Too amusing not to quote:
In my offhand judgment, Justice Breyer’s argument about the ATS and its “fit” with the presumption [against extraterritoriality] has force. (The Chief has an answer, but it’s a very close call.) What this is actually about, though, is a monitoring problem; and on that, the Chief is right.
The ATS has become a playpen for a cabal of international law enthusiasts and plaintiffs’ lawyers. Couple the former’s wild-eyed global aspirations with the latter’s eagerness to drag corporations through our one-of-a-kind tort system, and it’s Katy, bar the door. The Chief’s rule blocks all that: if it happened abroad, that’s it. Justice Breyer’s position, in contrast, would compel the Court to monitor all the places and institutions where this stuff gets out of hand: the Ninth Circuit; the wildest district courts in the country; the folks who are in charge of the Restatement of Foreign Relations; and the people who crank up “customary” international law (which becomes “customary” when someone at Yale Law School says it is, and the Swedish Minister of Foreign Affairs agrees). If some foreign employees of a U.S. company sue other employees of that company over tortious sexual harassment at the company’s foreign plants, has the defendants’ conduct “substantially and adversely affect[ed] an important American national interest,” that of serving as a beacon of sexual equality in the world? You tell me.
To ask the Supreme Court to keep an eye on this is to declare surrender. So it’s good that the Court has drawn a line. Whether it’ll hold, we’ll see.
Josh Blackman has a summary, including the Justice’s memories of Charles Reich’s constitutional law class at Yale, his commentaries on cases from the last Supreme Court term, and a proposal to carve the faces of Federalist Society founders Lee Liberman, David McIntosh, Peter Keisler, and Steve Calabresi on Mount Rushmore.
P.S. And on the Citizens United decision [BLT]:
Alito said arguments can be made for overturning Citizens United, but not the popular one that boils down to one line: Corporations shouldn’t get free speech rights like a person.
“It is pithy, it fits on a bumper sticker, and in fact a variety of bumper stickers are available,” Alito told a crowd of about 1,400 at The Federalist Society’s annual dinner. He cited two: “End Corporate Personhood,” and “Life does not begin at incorporation.”
Then Alito pointed out the same people do not question the First Amendment rights of media corporations in cases like The New York Times Co. v. Sullivan, the Pentagon papers case. If corporations did not have free speech rights, newspapers would lose such cases, he said.
If Yale is any example, universities are surrendering without much of a fight to the Obama administration’s demands that they not give overmuch due process to students and faculty charged with sexual misconduct. And why does the press persist in treating as perfectly respectable Wendy Murphy, the oft-refuted roving criminal justice commentator and occasional Title IX complainant? [KC Johnson, Minding the Campus, earlier]
I’ll be discussing Schools for Misrule today at Syracuse University College of Law, tomorrow in Cleveland at Cleveland-Marshall College of Law at 4 p.m., and Thursday in Pittsburgh at noon at Pitt Law with critical commentary from Prof. Peter Oh. Federalist Society student chapters are sponsoring the events, which are open to the public. Come out and introduce yourself!
Thanks to my hosts over the past two weeks at Fordham (where I debated Prof. Zephyr Teachout), Brooklyn Law School, and Yale (where Prof. John Fabian Witt contributed generous comments).
Why not book me to speak at your own city or campus? You can contact me directly at editor – at – overlawyered – dot – com, call the Cato Institute at 202-789-5269, or, if you’re a Federalist Society chapter, through the Society’s home office.
Is life at the university fairer under the new sex-complaint procedures mandated by the federal Department of Education? Don’t ask the New York Times [Peter Berkowitz via Ann Althouse] More: Kathleen Parker, WaPo; Brisbane/NYT via Romenesko.
Maryland professor of mathematics emeritus Ron Lipsman reviews my book at The Intellectual Conservative, calling it “penetrating,” “comprehensive and detailed”:
He traces, in mostly a chronological fashion, how progressive philosophy and leftist ideology at first seeped into and eventually flooded the halls of American law schools. He begins by pointing out that law schools became well established on American campuses precisely during the so-called Progressive Era, 1890-1914. The law schools’ newfound prominence dovetailed nicely with the advent of professional licensure in America. By that I mean the process by which the heretofore free-for-all entry of individuals into numerous professions and vocations began to be subject to government (or government-sanctioned) certification. This became common a century ago in various American businesses and industries – from meat slaughtering to pharmacy, from barbering to chauffeuring, from teaching to medicine. Well, there was no reason to exempt lawyering from the process. And so the country’s law schools became the gatekeepers for the nation’s legal profession. Thus the faculty at the nation’s law schools – especially, those of the elite variety – obtained control over the training and philosophical outlook of the nation’s lawyers. Since we are a country under the rule of law, those who control the lawyers thereby control the law and thus the country to a great extent….
Olson’s style is actually quite engaging. Although he treats deadly serious issues with the earnestness that they deserve, he manages to maintain an understated, even restrained tone, which if anything makes his arguments more dramatic.
At Liberty Fund’s newly launched Library of Law and Liberty, lawprof/blogger Mike Rappaport after listening to my interview resolved to put the book on his reading list, having not previously appreciated how central the role of the Ford Foundation has been in influencing the schools’ development. For more on that role — as well as that of other donors like George Soros and nonprofit groups like the American Association of University Professors (AAUP) — see Scott Walter’s interesting essay in Philanthropy Daily, which includes a link to SfM.
Admit it: you want an electronic copy of Schools for Misrule for your e-reader. No problem: there are great bargains in the Books-a-Million, Barnes & Noble/Nook or Google e-books versions, the Kindle version, and the Sony version. Also check out the e-books at the Cato store, on offer this month at great savings with the code “EBOOKSALE.”
P.S. Ted Lacksonen picks up on the book’s oral-tradition “Yale Law School Anthem” (“Don’t Know Much About Property…”).
Citing a Title IX complaint, the lawsuit claims that the university’s failure to crack down harder on male behavior was in part responsible for the sensational crime in which a fellow lab worker strangled the pharmacology student and stuffed her body into a wall. [Yale Daily News, Slate "XX Factor" (despite feminist sympathies, doubting basis for suit), New York Daily News] More: Scott Greenfield, Max Kennerly.
Spluttering letter to editor: how dare you run favorable review of this Olson fellow? [Yale Alumni Magazine, scroll; earlier]
My Cato colleague Ilya Shapiro on the Obama Education Department’s unsettling insistence that colleges and universities, on pain of losing federal dollars, pare back the due process accorded to those accused of sexual misconduct. [Cato at Liberty]
Plus: earlier on Yale’s submissive reaction to Title IX complaint and suspension of a fraternity. More: “hostile environment” Title IX complaints leveled against other schools as well; Cathy Young on campus sexual assault numbers.
Federal regulators and private complainants step up pressure for tougher university disciplinary action against offensive males — and speech-related offenses will be very much under scrutiny. [Greg Lukianoff/Daily Caller, Harvey Silverglate and Kyle Smeallie/Minding the Campus, Caroline May/Daily Caller]
More: The Yale Alumni Magazine notes that DKE (Delta Kappa Epsilon) brought the University “bad publicity.” And Dave Zincavage has been blogging critically about the affair. Further: Scott Greenfield.
I think the “bat virus reservoir” analogy may be an instant classic:
Walter Olson thinks that American law schools are the origin of some very bad ideas, in something like the way bats are said to be the reservoir of certain nasty viruses in Africa: the germs of pernicious concepts incubate there in relative obscurity between epidemics, erupting occasionally to spread destruction and misery. …
His histories of liability expansion, the role of wealthy private foundations, and international human rights law activism, as well as the ever potentially corrupting influence of money, amount to a sobering crash course in how bad things can happen to good schools and countries.
Reviewer Tom Smith is a law professor at the University of San Diego as well as a well known blogger. Since much of my critique in the book is aimed at Yale Law School itself, it will be interesting to see what sort of reaction he gets. (& Right Coast, Instapundit, Prof. Bainbridge).
Attorney Ray Hartwell of Hunton & Williams reviews a certain “excellent,” “wide-ranging” and “richly informative” volume. It’s one of my favorite reviews so far; among its other virtues, it gets into the conflicting institutional pressures on law schools that underlie some of the ideological drift. For other reviews, see our posts here, here, and here. Why not order your copy — or a gift copy for a graduate or favored relative — today?
More: Today’s Yale Daily News is out with a story by reporter Nikita Lalwani on the cycle of inbreeding in high-end legal academia: top law schools draw heavily on a few elite undergraduate colleges for their student body, and in turn supply most of the future law faculty for law schools around the country. I’m quoted:
“Harvard and Yale graduates like complicated law more than the general public,” [Olson] said. “Legal academics like these complications because they are intellectually stimulating, but most lawyers just want to be able to advise their clients to either do or avoid doing something.”
And Chicago’s Brian Leiter is quoted saying something with which I’d fully agree:
In an email to the News Apr. 13, Leiter said he finds it troubling that just six schools control so much of the legal academic world.
“It is not a healthy situation, and no doubt accounts for a lot of what ails legal scholarship and explains the legal academy’s susceptibility to intellectual fads,” he said. “As long as the fad takes hold at a couple of feeder schools to legal academia, it’s guaranteed to spread.”