Scott Gerber on who goes to conferences, etc.

[michael curtis]

I think the issue Scott writes about below  is part of a larger winner take 
all phenomenon in American socieity--where attention in all sorts of areas 
is concentrated on a few, again and again--books reviewed in key places, 
commentators on TV and radio, etc.   Law schools are simply part of a larger 
trend.  Fame and status reinforce themselves and limit and concentrate 
attention.  We are, alas, in that respect much like the larger socieity we 
inhabit.  We all look for quick ways to assess value--where was the article 
published, where is the book reviewed?  Law schools like the U.S. are a 
pretty hierarchichal world.  These days almost all new law teachers come 
from a very few schools; the hierarchy is further refined in conferences, 
elite law reviews, etc.  The answer of course would be that this world 
reflects a natural aristocracy of talent which is not broadly 
distributed--that the hierarchy is "natural."  As to hiring I guess the 
claim would be that  law school admissions to a few elite schools with fine 
faculty, etc. have already done the necessary natural sorting.  My 
information from a colleague who chaired our hiring is that outside of 
students from a very few elite schools, law students don't even go to the 
AALS conferences in search of jobs.  I doubt this reflects simple lack of 
interest; I assume that market realities have pretty well sunk in.  As to 
conferences, much the same argument could be made.  It is hard for me to 
judge the merits, but the concentration is pretty clear.  Whatever the 
merits of the current system--and it does produce some very fine work and 
fine teachers--it is pretty well entrenched.

Michael Curtis



----- Original Message ----- 
From: "Scott Gerber" <s-gerber at onu.edu>
To: "Sanford Levinson" <SLevinson at law.utexas.edu>
Cc: <conlawprof at lists.ucla.edu>
Sent: Thursday, March 09, 2006 2:35 PM
Subject: Justice Scalia and First Things


>I am much less concerned about Justice Scalia's failure to notice an
> academic elite than I am in Sandy Levinson's willingness to cite only
> academic elites.  There are many interpretations of the founding and
> reconstruction eras, for example, than those by the elites Sandy cites.
>
> This is a real problem in the legal academy.  As I've mentioned before,
> the "law porn" conference ads that fill my faculty mailbox everyday
> list almost the same con law folks over and over.  I frankly find it
> difficult to believe that any legal scholar, no matter how hardworking
> and bright, has enough new things to say to justify being invited to,
> let accept the invitations from, the two dozen or more of these
> conferences that they opine at every year.  It's time for some new
> voices.  I realize the system won't change, b/c the people with the
> power to change it are rewarded in the current system, but Sandy's post
> gave me an opportunity to at least express my concern.
>
> Cheers,
> Scott
>
>
> Sanford Levinson wrote:
>
>
>>Re Matthew's message below:  Would Matt be less surprised (or even,
> possibly, alarmed) if Scalia had never heard of, say, Ted Lowi, Robert
> Dahl, David Mayhew, or other leading political scientists?  (I suppose
> another way of asking this question is why we consider it tolerable for
> justices to cite Madison and DeTocqueville as if they have the
> slightest relevance to American society and government in 2006.)  Ditto
> if Scalia, the self-professed originalist (at least on Mondays,
> Wednesdays, and Fridays, were ignorant of, say, Gordon Wood, Jack
> Rakove (on the Founding period) or Eric McKitrick or Eric Foner on
> Reconstruction?  How parochial do we allow judges (and, for that
> matter, law professors) to be and still take them seriously when they
> make assertions about theories of language, the operation of American
> political institutions, or the historical context of the Founding or
> Reconstruction?
>>
>>Matt, of course, is a distinguished political scientist who is
> decidedly non-parochial himself.  So the question is whether his
> seeming embrace of Scalia's proud ignorance of John Searle is related
> simply to the perception of the likely contribution that philosophers
> of linguistics have to make to debates about textualism and original
> meaning.
>>
>>On the point about legal positivism, I requote from Scalia himself:
> "the positive law adopted by the American people and entrusted to the
> enforcement of their courts...."  The most basic divided between legal
> positivism and natural lawyers, as I understand it, is whether morality
> is a necessary defining condition for regarding something as "law."
> Legal positivists, whatever their differences, all say no.  Scalia says
> no.  Therefore I put him in the camp of legal positivists.  I'm not
> sure why Matt disbelieves in my own self-description as a legal
> positivist.  I believe, for example, that slavery was an entrenched
> part of American constitutional law.  I think that Lincoln probably
> went too far when he said that a legislator was under a duty to vote
> for the Fugitive Slave Law (yes, he really did say that), but I think
> we are whistling past the cemetary to regard Dred Scott as an obvious
> overreach with regard to what the Constitution "really meant" circa
> 1857.  For me that is good reason to support disdaining the
> Constitution and even, for some, trying to overthrow it (as we
> overthrew the British Constitution in 1776-83).  But at no point do I
> argue that because slavery was horrendously immoral, it was not
> constitutional and subject to wide varitieties of legal protection.
> Does Matt disagree.
>>
>>I recognize that there is a strain even within natural law thinking,
> ably developed by Robbie George in Making Men Moral, of what might be
> labeled "prudentialism," whereby one tolerates immoral laws on the
> grounds that the society isn't yet "ready" for the full transition to a
> full-scale moral order.  But I see nothing in Scalia's analysis that
> links him to this tradition (as by saying, e.g., that "the time isn't
> right to declare that fetuses are affirmatively protected by the
> Fourteenth Amendment, but perhaps the Court will be able to move to the
> (theoretically correct) understanding of the Constitution in 25 years
> or so").
>>
>>sandy
>>
>>nck, Matthew J [mailto:mfranck at RADFORD.EDU]
>>Sent: Wed 3/8/2006 4:25 PM
>>To: Sanford Levinson; conlawprof at lists.ucla.edu
>>Subject: RE: RE: Justice Scalia and First Things
>>
>>
>>
>>I'll bite.  First, I am neither surprised nor the least bit alarmed
> that Scalia has never heard of John Searle.  I have heard of Searle,
> but "heard of him" is about all I can say, and I speak as the spouse of
> a communication scholar.  I know I have never read a book by him, and
> if I have read an article, it was not memorable.  This is perhaps a
> confession of a terrible intellectual deficiency on my part, but I
> cannot even now, after reading Sandy's tribute to him, speak of a felt
> need to go out and read John Searle.  I am sure he would say the same
> of me.
>>
>>
>>
>>More generally, I think the admission Sandy finds so shocking in Scalia
> was actually kind of refreshing.  Maybe Scalia now intends to read John
> Searle, but somehow I doubt it.  And if he thinks that the last century
> or so of academic philosophy has not had a healthy effect on the study
> and practice of the law, I would have to say that I have much the same
> sense of things.  Perhaps John Searle could persuade me otherwise;
> perhaps Sandy could persuade me that he could.  But while I am open to
> the possibility, I am skeptical.
>>
>>
>>
>>As for Scalia's crack that Searle probably hasn't heard of him either,
> this is no doubt a joke on several levels.  A little ironic (pretense
> at) self-deprecation, with a dash of a hint that academic philosophers
> have their heads too much in some other place to notice someone so
> "ordinary" yet so important as a Supreme Court justice.  Ha!  It got a
> chuckle out of me, anyway.
>>
>>
>>
>>But a final point brings me to something I think I can claim to know a
> little something about.  Why, Sandy, do you think that because Scalia
> refuses to bring any beliefs he might hold about natural law to bear on
> his constitutional decision-making, he must therefore be a legal
> positivist?  Isn't that a fairly evident non sequitur?
>>
>>
>>
>>Why, for that matter, do you think you are yourself a positivist?  I
> have heard and seen a great many people talk the talk of being legal
> positivists, but, to adapt an old saying, there aren't any in foxholes.
> I will do you the honor of saying that I do not believe you are a
> positivist.  Why do you think you are?
>>
>>
>>
>>Matt
>>
>>***************************
>>Matthew J. Franck
>>Professor and Chairman
>>Department of Political Science
>>Radford University
>>P.O. Box 6945
>>Radford, VA 24142-6945
>>phone 540-831-5854
>>fax 540-831-6075
>>e-mail mfranck at radford.edu <mailto:mfranck at radford.edu>
>>www.radford.edu/~mfranck
>>***************************
>>
>>
>>
>>________________________________
>>
>>From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
>>Sent: Wednesday, March 08, 2006 2:42 PM
>>To: conlawprof at lists.ucla.edu
>>Subject: RE: RE: Justice Scalia and First Things
>>
>>
>>
>>I strongly recommend an exchange in the letters-to-the-editor column in
> Feb. 2006 First Things, by three respondents to a review that Justice
> Scalia had written of Steve Smith's recent book.  John B. Allen offers
> an extremely sophisticated philosophical critique of Scalia's theory of
> language (even though he is generally sympathetic to Scalia's judicial
> politics), which draws the following comment from Scalia:  "I . . .
> have never even heard of John Searle (as he has not, I suppose, of
> me)."  I confess to being surprised that Scalia, who professes to be a
> "textualist," would never even have heard of the leading American
> philosopher of speech acts, given that he publishes widely in such fora
> as the New York Review of Books.  Or, if it is just too silly to
> imagine that a conservative would read the NYRB, I would have thought
> that some philosopher friend of Scalia, knowing that he is interested
> in the properties of textualism and original meaning, might have told
> him, "There's this philosopher at Berkeley who is the leading writer on
> such subjects, and you might read him before, say, you give the Tanner
> lectures at Princeton, where audiences might expect a certain level of
> intellectual sophistication when opining on the nature of speech."  I
> could understand Scalia's professing ignorance about, say, Saul Kripke
> or Donald Davidson, but his ignorance of Searle says something
> interesting, at least to me, about the huge chasm between even those
> judges who come out of the legal academy and the rest of the
> university.
>>
>>
>>
>>Incidentally, Scalia's parenthetical itself raises interesting
> interpretive questions, since it is inconceivable that Professor Searle
> "has not [heard] of [Scalia]."  Scalia sharply rejects any notions of
> "utterer's intent" as against the "public meaning" available to an
> audience.  But Scalia can't really believe that Searle has not heard of
> him.  Even if Scalia were unusually modest, it would still be foolish
> beyond belief (literally) if Scalia thought that Searle was so ignorant
> (especially after being informed that Searle is extremely interested in
> theories of language).  So what, exactly, is he intending to convey by
> the parenthetical, and how, exactly, would we figure that out?
>>
>>
>>
>>The other two respondents take Scalia to task for not reading "persons"
> to protect fetuses (and therefore, as a constitutional matter, to
> prohibit states from allowing abortion).  Although he indicates that he
> believes that states have a constitutional right to do so, he reveals
> himself, once more, to be a legal positivist, distinguishing very
> sharply between natural law and "the positive law adopted by the
> American people and entrusted to the enforcement of their courts...."
> I do not mean this as a criticism of Justice Scalia, being a positivist
> myself.  But it raises once again what is the operational importance of
> being a "Catholic justice."  Though, recall, Scalia has written, in
> First Things, that he would feel compelled to resign if the Church ever
> comes out four-square against capital punishment and requires absolute
> non-collaboration with the practice.  (Presumably, upholding a state's
> right, arguendo, to tolerate the murder of an innocent does not count
> as sufficient collaboration.)
>>
>>
>>
>>sandy
>>
>>
>
>
> ------------------------------------------------------------------------
>
>
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> --------------------------------------
>
> Scott Gerber
> Law College
> Ohio Northern University
> Ada, OH 45810
> 419-772-2219
> http://www.law.onu.edu/faculty/gerber/
> _______________________________________________
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>