome it.

I come for testimony, to bear witness to the light, that all might believe through Law.

I am not the light, but come to bear witness to the light.

The true light that enlightens Law is coming into the world.

Law is in the world, and the world was made through Law, yet the world knows Law not.

Law comes to its own home, and its own people receive it not.

But to all who receive Law, who believe in its name, they receive power to become children of Law; they are born, not of blood nor of the will of the flesh nor of the will of humanity, but of Law.

And the Law shall become flesh and dwell among us, full of grace and truth.

Three strikes

«   Part 6 of the series, Genesis for the rest of us   »

Chapter 1 of Genesis looms large in American law. The creationist streak in American politics stems from the first of the Hebrew Bible's three creation myths. But there is more. Not one, not two, but three fallacies can be traced to the misinterpretation and misapplication of Genesis 1:1-2:3.

The first fallacy is the most famous. The creationist fallacy stems from the very first verse of the Hebrew Bible, "In the beginning God created the heavens and the earth," and the subsequent story of divinely guided creation over six days. Strike one.

Second, the dominion fallacy stems from Genesis 1:28: "God said to them, "Be fruitful and multiply, and fill the earth and subdue it; and have dominion over the fish of the sea and over the birds of the air and over every living thing that moves upon the earth." As I explained in The theological roots of our ecological crisis, this is the verse most often blamed for having set into motion the exploitative attitude of Western civilization toward nature. Strike two.

As I argued at length in Webs of Life, the final fallacy traceable to Genesis 1 may be the most devastating. Consider the following verses:

11: And God said, "Let the earth put forth vegetation, plants yielding seed, and fruit trees bearing fruit in which is their seed, each according to its kind, upon the earth." And it was so.
12: The earth brought forth vegetation, plants yielding seed according to their own kinds, and trees bearing fruit in which is their seed, each according to its kind. And God saw that it was good.
13: And there was evening and there was morning, a third day. ...
20: And God said, "Let the waters bring forth swarms of living creatures, and let birds fly above the earth across the firmament of the heavens."
21: So God created the great sea monsters and every living creature that moves, with which the waters swarm, according to their kinds, and every winged bird according to its kind. And God saw that it was good.
22: And God blessed them, saying, "Be fruitful and multiply and fill the waters in the seas, and let birds multiply on the earth."
23: And there was evening and there was morning, a fifth day.
24: And God said, "Let the earth bring forth living creatures according to their kinds: cattle and creeping things and beasts of the earth according to their kinds." And it was so.
25: And God made the beasts of the earth according to their kinds and the cattle according to their kinds, and everything that creeps upon the ground according to its kind. And God saw that it was good.

Thus arises the Phanerozoic fallacy, the assumption that environmental law begins and ends with protection of only those things visible to the naked human eye. Strike three.

This series now turns to an in-depth analysis of the Phanerozoic fallacy.

Editor's note: Biblical quotations, as most often made throughout this series, come from the Revised Standard Version. The stained-glass window depicted above is part of Chester Cathedral, England.

Is Frist Making Legislative History??

This from the Washington Post:

Senate Majority Leader Bill Frist signaled yesterday that he and other White House allies will filibuster a bill dealing with the interrogation and prosecution of detainees if they cannot persuade a rival group of Republicans to rewrite key provisions opposed by President Bush.

I can't remember another time when the Senate majority leader has threatened a filibuster. Admittedly, I'm not an expert on congressional history. Does anyone know of an earlier precedent for this? Is this event what it appears to be, an indication that the party leadership has completely lost control?

Addendum

My colleague Anne Joseph, who is a student of congressional affairs, raises an interesting question::

if here, why not stem cells? Similar political dynamics, but Frist, if I recall correctly, did not threaten a filibuster. A quick search reveals one report that Frist did, at least, "consider" a filibuster on the recent stem cell legislation. (here)

Another thought (this time from me rather than Anne): Frist's threat could be related to his presidential ambitions rather than any immediate need to kill the McCain bill. But to the extent that this event is unusual, presidential ambition can't be the full explanation. First, Frist isn't the first Senate majority leader to have had such ambitions. Second, the majority leader should be able to prevent a vote on legislation with something less clumsy than a fillibuster threat. Does Frist lack enough party support to use these other tools (a very bad sign for his leadership if true)? Or does the fillibuster threat make a better statement to the conservative base he hopes to cultivate for the nomination?

Neurotheology?

In an interview with Steve Paulson at Salon.com, self-described "neurotheologist" Andrew Newberg discusses what happens in the brain during prayer, meditation and mystical visions. Understanding the brain, Newberg argues, does not answer all questions on the nature of religious experience. Newberg's new book is Why We Believe What We Believe.

Hat tip: Kevin Wells of First Movers.

Complexity in Administrative Law

Readings in Complexity
By J.B. Ruhl

Back from a blogging hiatus, I'm resuming the series on complexity theory in legal scholarship by reviewing Donald Hornstein's recent work in the Duke Law Journal on Complexity Theory, Adaptation, and Administrative Law.

Hornstein's objective is to test the ability of complexity theory to contribute to explanations of change in administrative law. Noting that many other theoretical frameworks have attempted to do so--interest group pluralism, civic republicanism, public choice economics, substantive welfarism, and so on--he asks whether it is worth exploring yet another in the form of complexity theory. To my delight, he concludes it is.

His reason for focusing on complexity theory relates to the specific problem of administrative law theory that motivates this work: the importance and mechanisms of adaptation within systems that change over time, such as the regulatory system. Thus he opens by suggesting the "possibility that complexity theory may be capable of illuminating features of the legal landscape [of administrative law] more completely than other explanatory tools." In particular, he focuses on the properties of emergence, nonlinearity, and sensitivity to initial conditions as features that may make complexity theory more useful than the other theories in explaining change and adaptation in administrative law systems.

Using those premises and tools, he focuses on three normative claims of administrative law that depend on notions of adaptation: that states offer advantages over the federal government in policy formation because they are more experimentalist; that federal agencies should become more experimentalist by employing adaptive management; and that agencies should use "collaborative" methods of enlisting stakeholders in agency processes.

Hornstein matches up the three features of complexity theory with the three normative claims in what amounts to a remarkably insightful exploration of administrative law. He first grounds each of the features of complexity theory in administrative law theory and examples, then works through the three normative claims using complexity theory along the way. The result is both a general overview of complexity theory in the administrative law context, and a refreshingly insightful analysis of three issues that are at the cutting edge of administrative policy. In both senses Hornstein expertly engages the legal scholarship on administrative law. The article could not disappoint anyone with either interest--administrative law or law and complex systems--and is a pleasure to read for anyone, such as I, who has an interest in both. No doubt I feel that way in some part due to his conclusions "that law generally, and regulatory environments in particular, might share the tendencies of complex adaptive systems," and hence "that existing law and the claims made by legal reformers, can be evaluated more fully by attention to both the metaphors and mechanisms that complexity theory offers."

A MoneyLaw triptych

I hereby invite readers of Jurisdynamics to examine a triptych of posts at MoneyLaw on the surreal nature of academic evaluation in this elitist, pedigree-enthralled profession of ours. Here is the short version of the triptych:

1. Why the Chapman University School of Law did nothing wrong in posting old articles on SSRN


2. Why "Sextonism" is an affirmatively good thing


3. Why no academic ratings system is valid if it depends in whole or in part on a subjective survey of academic reputation

Image credit: St. John Earp, Triptych.

Poetic payoff

Jurisdynamics' inaugural constitutional law poetry slam came dangerously close to attracting no attention. Fortunately, at the very last minute, Anna E. Richey submitted this haiku:

Indelible ink!
My white hands form such perfect
Cursive, completely.

Fair enough, Anna. You win by terms of FRCP 55.

In connection with haikus, the following items warrant mention:

• FOJ (friend of Jurisdynamics) Frank Pasquale posted this interesting item, which concluded with a nonconventionally scanned (6-7-5) haiku.
• Aficionados of really bad haikus enjoy this safe space.

Thus ends this poetry slam. Euterpe has now called me to her office for a brief lecture.

Cosmological convergence

Nietzsche contra Wagner

Pelican contra Pelikan

«   A serendipitous interlude in the series, Genesis for the rest of us   »

The International Astronomical Union's fortuitous decision to name a dwarf planet after Eris, Greek goddess of discord, invites a brief discourse on the structural similarities between Eris's great mythological moment — the Judgment of Paris — and the two great temptation stories of the Judeo-Christian tradition, the fall of Adam and Eve and the temptation of Christ in the wilderness. Comparing these myths on equal footing suggests a universal hierarchy of moral attitudes toward human fallibility.

I freely admit that it seems odd for Jurisdynamics, a forum somewhat more closely attuned to genus Pelecanus than to Jaroslav Pelikan, to undertake this quest. But a cursory search of online sources reveals no effort to examine this instance of cosmological convergence. Someone ought to attempt to find the connection. Given this forum's desire to bridge naturalistic rationalism with romantic artistry, the task might as well fall to Jurisdynamics. I imagine that both Friedrich Nietzsche and Richard Wagner would approve.



In Greek mythology, the Judgment of Paris is at once culmination and commencement. The Olympic gods celebrated the marriage of Peleus and Thetis. But Eris was snubbed. In revenge, she threw a golden apple amid the celebrants. This Apple of Discord was inscribed, καλλίστῃ, "for the fairest."

Hera, Athena, and Aphrodite all claimed the apple. Zeus, as wise as he was divine, punted the task to Paris, a mortal and a son of King Priam of Troy. All three of the goddesses came before Paris on Mount Ida. Each tempted Paris:

• Hera offered to make Paris king of all Europe and all Asia.
• Athena offered as much wisdom as the mortal mind could comprehend.
• Aphrodite simply offered Paris the world's most beautiful woman.

Paris could not resist Aphrodite's bribe. The world's most beautiful woman was Helen, wife of King Menelaus of Sparta. Aphrodite won the golden apple. Paris got Helen, the hatred of all Greece, and the divine wrath of Hera. Thus began the Trojan War.

For its part, the temptation of Christ is recounted in chapter 4 of the Gospel of Luke:

¹ And Jesus, full of the Holy Spirit, returned from the Jordan, and was led by the Spirit ² for forty days in the wilderness, tempted by the devil. And he ate nothing in those days; and when they were ended, he was hungry. ³ The devil said to him, "If you are the Son of God, command this stone to become bread." ⁴ And Jesus answered him, "It is written, 'Man shall not live by bread alone.'" ⁵ And the devil took him up, and showed him all the kingdoms of the world in a moment of time, ⁶ and said to him, "To you I will give all this authority and their glory; for it has been delivered to me, and I give it to whom I will. ⁷ If you, then, will worship me, it shall all be yours." ⁸ And Jesus answered him, "It is written, 'You shall worship the Lord your God, and him only shall you serve.'" ⁹ And he took him to Jerusalem, and set him on the pinnacle of the temple, and said to him, "If you are the Son of God, throw yourself down from here; ¹⁰ for it is written, 'He will give his angels charge of you, to guard you,' ¹¹ and 'On their hands they will bear you up, lest you strike your foot against a stone.'" ¹² And Jesus answered him, "It is said, 'You shall not tempt the Lord your God.'" ¹³ And when the devil had ended every temptation, he departed from him until an opportune time.

Chapter 4 of the Gospel of Matthew tells essentially the same story, but inverts the order of the second and third temptations (angels first, then kingdoms). For reasons I am about to make clear, I prefer Luke's order.

In concert, the Judgment of Paris and the Temptation of Christ set forth a hierarchy of physical, political, intellectual, and spiritual frailty:

Temptation	Greek	Christian	Examples
Physical	Aphrodite: beautiful woman (i.e., sexual selection and reproductive success)	Stone to bread (i.e., natural selection and survival)	Esau, Rake's Progress, Paris
Political	Hera: kingdoms of Europe and Asia	Satan also offers kingdoms	Essentially all of law and political science
Intellectual	Athena: wisdom	From Genesis: forbidden fruit confers knowledge of good and evil and promises to make Eve and Adam "as gods"	Eve, Nimrod, Faust
Spiritual	Corrupt gods who unleash Eris, shuffle responsibility onto Paris, and ultimately let Greek and Trojan mortals suffer	Satan's challenge that Jesus cast himself down and invoke the help of angels	Olympic gods, Satan

The story of Eris and the Judgment of Paris, relative to the stories of Eve's and Christ's temptations, comes closer to expressing the modal existence of humanity. The simplest temptations — those related to survival and reproduction — suffice to ensnare the vast mass of humanity. Those who prefer Hera to Aphrodite are the powermongers, with few exceptions the primary work of law. Succumbing to third-order temptation — intellectual temptation — comes dangerously close to aspiring to divinity. For this sin Eve and Adam are reduced to the basal level of seeking succor, sustenance, and sexual release — the very opposite of the divine knowledge of good and evil they had sought by eating forbidden fruit. The final form of temptation, spiritual, is so far beyond human reach that both Greek and Judeo-Christian mythology allow only superhuman creatures (the Olympic gods, Satan) to engage this sort of temptation and ultimately to succumb to it.



Image courtesy of the AbleOne Educational Network
This hierarchy of human temptations may explain why law seems so out of touch at once with the modal condition of humanity (physical temptation) and with humanity's highest attainable aspirations (intellectual, perhaps even spiritual, temptation). At our best we resemble Eve; for the most part, we do no better than Paris. But I freely admit that this impression may well grow from my considered belief, reached after nearly two decades of working in this discipline, that law severed from considerations of survival and reproductive success (on one hand) and from higher aesthetic aspirations (on the other) can scarcely inform our understanding of human yearnings and failures. As Paris readily — and rightly — understood, Hera fell far shorter than did her rival goddesses of deserving the title of "The Fairest," or καλλίστῃ.

Editor's note: This series continues with part 6, Three strikes.