Last Year's Writings

Time for my once-a-year post on this blog.

This year I published two short articles, one casebook, and two notable pieces of commentary.

The first article: Is Quasi-Judicial Immunity Qualified Immunity? This is a continuation of a debate about the historical foundations for qualified immunity, published as a response to an article by Scott Keller in the Stanford Law Review. It’s only 11 pages, but might be the most important thing I’ve published in a couple years.

The other article: Reflections of a Supreme Court Commissioner provides my own take on all of the topics addressed in the long committee report of the Presidential Commission on the Supreme Court, on which I served in 2021.

The casebook is the Fifth Edition of Paulsen, McConnell, Bray and Baude. I apologize to all of the students who bought the Fourth Edition hoping to resell it, but some of the major Supreme Court decisions from last term (like Bruen and Dobbs) made a new edition urgent.

The two pieces of commentary included a discussion of the use of history by the Supreme Court: Of course the Supreme Court needs to use history. The question is how. The Washington Post was especially great to work with her, willing to let me keep in much more substance and nuance than a newspaper usually will. I was really happy about that.

And in The Atlantic, my take on the “Independent State Legislature” controversy, with Michael McConnell: The Supreme Court Has a Perfectly Good Option in Its Most Divisive Case. From the key graf: “Missing from the debate has been a key principle that points to a sensible middle ground: A state constitution may limit a legislature’s power over federal elections, but it may not give that power to somebody else. We need not an independent-state-legislature doctrine, but a constitutional-state-legislature doctrine.”

A lot of things in the hopper already for 2023.

Law Professors' Research Records Across Time and Law Schools

In my last blog post, I wrote about my paper with Jonathan Masur and Kyle Rozema on Rethinking Law School Tenure Standards. I wanted to say more about what we can learn about law professors’ research records using the data from that paper.

To study law school tenure standards, we collected a lot of data on the identities of law professors and their research records. We gathered this information from two main sources.

For data on the identities of law professors, we used the Association of American Law Schools’ annual lists of law professors to generate a panel of law professors at top 100 law schools since 1970. Our goal was to study law professors that received tenure, so we excluded non-tenure track faculty. We also excluded professors that were granted tenure after 2007. (Why 2007? We wanted 10 years of post-tenure data for every professor, and we started this project in early 2018.)

For data on law professors’ research records, we used data from HeinOnline. From HeinOnline, we were able to gather information about each publication, including the journal and year of publication. Importantly, we were also able to gather information on every citation an article has received from another article in the HeinOnline database.[1]

At this point, we have the data to explore trends in research productivity across time and across law schools. I’ll just mention two facts that come out of our data.

First, law professors’ pre-tenure research productivity has clearly increased over time. Panel A of the above figure shows that the cohort that received tenure in 1970 had published roughly 3 law review articles by the time they were up for tenure; but the cohort that received tenure in 2007 published roughly 6 law review articles by the time they were up for tenure. In other words, the number of law review articles law professors published before tenure doubled between 1970 and 2007.

This increased productivity continued after tenure. Panel B shows the number of law articles that each tenure cohort published in the ten years after tenure. In 1970, law professors published about 4 law review articles in the decade after tenure; by 2007, it was about 8 law review articles.

These trends obviously mean that standards have changed, but they also have some implications for how to think about tenure decisions. Notably, schools now have a lot more information about the quality of someone’s research when making tenure decisions, which means that if they want to, they could make better decisions. Additionally, given that professors are now writing more after tenure on average, the costs of unproductive faculty have increased over time.

Second, there are great people working across the range of law schools. The above figure plots the distributions of the within-tenure cohort percentile of law professor citations, but broken out for three groups of law school rank. Each distribution is broken down by decile, but the top decile is broken into two groups (the 90th to 95th percentile and the 95th to 99th percentile) and the bottom decile is broken into two groups (the 10th to 5th percentile and the 5th to the 1st percentile).

So what does this figure show? It shows that of a given tenure cohort (e.g., the people granted tenure in say 1995), the professors at top law schools are more likely to be in the top of the distribution of their tenure cohort. But this pattern is not perfect. There are people in law schools ranked 50-100 that are in the top of their tenure cohort compared to peers at top law schools, and there are people at top law schools that are at the bottom of their cohort.

Why does this matter? It means that there are absolutely fantastic lateral candidates that could be stars at any faculty working across the range of law schools. The problem is that our current tenure equilibriums don’t create enough opportunities for the best people to move schools if they want to.

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[1] HeinOnline does not include information on every academic article or book that a law professor might write, so it’s not a perfect source. We talk about this more in the paper, Jonathan Masur and I have separately written about how relying exclusively on HeinOnline for rankings or evaluations could distort law school rankings and labor markets.

Rethinking Law School Tenure Standards

Jonathan Masur, Kyle Rozema, and I recently published a paper in the Journal of Legal Studies titled Rethinking Law School Tenure Standards that should hopefully be of some interest to all current or aspiring law professors. Why? We go hard at the fact that something like 95 percent of law professors are granted tenure.

To the handful of people reading this blog that are on the tenure track, this might sound like a good thing. After all, being on the tenure track is stressful as hell, especially during a pandemic. So, I’m sure it would be infuriating to about any research concluding that the bar should be raised.

But to the other handful of people reading this that are either aspiring to be law professors or currently teach at schools that aren’t their first-choice, it’s the current tenure equilibrium that should be infuriating. Because the fact that tenure denials are so rare is a big part of why it’s become impossibly hard break into teaching at law schools and why so many amazing law professors have limited lateral opportunities.

But instead of just writing down our views about how to improve law school labor markets and adding footnotes so that it would look like serious research, we tried to empirically assess what would have happened if law schools had imposed tenure standards more in line with other academic departments. To do so, we combed through various sources to build a dataset of law professors hired from 1970 to 2007 and a year-by-year record of the papers they published, where they published them, and citations those papers received each year.  

Using this data, we produce two main findings. First, professors’ research records when they’re up for tenure are highly predictive of their future research output. In other words, law schools have the necessary information at the time of tenure decisions to make reliable predictions about who are going to be stars, median faculty members, or below average performers. Second, if law schools had tenure denial rates comparable to the hard sciences, it could more than double the law schools’ median post-tenure academic impact.

Now, you might think that imposing these higher standards would be a mistake because there would be a lot of false negatives (i.e., people that go on to be great that would accidentally be denied tenure) or that it would hurt the diversity of the law school faculties. But we find that these problems wouldn’t have to materialize.

There’s a lot more going on in the paper, so stay tuned for a few more posts about the data, methods, and results of our research.

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*Jonathan and Kyle are busy, careful scholars with better things to do than write blog posts. They had no knowledge that I was writing this post or approval of its contents. So feel free to blame them for the things you don’t like about the actual paper, but please don’t hold my commentary about it against them.

Last Year's Publications

Following Will’s lead, I thought I’d jot down what I published over the last year. Characteristically for me, everything I published was co-authored and the topics I wrote about were a bit eclectic.

During 2021, I published six academic articles. This included peer reviewed papers on rethinking law school tenure standards, the relationship between countries’ legal origins and their current substantive legal rules, improving support for women’s rights in Pakistan, and the contents of antitrust chapters in preferential trade agreements. It also included invited contributions on the social science approach to international law scholarship and how international law influences public opinion.

I also wrote a short piece for an online symposium for the book Mila Versteeg and I published in 2020 on How Constitutional Rights Matter, an op-ed about Supreme Court term limits, and zero blog posts. That’s right. I went an entire year without adding anything to this blog.

Given that embarrassing level of commitment to blogging, and in the spirit of a new year’s resolution to get started again, I’m going to try and write about these projects over the next few weeks. So, if this blog has any readers left (Hi Will and Will’s twitter followers!), please check back to see if I follow through or drop the ball.

Last Year's Writings

Well as you can tell we haven’t been using this space much, but I may as well jot down what scholarship I managed to get out in the last year — two short law review articles, one long article, one textbook edition, and one online symposium piece.

The two short articles were the first and last things I got out this year. The first was Constitutionalizing Interstate Relations: The Dark Side of the Force, a short piece on conflicts of law. I think it’s the first time I’ve ever given a talk at a conference and then had my remarks turned into a short publication, so it has a pretty colloquial style, but I thought I had some important enough points to make that it was worth getting out there one way or another.

The last was The Real Enemies of Democracy, my response to Pam Karlan’s Jorde Lecture on The New Countermajoritarian Difficulty. When I wrote this back in February I hoped this would seem irrelevant a year later, but alas it doesn’t.

The longer article was The Misunderstood Eleventh Amendment, with Steve Sachs, in the Penn Law Review. Repeat after me: “Eleventh Amendment Immunity” is not the same thing as “sovereign immunity.” “Eleventh Amendment Immunity” is not the same thing as “sovereign immunity.” Using these terms interchangeably is a dead giveaway that you aren’t up on the literature.

We also got out the fourth edition of our constitutional law casebook: The Constitution of the United States, with Michael Stokes Paulsen, Michael McConnell, Sam Bray, and me. We have new materials on the two Trump impeachments, the state action doctrine, and lots more. I try not to be one of those professors who spends lots of time hawking his textbook, but if you teach constitutional law and don’t like your book, you really might like ours. We have a good teachers manual, lots of sample syllabi, and are always happy to talk and give advice to new adopters.

I also wrote something for an online symposium at the Duke Center for Firearms Law on corpus linguistics and the Second Amendment: Heller Survives the Corpus. The basic question is whether various discoveries in corpus linguistics undermine the individual-rights view of the Second Amendment. My conclusion is that so far, they don’t.

These aren’t writings, but I also launched two new podcasts, of course — (Dissenting Opinions and Divided Argument) — the former of which included a great “deep dive” into originalism with Adam. Look for a cool new deep dive in the first half of 2022.

Initial thoughts on the constitutional right to concealed carry in NY Rifle and Pistol Association v. Corlett, and a possible trip to Hawaii:

The Supreme Court recently granted certiorari in NY Rifle and Pistol Association v. Corlett, likely to be the first major Second Amendment case in a decade. The question presented is whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

I'm far less expert in the Second Amendment than a lot of folks writing about the case, but for Chicago's public interest auction I agreed to write about a topic of the winner's choosing, and this is what he chose.

So here's how I think about the case.

I think Heller is plausibly correct to think that the Second Amendment protects a pre-existing individual right. I'm less sure whether Heller is correct about the *kinds* of arms that are protected by the right, or whether Robert Leider is correct that the Court should have focused more on militia-related arms like M16s and less on handguns. But even if one thinks the Second Amendment right is militia-related, more so than the majority acknowledged, the dissent's restricted interpretation doesn't seem plausible to me.

[And here I'll acknowledge that there are substantial historical critiques of Heller's methodology, especially by Saul Cornell; and that there is a growing corpus-linguistics critique as well, about which I'll have more to say later this summer. But these points aren't centrally relevant to this post.]

McDonald v. City of Chicago is also plausibly correct. There is a question about whether the Court was right to incorporate some of the Bill of Rights against the states, and I'm in the middle of working through a seminar on the original meaning of the Privileges or Immunities Clause, and still coming to my own conclusions. But if some kind of incorporation doctrine is correct, McDonald is likely correct, and it's at least plausible that some kind of incorporation doctrine is correct.

That said, even with those two premises established, the case gets tricky.

As a matter of historical practice, states had bans on concealed carry during the nineteenth century. These bans are relevant both for potential liquidation of the meaning of the Second Amendment, and more to the point, for the original meaning of the Fourteenth Amendment, which is the Amendment at issue in Corlett. Robert Leider has great work on this too.

That said, it's a harder question whether states can have those bans in a regime that also has no right to open carry. Maybe the right should still be all about the right to open carry, because maybe that was understood to be the core of the Second Amendment right. (After all, if one thinks the right is somewhat militia related, members of the militia bore arms openly, and bore arms that were hard to conceal.)

Or maybe we would give states more flexibility, saying that they can choose whether to allow open carry or concealed carry. But it does seem implausible that the state can effectively stop citizens from bearing arms outside the home.

With these questions in view, it's not clear to me that Cortlett is the best vehicle for considering these questions, compared to the recent Ninth Circuit decision from Hawaii. First, I've been told that there are some ambiguities in whether New York allows or forbids those with a carry license from carrying their firearms openly. Second and relatedly, the law of restricted gun licenses in New York is quite baroque, but it might be necessary for the Court to figure it out if the right to concealed carry depends in part on the availability of the right to open-carry. Third, New York authorities issue many carry licenses to civilians, so the regime for concealed-carry licenses is not as close to a complete or near-complete ban as Hawaii. Fourth, in New York, no state law prohibits individuals from carrying rifles and shotguns (although some cities, including New York City, restrict the practice), where Hawaii restricts both.

Now the petitioner’s lawyers are very very good, and it may well be that the Court has thought its way through these issues and they won't be a problem. For instance, in principle the Court could just announce the test it thinks is relevant and remand for application of that test to the details of New York law. But it's also possible that they will realize as they dig in to the case over the summer that it would have been wiser to grant the Hawaii case. Indeed, it's not too late. When they get a cert petition from Hawaii over the summer, they might consider granting it and consolidating it with New York so that they have the option of resolving the issue in a simpler but accurate way.

This Year's Writings

[Adam and I are going to experiment with some more posts next quarter before we decide whether to give up on this experiment, but in the meantime . . . .]

I see that in last year’s “writings” post I confessed that the year got away from me, and boy that seems comical now — between the pandemic, a delightful new baby, paternity leave, and associated child care obligations, this was not a productive year. But thanks to the magic of compound interest, I published a couple of things I’m happy with.

One article, Precedent and Discretion, is a short piece in the Supreme Court Review about the new Roberts Court’s treatment of precedent. I argue: “The real problem is not that the Court overrules too much, but that it overrules without a theory that explains why it overrules so little.” The piece was in many ways inspired by my disagreement with Richard Re’s extremely important essay Precedent as Permission, which I also recommend to anybody interested in these debates.

The other article, Adjudication Outside Article III, came out in the Harvard Law Review and you can get the abstract, the blog post version, and the podcast version all here. It’s probably the best thing I’ve published in five years, and I just wanted to say something about how I started writing it:

When I first started teaching federal courts, the one subject that I really struggled with teaching was the constitutionality of so-called legislative courts. In a way the doctrine was pretty straightforward, but the logic of the doctrine just completely eluded me. Usually when that logic eludes me I start by going back to first principles, and then mark all of the specific places where the doctrine went off track. But here, I just couldn’t figure it out. I worried that my own confusion wouldn’t serve students well and I stopped teaching the subject for several years, leaving it to my colleagues in administrative law. But one day, while I was following a legal debate between professors Aditya Bamzai and Steve Vladeck it clicked, and I started the article. Years later, here we are.

I also wrote my first op-ed in about four years, with the awkward title: Conservatives, Don’t Give Up on Your Principles or the Supreme Court. It was nice to do, but I may have gone too easy on the Court’s decision in Chiafolo, and more generally the experience reminded me why I don’t write many op-eds. Still, I couldn’t pass up the chance to get positivist originalism into the pages of the paper of record.

And that’s it for this year. I’m looking forward to getting back to work.

Trying to educate myself about that Pennsylvania election controversy

I hesitate to write about the Supreme Court litigation in Pennsylvania Republican Party v. Boockvar, since I have not been following it closely and I had been relying on the apocalyptic coverage of the case online. (The Court denied 4-4 a stay of a Pennsylvania Supreme Court decision allowing the counting of certain contested ballots after Election Day.) But last night I tried to educate myself by reading the briefs and I came away a little confused.

The briefs have a constitutional argument about the constitutional definition of “legislature” in Article II that I’ve seen a lot of writing about online. But the briefs lead off with a different argument, based on a federal statute that sets a uniform election day. As I understand this statutory argument, it is that 1: it is a violation of federal law to count ballots cast after election day, 2: the Pennsylvania Supreme Court decision creates too high of a risk that ballots cast after election day will be counted, and 3: other cases where ballots are counted after election day contain safeguards against late-casting that are not present here.

This argument seemed plausible to me, but is made most cogently in the Republican Party’s reply brief so the parties didn’t get a chance to answer it. I haven’t seen much substantive explanation of the legal flaws in this argument online, so I am wondering. What is wrong with it? (I read one commentator say that the statute isn’t relevant because it doesn’t have a private cause of action, but I believe it’s being raised as a defense.)

I assume something must be wrong with it, given the coverage of the case as borderline frivolous. I’ll try to update this post once I learn what it is.

UPDATE:

Other responses to the statutory argument I’ve encountered are:

-- the dissenting Justices must have accepted the constitutional argument, not the statutory argument. I still don’t understand why this would be so. But in the new cert petition and stay application the constitutional argument does get much more extensive billing, so maybe that is where this case is headed.

-- this would imperil the counting of overseas votes and lots of other situations where ballots are received after Election Day. As I understand it the Republican Party says that these situations are distinguishable, because they are only challenging ballots that are cast late, not those that are received late.

— this really comes down to what procedure to use to determine when a ballot is cast, and the statute is simply silent about that. Therefore the states get to decide. This seems like the best response to the statutory argument I’ve read so far.

I think the Republican Party’s response would be: 1, the state must employ some safeguard against late casting of ballots, whether a certification, a postmark, or something else, 2, the legislature did employ such a safeguard, so the court can’t throw it out. But the former is still somewhat vague and the latter potentially reduces to the constitutional argument all over again.

Anyway, as noted above, the next round of this litigation seems to focus even more on the constitutional argument, so maybe all of this self-education was for naught.

How do you figure out which conservatives shouldn't be honored? Make other conservatives do it for you.

An appealing feature of honoring people based on the positions they’ve held is that it’s ideologically neutral. Institutions, like law schools, can simply say that they’d love to host anyone that has held a sufficiently important position. And by doing so, they don’t have to make judgements about the merits of the policies that person advanced, or the decisions they made, when they held their important position. Liberal stakeholders may be upset when someone that was against marriage equality is given a prestigious invitation; but, don’t worry, the conservative stakeholders will be upset next time when someone that has advanced pro-choice positions gets the same opportunity.

Although this is roughly the standard policy that many elite institutions have adopted, I share what I understand to be the worry behind Jacob Levy’s argument: honoring anyone that holds sufficiently important positions sends a dangerous signal that nothing is beyond the pale. And it would be helpful for important people to know that if they act in a dishonorable way, they won’t get to fly around the country to be complimented, wined, dined, or even paid.

But I also share what I understand to be the worry behind Will’s argument: endorsing Levy’s view will predictably result in censoring people that have views opposed those that control our elite institutions. And, like Will suggests, currently that means that it would likely be the case that important liberal figures will still be honored while important conservative figures will be excluded.

Fortunately, there is a solution that universities generally—or law schools more specifically—can adopt that addresses both of these worries at the same time. It only requires taking two steps.

Step 1: Hire an ideologically diverse faculty and appoint ideologically diverse administrators.

Step 2: Establish a norm that people should veto efforts to honor members of their own team when they do something beyond the pale. In other words, let the conservatives figure out which conservatives are dishonorable, and then let liberals do the same thing for their team.

The advantage of this solution is simple: there are plenty of people that we all think advance positions that, in Levy’s words, are “dishonorable.” The problem is that we are poor judges when trying to make these judgements across the ideological spectrum.

For example, I think that many conservative judges write terrible opinions in the name of originalism that hurt our societies’ most vulnerable; but, as the dozen readers of this blog know, there are conservative scholars that think judges who depart from originalist positions have violated their oath of office and thus should be removed. Given that, maybe I shouldn’t be evaluating which conservative judges are worth honoring, but a conservative scholar shouldn’t be evaluating which liberal judges are worth honoring either.

The only tricky part of this solution is that it requires us academics to support hiring good people we disagree with and then to put trust in their decisions. I know plenty of academics that think those good people on the other team simply don’t exist. But any liberal (conservative) person that thinks there aren’t any conservatives (liberals) worth hiring and trusting is exactly the kind of person that shouldn’t be in charge of figuring out which of their ideological adversaries is dishonorable.

How Should Universities (Especially Law Schools) Treat The Powerful?

Jacob Levy has a two-part series on how we honor powerful people, starting with the issue of confederate monuments and then moving on to how we should treat people who worked for the government to do bad stuff. One of the core arguments is that we generally give powerful people too much credit, honor, and respect, so trends that cut back against that are probably good. I think he has persuaded me that this is correct. (I’m reminded as well of this recent article by Leah Litman, which I’ve been trying to find the time and words to write about, and may return to in another post.)

I wanted to highlight a couple of paragraphs from Levy’s second essay because they are especially relevant to how law schools operate:

The shared media culture of the days of Walter Cronkite is long gone; there are now paid media niches available to match the polarization and fragmentation of American politics. Why slink offstage in disgrace when there’s a living to be made continuing to denounce Trump’s enemies?

In light of all that, consider the institutions that thrive on prestige and proximity to power: not only think tanks and lobbying firms but also corporate boards, elite media such as the New York Times, elite universities, and the celebrity-intellectual circuit of ideas festivals and televised debates. It’s tempting and easy for such institutions to conflate openness to different ideas and ideological perspectives with bestowing prestige, honors, and money on the powerful, regardless of what political agenda they served with their power. 

In the case of the university, this is the difference between maintaining academic freedom for students or faculty members who advance a range of ideological positions and awarding honorary degrees or prestigious platforms, such as commencement addresses or endowed lectures, to persons whose claim to fame just consists of their time in politics and public office. Students and faculty members must be free to argue in favor of (for example) closed borders and the end of rights of asylum and refuge. They should also be free, in their various clubs and departments, to invite speakers to a campus to advocate those ideas. But should the architects of the family separation policy— not only Nielsen but also John Kelly, Chad Wolf, and the ideologists in the background Steve Bannon and Steven Miller— be honored for their careers? Should they receive visiting university fellowships for distinguished public servants or asked to speak to graduating seniors on the noble calling of politics? Nothing in academic freedom or intellectual freedom or freedom of speech calls for such an outcome. 

Again, there’s no avoiding substantive judgments, however much universities do and should resist simply taking partisan sides. Deciding whom to honor is different from deciding what speech to permit. Without an active commitment to refuse to honor the dishonorable, universities will likely do so, allowing themselves to be seduced by the illusion of merit attached to power and celebrity, and then dressing up the decision as intellectual openness.

As I understand the application of Levy’s theory to a law school, it would mean that a student group like the Federalist Society is free to invite any speaker they wish, but the law school might offer an endowed lecture or an honorary degree only to a former Solicitor General in the Obama administration and not in the Trump administration.

This is especially thought-provoking because law schools and the legal profession more generally are so hungrily focused on power and prestige. Students who become lawyers will often need to convince powerful people of their client’s positions. Some of those students will go on to become the powerful people themselves. Some of their professors are still angling for those positions of power.

(Indeed, at some (I think many) law schools a student group cannot invite a powerful person on their own, because the administration holds a monopoly on VIP guests, such as Supreme Court Justices, in order to ensure that they receive the VIP treatment.) All of this is bound up with the law schools’ joint mission of both scholarly study and professional training.

All of that said, I have three basic reactions.

First, a recentering of intellectual merit over power and celebrity is indeed something to aspire to. Imagine, if you can, an academic center in public law whose mission is committed to ideas over power. Imagine speakers and visitors selected only on the basis of what they have to say, and not their identity or prestige. Imagine prizes or awards given to people you have never heard of, but should, rather than to people who will draw a crowd. It is hard for me to imagine, at least at the law schools I have seen, but I think it would be a wonderful thing.

Second, that said, I have concerns about the norms Levy proposes. Yes, he’s right that “It’s tempting and easy … to conflate openness to different ideas and ideological perspectives with bestowing prestige, honors, and money on the powerful, regardless of what political agenda they served with their power.” But in an institution that does honor power, the selective denial of these awards to one ideological corner of the powerful is a form of non-openness. And it sends an especially chilling message to one wing of the students and faculty, say those who aspire to work in a Trump administration rather than a Biden administration.

Indeed, Levy acknowledges, and welcomes, the possibility that we would add more forms of public dishonor to his list. At all but maybe two law schools I’m familiar with, that list would inevitably look like the usual partisan disputes. It shouldn’t, it needn’t, but I think it would.

We could solve this problem by ceasing to venerate any of the powerful, at least not for their power’s own sake. But treating one party’s law enforcement officials as generally honorable while another’s are generally dishonorable would not be a step forward, I don’t think.

Third, I also have a more practical, darker, concern, which is that intellectual openness and institutional hunger for power and prestige might be more related than Levy allows.

On Twitter, Levy adds: “Sacrificing Bill Barr from the law school visiting speaker circuit will not leave law schools unable to find enough conservative speakers for the circuit. The legal academy has many smart and decent conservative scholars, and I'm not criticizing the existence of the circuit!”

But here is what I worry about:

When students call for the cancellation of a speaker because his or her words are seen as harmful or otherwise beyond the pale, an intellectually serious law school needs to be able to say no.

But even at the most serious schools, the administration may struggle. Sometimes they do the right thing only because of pressure from powerful alumni or judges with an affection for the school. Sometimes administrators need to be able to say “you may think these ideas don’t deserve to be heard, but we are training you to practice in front of government officials who believe these ideas or at least want to hear them, so these ideas must be able to be voiced in our walls.”

It’s logically possible for a law school to maintain strong freedom of academic speech while also communicating that these people are dishonorable and would never be given an honored place, only a dishonored place, at the school. But it’s very hard, and administrators can only do so many hard things.

Sometimes it is internal faculty pressure that keeps the flow of ideas open, but there too the issues recur. For example, there was a lot less interest among law faculties in hiring originalist scholars (and still too little interest!) when originalism did not seem to be widespread among judges.

I would like to believe that every law school left to its own devices would allow its students to form (say) a Federalist Society, and allow them to invite any outside speaker they liked, without allowing the speaker to be heckled out of the room, without covertly denying them room assignments, without adopting gerrymandered rules about outside funding and outside speakers, without professorial reprisal against the students involved. I would like to believe that every law school would do this even if the institution did not care about proximity to prestigious and powerful conservatives. But I don’t yet believe that.

Getting an Academic Job is About Getting to the Research Frontier

I just listened to the episode of Orin Kerr’s podcast, the Legal Academy, where he interviews Emma Kaufman. In the episode, Orin starts by asks a series of questions about the value of academic fellowships for aspiring law professors. Many of the questions were great conversation starters; but there was also a line of questions that gives the wrong impression about what makes academic fellowships valuable.

Orin specifically asked what’s the substance that people learn during their time as a fellow. That is, is there a “cannon” that is helpful to learn before going on the market that you’re exposed to in a fellowship? Are there a set of ideas, arguments, or articles that people will expect you know before you’re qualified to be a full-fledged member of the academy? If so, what are they? And how can people on the outside-looking-in learn them without the fellowship?

Learning the canon is something that may make you a star student, but it’s not what makes you a star on the job market. No one succeeds on the job market because they know the details of what important legal thinkers wrote. You don’t have to know about what Ronald Coase or Ronald Dworkin thought about anything to be successful on the market. This is because schools typically don’t hire academics because they have mastered the ideas of the past.

Doing a fellowship thus isn’t about getting exposed to a canon. It’s about getting to the research frontier. The stars on the academic job market are the people that have been able to identify the most important, currently active people are in their field; learned the questions they are researching, the arguments they are having, and the methods they are using; and figured out how to do something that moves the ball forward. Those important, active people in the field—who have the highly specialized knowledge to understand where the research frontier is currently located—then vouch to the gatekeepers in the academy that there is someone new that they’re learning from that’s available on the market.

Want to be a star originalist on the market? The way you get hired at a great law school is having Will Baude, Steve Sachs, and _________ (this will have to be a list of two because I don’t want to accidentally out any originalists that aren’t out and proud) say that your research changed or challenged their thinking in some way.

This is part of why it’s so difficult to really succeed on the job market without doing a fellowship. If you’re in practice or clerking, it’s tough to learn where exactly the frontier in a current field lies, and it’s even tougher to get the people who are currently at that frontier to be willing to vouch to hiring committees that you’re pushing its boundaries.

Instead, you need people to point you to the best current work being done. You then need to take the time to understand it. And then you need to find a way to say something new or better. For all but the most impressive job market stars, it takes time in the academy to pull that off.

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As a final note, Emma’s advice, especially on what makes a good job talk paper, is fantastic. I argued in an earlier post that aspiring academics should get to know young professors because they give the best advice; Emma’s interview is the perfect embodiment of that point. Her advice on finding topics that bring people in, even if that requires saying something more normative than you’d prefer, is spot on. That said, I’m pretty biased. Before this blog, Will and my joint venture was running the Bigelow program—Emma was the first person we hired.

What Constitutions Do: Unanswered Questions

In the late 19th century, American Indian tribes started writing constitutions, chiefly because they needed formal governments to facilitate relations with the federal government.[1] Like national constitutions, these tribal constitutions set out the government structures for the tribe. Yet, unlike most national constitutions, they did not necessarily reflect the tribes’ traditions values,  or unique circumstances: instead, they reflected the templates provided by the federal government. The federal government was intimately involved in the drafting process of these constitutions, offering considerable guidance, proving models, and even demanding approval power.

Ultimately, most tribes ended up with one of two broad constitutional models. The reason is that the two major parties had considerably different views on the form that tribal constitutions should take. The Republican Party believed in assimilating American Indian tribes, and it pushed for the direct election of tribal executives—which are similar to other forms of government in America—to accomplish that goal. The Democratic Party was more supportive of accommodating traditional political institutions, and it supported indirect election of executives, since this more closely reflected communal approaches to governance. Given these different views, tribes that wrote their constitutions when the Republican Party was in power typically adopted a presidential system, while tribes that wrote their constitutions when the Democratic Party was in power typically ended up with a parliamentary system.

Because the tribal constitutions reflected the preferences of the party that controlled the executive branch, and were largely exogenous to the social, political, and geographic histories of the tribes, they provide a unique natural experiment to explore the impact of constitutional design choices on long run outcomes. Recognizing this, Randall Akee, Miriam Jorgensen, and Uwe Sunde coded some 70 constitutions of tribes with democratic governments and a population of at least 750 people.[2] They further collected data on the characteristics of these tribes before and after the adoption of the constitution, like their wealth, literacy, and integration into to surrounding communities.

The results are striking: they find that constitutional design choices have a profound impact on long-run economic outcomes. Tribes that indirectly elect their executive—the model promoted by Democratic administrations—have higher income per capita and greater participation in the labor force. They argue this is likely because “parliamentary systems subject executives to the parliamentary or council approval by design, thereby enforcing a greater need for compromise and balancing of interests.”

The experience of the American Indian tribes offers important insights on how to view the findings from our book on the effectiveness of constitutional rights. Notably, even though the results in our book show that (some) constitutional rights may be less effective than many had hoped, that does not mean that other parts of the constitution are not incredibly important. Indeed, there are several important lines of research about the effects of constitutions that are left unexplored by our book that are worth further inquiry.

Notably, given that government structures can matter for economic development,[3] an important avenue for future research is whether some government structures are more conducive to rights-protection than others. For example, friend of the blog James Madison believed that the U.S. federal system would be a safeguard that would protect individual liberties.[4] But while some existing research has explored the relationship between government structure and economic growth, little headway has been made in exploring the impact of structural constitutional design choices on de facto rights protections.

Another avenue for future research is the long-term consequences of bills of rights. Our book examined the effects of constitutional rights on de facto rights protection over the course of several decades, but it is possible that it takes much longer for constitutional rights to become effective. For example, the First and Second Amendments of the U.S. Constitution did little when first adopted, but they took on new life after groups like the American Civil Liberties Union and the National Rifle Association formed in the early 20th century and used the courts and the political process to advocate for their preferred interpretations of these rights. Likewise, scholars of the Magna Carta have noted that this seminal document did very little for centuries, but that it was gradually rediscovered and became “a weapon in the struggle for modern liberty” centuries later.[5]

Yet another avenue for future research is whether the impact of constitutional rights is conditional on the presence of certain country-characteristics. For instance, it is possible that the right to education may not have an impact on low-income countries, but does have an impact in middle-income countries. Likewise, it is possible that constitutional torture prohibitions do not have an impact in countries with strong executives, but do make a difference in countries with powerful legislatures.

In our book, we did not find systematic evidence that whether countries are democratic or have independent judiciaries are crucial channels to effectuate constitutional rights. But our initial exploration leaves open the possibility that there are other conditions that might matter, such as the level of economic development, the strength of the legislature, or the presence of civil society groups. It is simply not possible to generate and test every possible contingent theory about the impact of rights in a single book. Our book is thus not the end of the debate on the role that constitutions can play in the protection of human rights.

Note: Our book, How Constitutional Rights Matter, was recently published by Oxford University Press. This is the sixth, and final entry, in a series of blog posts on parts of the argument and evidence from the book.

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[1] The U.S. Constitution initially treated American Indian tribes as foreign nations. The federal government regularly signed treaties with tribal leaders, American Indians were not given citizenship, and Congress was granted the power to regulate commerce with “Indian Tribes.” In the early nineteenth century, the Supreme Court issued a trilogy of decisions holding that it was a mistake to read the Constitution this way.See Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). Going forward, Indian tribes were to be treated like “domestic dependent nations,” with a relationship to the federal government like a “ward to its guardian.” Cherokee Nation, 30 U.S. (5 Pet.) at 17.  Despite these rulings, however, the government continued to sign treaties with American Indian tribes. This practice changed only with the passage of an 1871 law that prohibited the practice.

[2] Randall Akee, Miriam Jorgensen & Uwe Sunde, Critical Junctures and Economic Development: Evidence from the Adoption of Constitutions Among American Indian Nations, 43 J. of Comp. Econ. 844, 847 (2015).  

[3] The research on Indian tribal constitutions is not the only indication that structure matters: a body of research has similarly shown that government structures can impact economic development. See, e.g., Torsten Persson & Guido Tabellini, The Economic Effects of Constitutions (2003); Douglass C. North & Barry R. Weingast, Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, 49 J. Econ. Hist. 803, 808-12 (1989); Raphael La Porta et al., Judicial Checks and Balances, 112 J. Pol. Econ. 445 (2004); Xavier de Vanssay & Z.A. Spindler, Freedom and Economic Growth: Do Constitutions Matter? 78 Pub. Choice 359 (1994).

[4] See, e.g., The Federalist No. 51 (James Madison).

[5] See, e.g., Friedrich Hayek, The Constitution of Liberty 143 (1960); James C. Holt, Magna Carta 8-9 (1992); Paul D. Halliday, Habeas Corpus, From England to Empire 15 (2010).

Turkey’s Wikipedia Ban and Popular Support for Violating Constitutional Rights

On April 29, 2017, the Turkish government blocked access to the website Wikipedia, allegedly because Wikipedia portrayed Turkey as a sponsor of ISIS and Al-Qaeda. Although Wikipedia appealed the ban as a violation of free speech with both the Constitutional Court and the European Court of Human Rights, the site went dark immediately and has remained so for over two-and-a-half years.

In December of 2019, the Turkish Constitutional Court finally ruled that the ban was unconstitutional, apparently because it wanted to preempt a negative ruling from the European Court.  In early 2020, Turkish internet users finally regained access to Wikipedia. While this may seem like a victory for the Turkish Constitution’s protection of free speech, it is notable that the government was able to maintain a blatant constitutional violation for over two years.

Turkey is not the only country that is able to circumvent its constitution’s free speech protections. Our research reveals that it is often remarkably easy for governments to violate free speech rights. For instance, by 2010, 186 countries protected free speech in their constitution. But, according to the widely used data on rights violations, only 41 countries did not place any restrictions on that right in practice. In our research on the topic, we have found no evidence that countries that add the right to speech to their constitution are any more likely to stop curtailing free speech than those without constitutional free speech protections.

Two years ago, we used the Turkish free speech ban as an opportunity to explore why leaders are able get away with free speech violations, even when their constitution guarantees free speech. In our new book, How Constitutional Rights Matter, we argue that many governments are tempted to violate constitutional rights. Yet, they will refrain from rights violations when citizens oppose violations and are willing to punish governments that undermine the constitution, either by voting against them in the next election or through other forms of political mobilization. We used the Wikipedia ban—and the constitutional violation it represents—as an opportunity to explore whether citizens are willing to defend the constitution in the face of rights violations.  

In September 2017, we conducted a series of 1,335 face-to-face interviews in Turkey with a representative sample of their population. We first asked respondents whether they supported the ban. We then randomly told some citizens that the ban was a clear violation of the constitution, so that we could explore whether reminding citizens of the violation changes their level of support for the ban. At that time, the Constitutional Court had not yet ruled on the ban, so there was still uncertainty over the ban’s constitutionality.

Our findings do not bode well for constitutional rights protection. Notably, 93 percent of respondents said that the government should not violate the Constitution when asked the question generally. Yet, notwithstanding the high levels of support for the Constitution in the abstract, being told that the Wikipedia ban violated the Constitution did not decrease support for banning Wikipedia. Some 39 percent of respondents in the control group supported the ban, and this number actually increased to 47 percent for respondents that were told that the ban violated the constitution (although this difference is not statistically significant). Knowledge that the ban violated the constitution, then, did little to turn citizens against their government.

It is illuminating to further break down the results for the respondents that voted for President Erdogan’s AKP party. Among these respondents, the level of support for the ban was higher than for the population as a whole: some 66 supported the ban. Being told that the ban represents a constitutional violation did not cause these voters to change their support: it made them more likely to support it. Of the AKP supporters that were told the ban violations the constitution, 88 percent of respondents supported the ban. Thus, instead of becoming less supportive of their party’s policies, they actually became more supportive of it. Presumably, these AKP supporters took their government’s willingness to violate the Constitution as a signal that the underlying goal must be particularly important, which made them more supportive of the ban.

Our findings provide insight into that why it is that enforcing constitutional free speech protections is difficult. The case of the Turkish Wikipedia ban reveals that support for the constitution in general often turns out to meaningless in concrete cases. When presented with actual violations by their party, citizens support their party’s policies, not the constitution. In doing so, they essentially are giving the government carte blanche to pursue constitutional violations.

And while courts occasionally attempt to block such policies, a long line of research in political science shows that courts are usually cautious to go against the wishes of popular majorities. The attitude of the Turkish Constitutional Court illustrates this point: it simply refrained from ruling on the case until it was clear that the government was going to face a humiliating decision by the European Court of Human Rights.

These findings help illuminate the reason for our basic finding that adding individual rights to constitutions is not associated with better protection for those rights. For governments to be constrained by the constitution, they have to pay a political price for its violations. But around the world, citizens often support government actions that violate constitutional rights. 

The Turkish Wikipedia ban shows this logic in action.  It also reveals a potential lesson for other countries: preventing constitutional violations requires people to put the constitution ahead their partisan preferences. When people put their party over the constitution, the document is at risk of becoming a dead letter.

Note: Our book, How Constitutional Rights Matter, was recently published by Oxford University Press. This is the fifth in a series of blog posts on parts of the argument and evidence from the book.

Using Large-N Data to Examine the Effect of Constitutional Rights

As we described in our last post, our new book leverages several different research methods to evaluate the effectiveness of constitutional rights. The principle one of those methods is using large-N data to examine the relationship between rights included in constitutions and the protection of those rights.   

Our large-N analysis is made possible by our global database on constitutional rights provisions. To construct it, Mila, as her dissertation project, hand-coded all national constitutions that were in force in 1946 and all the subsequent amendments or wholesale replacements to those documents. For each constitution, she tracked over a hundred constitutional rights provisions and recorded when these provisions appeared in (and disappeared from) national constitutions.

For our book, the dataset was updated to include more years, cross-checked against the timeline of the Comparative Constitutions Project, and a number of historical constitutions were added. The dataset now includes detailed information on a large number of rights from 1946 to 2016 for all 194 widely recognized countries in the international state system.

Using this data, the above figure documents the spread of rights from 1946 to 2016.[1] It reveals a profound increase in the number of rights in constitutions. It also reveals that the increase in constitutional rights is not confined to a handful of countries. In 1946, a country in the 10% percentile had just 4 rights. But by 2016, that number had risen to 24. Similarly, a country in the 90th percentile had 38 rights in 1946, but 62 rights in 2016. Additionally, the most pronounced jump is in the 1990s, which was a period of unprecedented constitution-making activity, spurred by the end of the cold war.

In our book, we focuses on assessing the effect of eight key rights: (1) the freedom of speech; (2) the prohibition of torture; (3) the freedom of movement; (4) the right to education; (5) the right to healthcare; (6) the freedom of religion; (7) the right to unionize; (8) the right to establish political parties. (Although we focus on these rights, we also examine variants of these rights, and in other work we have studied the effect of other rights, including the right to association, right to housing, right to social security, and the right to gender equality.)

We examine the effect of including these rights in constitutions by using four increasingly demanding comparisons. Our goal when doing so is to be transparent about what the basic patterns are in the data. We do more sophisticated things too, but as a starting point we just want to make it clear whether there are positive correlations between rights and the protection of rights.

To illustrate, the below figure presents these four comparisons for the right to unionize. For this analysis, the dependent variable we use to measure de facto labor rights is from the CIRI project. This measure captures the extent to which workers enjoy the “freedom of association at their workplaces and the right to bargain collectively with their employers.”[2]

The first comparison is between the rights performance of countries with and without a given constitutional right. For example, this figure shows that there has been a gradual decrease in workers’ rights around the world, but that countries with the right to unionize do slightly better protecting this right. Of course, countries with and without the right to unionize are likely different in myriad of important ways, so this simplistic analysis cannot tell us whether constitutional rights make a difference.

The second comparison is the rights performance of countries in the five years before and after they adopt a specific constitutional right.[3] This comparison has the advantage of showing whether there were any within-country changes after adopting a given right. For example, the countries that add the right to unionize do notably do better at protecting de facto workers’ rights starting in the year they add this right to their constitution. 

The third comparison is the rights performance of countries before and after they adopt a specific constitutional right, while creating a control group by using a stacked event study research design. The intuition of the stacked event study is that we first define a “treatment event” as a period where a country adopts a constitutional right, and we then create “control events” comprised of countries that did not change that same right during the same eleven-year period. Using this sample of treatment events and control events, the third comparison shows that control countries experienced a gradual decline in workers’ rights at the same time that the treated countries noticed an uptick.  

Finally, because a limitation with our third counterfactual is that rights adoptions and rights outcomes could be influenced with other factors occurring contemporaneously, the fourth comparison uses the same sample, but estimates a regression model that controls for factors that could influence the adoption of the rights and rights protection (as well as a series of fixed effects for the countries, years, and events). This regression shows that there is a positive and statistically significant relationship between the de jure right to unionization and protection of workers’ rights.

In addition to these four comparisons, for each of the rights we study, we report 10 regression models that use different approaches to estimate the relationship between constitutional rights and de facto rights protections. Through all these results, we document that adding organizational rights to constitutions is associated with those organizations enjoying better rights, but for the individual rights we look at, these increases in rights protections don’t occur. There is simply little change in rights protections for individual rights after countries add them to their constitutions. 

Although these regressions cannot establish causal relationship, they can at least reveal whether there are positive associations between rights and rights protections. Through our case studies, we’re then able to examine the reasons for these patterns. The results of that research suggest that dedicated organizations are able to use constitutions to their advantage in a way that does not occur as consistently for individual rights.

 Note: Our book, How Constitutional Rights Matter, was recently published by Oxford University Press. This is the fourth in a series of blog posts on parts of the argument and evidence from the book.

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[1] The figure uses the coding of 87 unique constitutional rights. The dataset has information on many more rights, but this list of 87 rights are all the rights in the dataset that are unique rights, and do not represent more detailed coding of the same right. For example, the list of 87 rights includes the freedom of expression, but not the variable that captures whether the constitution explicitly enshrines viewpoint restrictions on speech.

[2] CIRI Human Rights Data Project, Short Variable Descriptions for Indicators in the Cingranelli-Richards (CIRI) Human Rights Dataset, Document Version 5.21.14 (2014). We specifically use the variable “worker” from the 2014 release of the CIRI dataset.

[3] We use five year windows in our second, third, and fourth comparisons. We do so because it is consistent with prior research on human rights treaties and constitutional rights. Of course, it could take longer than five years for constitutional rights to have effects, but if there is a long delay in rights improvements, it is difficult to attribute the improvement to the adoption of constitutional rights.

The Methods We Used to Study the Effectiveness of Constitutional Rights

There are many reasons for putting rights in constitutions. Rights protections may serve important symbolic purposes, like expressing national identity and articulating the nation’s highest ideals. Relatedly, recognizing rights in a country’s founding document may be important for moral reasons. In one prominent articulation of this argument, Alon Harel contends that, even if they do not have instrumental value, including rights in constitutions is morally significant because it recognizes that governments have a duty to respect them.[1]

Rights might also be included in constitutions for instrumental reasons. For instance, including constitutional rights can help parties move forward in constitutional negotiations. In the U.S., for example, the addition of the Bill of Rights has been compared to “throwing a tub to a whale” because just as sailors would sometimes throw an old tub (or barrel) to whales to keep them entertained and distracted from harming ships, the federalists agreed to the inclusion of a bill of rights to distract antifederalists from pursuing amendments that would harm the Constitution.[2]

But one would imagine that the primary reason why countries enshrine rights in their constitution is that they expect that they will help improve the protection of those rights in practice. For the reasons we described in an earlier post, however, it’s an open question whether that actually happens. And, unfortunately, figuring out the answer to that question is not a straightforward task.

This is because the question is not simply whether countries with constitutional rights do better than countries without them. Instead, the question is whether countries with the right are better off than they would have been without these rights (and whether countries without them would have been better off with them). Answering such counterfactual questions empirically is vexing for a number of reasons: constitutional rights are not randomly assigned to countries, the protection of human rights is hard to measure, and there are many country-level traits—like wealth or age—that make pinpointing cause and effect difficult.

In fact, some scholars have said that answering these questions empirically is impossible, and as a result, it’s a mistake to try to offer an answer. For example, Holger Spamann has argued that “Comparative evidence alone will hardly ever be sufficient to establish a causal claim and that statistical methods that purport to do so are likely to do more harm than good in comparative settings.”[3]

We disagree. Although sorting out this kind of causal claim is particularly vexing, we think the question is too important to leave unanswered, simply because there is no single method available that can answer it with certainty. In our new book on the effectives of constitutional rights, instead of letting the perfect be the enemy of good, our approach is to use a range of methods to study this topic. We specifically conducted large-N analysis using our dataset that includes detailed information on a large number of rights from 1946 to 2016 for all 194 widely recognized countries in the international state system. We conducted case studies in countries where constitutional rights recently changed or where constitutional rights recently came under stress. And we conducted survey experiments that directly tested mechanisms that have been hypothesized as improving compliance with human rights obligations.

For our large-N analysis, our goal is to be as transparent as possible. As a result, we always start by simply graphing the raw data, and then walking through as we add additional elements to the analysis. We’ll say more about what exactly we did in our next post, but our concern is that some of the empirical literature on human rights can feel like a black box. The researchers make arguments about the “best” way to test the relationship between human rights and rights outcomes, plug their data into a complicated set of models, and then present numbers consistent with their theories. In contrast, our goal is to focus on showing the data, and estimating a wide range of different models that are plausible ways to test these relationships. And, by doing so, allow readers to see the relationships between rights protections and actual rights protections themselves.

For these case studies, we conducted a case study on union rights in Tunisia, on political parties in Myanmar, on religious freedom in Russia, on free speech in Poland, and on the right to healthcare in Colombia. We travelled to each of these countries and conducted semi-structured interviews with people like judges, political leaders, religious leaders, civil society groups, unionists, ombudsmen, practicing lawyers, and others with knowledge of constitutional rights enforcement. In total, we interviewed over a hundred people about constitutional rights enforcement.

The logic behind conducting the case studies is that they help probe the mechanisms we theorized as driving rights effectiveness. For example, a large-N research design can tell us that countries with the right to unionize in their constitution have higher respect for worker’s rights on average, but it does not tell us why.

For the survey experiments, we conducted two different experiments in Turkey and the United States. For example, in Turkey, we employed a survey firm that conducted 1,335 face-to-face interviews with a representative sample of the population. In this survey, we asked people about their views on the constitution as it related to the Turkish government’s Wikipedia ban (we’ll write more about this next week). In the United States, we asked people about a hypothetical terror threat, and whether people would be okay with torture even when doing so violates the Constitution.

The logic behind conducting survey experiments with the general public is that they make it possible to test specific theories on why constitutional rights may make a difference: those that focus on the general public as a compliance mechanisms. This is why survey experiments are popular in the literature on the effectiveness of international human rights treaties, as much of it focuses on democratic accountability as the mechanism treaties may improve rights protections.

Our hope is that using a range of methods will allow us to triangulate onto a more accurate understanding of the effect of constitutional rights than any single method could provide. In doing so, our approach is best understood as being part of the growing trend of Mixed Methods Research (MMR) in the social sciences. The advantage of MMR is that, when “[d]one well, multi-method research combines the strength of large-N designs for identifying empirical regularities and patterns, and the strength of case studies for revealing the causal mechanisms that give rise to political outcomes of interest.”[4] Our approach, then, reflects Ran Hirschl’s statement that “there is no magic bullet or one-size-fits-all research design ‘formula’ for a field as rich and diverse as comparative constitutional studies.”[5]

We know that this discussion of methods is a little abstract, but in the next posts, we’ll explain what we learned using these different methods to study if constitutional rights work.

Note: Our book, How Constitutional Rights Matter, was recently published by Oxford University Press. This is the third in a series of blog posts on parts of the argument and evidence from the book.

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[1] ALON HAREL, WHY LAW MATTERS 7 (2014).

[2] Kenneth R. Bowling, ‘A Tub to the Whale’: The Founding Fathers and Adoption of the Federal Bill of Rights, 8 J. Early Republic 233 (1988).

[3] Holger Spamann, Empirical Comparative Law, 11 Ann. Rev. L. & Soc. Sci. 131, 138 (2015).

[4] James D. Fearon & David D. Laitin, Integrating Qualitative and Quantitative Methods, in THE OXFORD HANDBOOK OF POLITICAL METHODOLOGY 758 (Janet M. Box-Steffensmeier et al. eds., 2008).

[5] RAN HIRSCHL, COMPARATIVE MATTERS: THE RENAISSANCE OF COMPARATIVE CONSTITUTIONAL LAW (2014).

Our Theory on How Rights Matter in a Nutshell

Our new book explores how constitutional rights matter. In short, we find that some rights are more effective than others. Many constitutional rights—like Free speech, the prohibition of torture, the freedom of movement, the right to education, and the right to healthcare—aren’t associated with improved outcomes. But some constitutional rights—specifically the right to unionize, the right to form political parties, and the freedom of religion—are associated with better outcomes.

We develop a theory to explain these findings. The starting point of that theory is that including a right in a constitution, by itself, is rarely enough to change government behavior. The ostensible goal of constitutional rights is constraining government power, but a typical government has a near-monopoly on force. When a government’s interests and a constitutional rules are opposed, it’s thus not obvious why a government would respect constitutional boundaries that it could just ignore. This is why, as we previously mentioned, James Madison described the rights in the U.S. Constitution as “parchment barriers.”

Examples have piled up since Madison’s day of governments complying with its constitution when non-compliance is politically costly. This is the case when citizens act together to punish a government for rights violations through protests, electoral mobilization, litigation, or civil disobedience. When citizens can successfully impose these political costs, governments hesitate to violate rights.

But punishing governments for rights violations is not easy. To do so, citizens must overcome two obstacles. First, they need to agree when a government action constitutes a constitutional violation. This is a coordination problem. For example, diverse citizens will have different views about the type of free speech restrictions they deem acceptable. To punish the government, they must first agree on what crosses the line.

Second, after agreeing that something is a constitutional violation, they need to work together to punish the government. This is a collective action problem. Imposing political costs on a government can be hard, and potentially dangerous, work. For example, any citizen considering attending a protest might stay home if going entails legal or safety risks. Potential protesters thus need assurance that they will be joined by many others, which is difficult to get for large groups of mostly unconnected citizens.

Dedicated organizations help solve both of these problems. When there is uncertainty over whether a government action violates the constitution, organizations can persuade their members, and others, that the government did indeed cross the line. When there is uncertainty over whether people will help punish the government, organizations can assure would-be protesters that they will not be alone.

Some rights, however, are more likely than others to have dedicated organizations that care about their protection. In fact, some rights actually require an organization to be exercised. We call these organizational rights. For example, to exercise the right to unionize, there needs to be a trade union that engages in collective bargaining. Likewise, exercising political party rights requires the establishment of political parties. Freedom of religion is similar; it, too, is typically (though not exclusively) practiced with an organization. None of these organizations—unions, political parties, and religious groups—are established for the purpose of protecting constitutional rights. But when their rights are encroached upon, they have both the incentives and means to resist.

By comparison, when exercising a right is primarily an individual activity, dedicated organizations are less likely to exist. Free speech is an example: a person does not necessarily require a free speech organization to express her views. Of course, this does not mean that there are never organizations dedicated to free speech; in the United States, the ACLU is a well-known example. But since organizations are not necessary to practice rights, they depend on members and founders specifically dedicated to rights protection. Moreover, governments around the world are increasingly placing restrictions on human rights organizations, a much-discussed phenomenon referred to as “the closing space of civil society.”

And while all organizations potentially benefit from the constitution, the organizations that are necessary to practice a right enjoy an additional constitutional benefit: they are directly protected and recognized by the constitution as trade unions, political parties, or religious groups. And since the ability to organize freely and perform certain activities (e.g. collective bargaining, political organizing, and religious worship) is part-and-parcel of the constitutional rights, these organizations possess stronger constitutional leverage to oppose restrictions on their core activities than human rights organizations.

This basic story does not depend on whether countries are democratic or have independent courts. Many democracies ignore rights in their constitutions when it is expedient to do so. And, contrary to popular belief, constitutions often matter to today’s autocrats. Many modern autocrats hold elections and maintain nominally democratic institutions. At the same time, they also use the constitution to stack the deck in their favor. In many cases, this results in constitutions that simultaneously grant sweeping executive powers and contain liberal bills of rights. Because these constitutions benefit those in power, they matter to authoritarian leaders in the mold of Vladimir Putin, Recep Tayyip Erdoğan, and Viktor Orbán. But because these constitutions contain rights provisions, well-organized groups can use them to their advantage. When governments want to be seen as playing by the constitutional rules, organizations that call out violations can be hard to ignore. The result is that constitutional rights can be used strategically by dedicated organizations in autocratic and democratic regimes alike, and they can make a difference in places without independent judiciaries.

But although some constitutional rights matter some of the time, even dedicated organizations armed with the constitution are no guarantee for success. When governments are sufficiently dedicated to repression, they will get their way eventually. A well-known metaphor used in constitutional law is that of Ulysses and the Sirens. In the story, Ulysses’s crew ties him to the mast with ropes so that he can resist the temptation of the sirens’ singing. A common account is that constitutions are like these ropes: they restrain governments that are tempted to abandon course.

Our book shows that this is not a great metaphor for constitutional rights. Constitutional rights are less like firmly tied ropes and more like Speed Bumps. When used strategically by organized groups of citizens, rights slow down governments that seek to transgress their powers, but they can’t always stop a government set on repression in its tracks.

Note: Our book, How Constitutional Rights Matter, was recently published by Oxford University Press. This is the second in a series of blog posts on parts of the argument and evidence from the book.

Three Trends in Constitutional Rights Protection

Among the biggest decisions that constitution-drafters have faced is what rights to recognize. Should the constitution protect freedom of religion? Prohibit torture? Formally recognize gender equality? Guarantee access to a basic education? These questions were debated in eighteenth-century Philadelphia, in twenty-first century Katmandu, and hundreds of times in between.

Because constitutional rights exist to constrain power and document a country’s values, drafters, citizens, and non-governmental organizations consider the issue of rights-enshrinement particularly important. Rights are even commonly considered to be a crucial feature of liberal democracy itself. And whenever a country re-writes its constitution, a cadre of foreign consultants descends on it to advise the drafters—and much of the advice they offer is about the bill of rights.

But despite this strong normative consensus that rights are important, no one really knows if constitutionalizing legal barriers affects whether people actually enjoy them. Of course, that doesn’t mean that people have not had views on the effectiveness of constitutional rights.

Perhaps no view on this front is more well-known than that of the principle drafter of the U.S. constitution—and friend of the Summary, Judgement blog—James Madison. Madison characterized constitutional rights as mere “parchment barriers” that present no serious impediment to those determined to violate them.

Indeed, three recent global trends seem to support Madison’s cynicism, seriously calling into question the effectiveness of constitutional rights globally.

The first trend is the dramatic increase in the number of rights protected by constitutions. To illustrate, Panel A of the above Figure graphs the average number of rights in national constitutions from 1946 to 2016.[1] Over that period, the mean number of rights increased from 20 to 42. Modern constitutions not only recognize civil liberties like the freedom of expression or religion, but also social rights, like access to education and healthcare. They also may explicitly recognize the elderly, the disabled, children, consumers, and even animals and natural objects as being owed special protection from the government.

The second trend is the gradual improvement of countries’ actual human rights records. To illustrate, Panel B of the above Figure depicts the average scores of a leading measure of government repression—a latent index based on 13 human rights datasets—for all countries from 1949 to 2013.[2] It shows that, if a country with an average score in 2010 (for instance, Romania is the median country in 2010) had performed similarly well in 1946, it would have been in the top 16 percent of countries. (For comparison, the top performers in 2010 range from roughly Ireland to Luxembourg.)

The third trend is the puzzling one: there is a negative correlation between constitutionally recognized rights and the level of actual rights protection. Panel C of the above Figure shows a scatter plot of the repression data against the number of constitutional rights for each country. It reveals that countries with fewer constitutional rights actually have higher levels of rights protection than those with more rights. This pattern holds not just for total numbers of rights, but also for many specific rights. For instance, countries without a right to healthcare spend a higher amount of GDP on healthcare than countries that guarantee a right to healthcare in their constitutions.

Of course, this kind of cursory look at the data doesn’t prove anything. A negative correlation between constitutional rights and actual levels of government repression could be because young countries with historically poor human rights records enshrine many rights that they aspire to. Even if these new rights affect government behavior for the better, these young countries are unlikely to catch up to established democracies with fewer rights but historically strong rights records. Thus, even if the correlation between the number of rights in constitutions and actual rights practices is negative, it is nonetheless possible that constitutional rights improve those practice.

The goal of our book is to try to figure out if, despite these overall negative correlations, there are circumstances where including a right in a constitution actually matters for the protection of the right. That is, if a country includes a de jure right in its constitution, is that likely to translate into better protection of that right de facto? For example, does constitutionally enshrining the freedom of expression actually cause better protection of free speech? Or when a constitution includes the freedom of religion, do people enjoy greater religious freedoms as a result?

In the next few blog posts, we’ll explain our theory, the way we test it, and the evidence we’ve produced on the effectiveness of constitutional rights. Although we’ll have more to say about it, in short, the feature that best distinguishes rights that matter from those that don’t is whether they are practiced through formal organizations.

That said, it’s important to note that rights are never a magic bullet: when governments are sufficiently incentivized and determined to violate those rights, the best that these rights protections can do is delay or inhibit the process. This insight reflects an old saying that is commonly attributed to Henry Kissinger: “The illegal we do immediately, the unconstitutional takes a little longer.”

Note: Our book, How Constitutional Rights Matter, was recently published by Oxford University Press. This is the first in a series of blog posts on parts of the argument and evidence from the book.

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[1] Our data on constitutional rights was originally collected by Mila for other projects, and then expanded for our book.

[2] The Human Rights Score used in Panels B and C was created by the political scientist Chris Fariss. See Christopher J. Fariss, Respect for Human Rights Has Improved Over Time: Modeling the Changing Standard of Accountability, 108 AM. POL. SCI. REV. 297 (2014). The Human Rights Score is scaled so that 0 represents the average level of repression for all country-years in the dataset, and a score of +1 means that a country has a one standard deviation higher level of rights protection.

How Constitutional Rights Matter

My first book was just published by Oxford University Press. Mila Versteeg and I spent years on the project trying to comprehensively document at the effectiveness of constitutional rights around the world. For the project, we travelled around the world to conduct case studies (including in Russia, Poland, Myanmar, Columbia, and Tunisia); we expanded existing data on constitutional rights to create a complete dataset of rights in the constitutions of all 194 widely recognized countries from 1946 to 2016; we collected new data on the “small-c” constitutional rights that countries recognize but don’t put in their constitutions written constitutions; we fielded a survey experiment in Turkey; and we take advantage of a natural experiments where constitutional rights were exogenously imposed.

Mila and I are going to blog about our arguments and evidence in the coming days, but for now here is the book’s description:

Does putting a right in a constitution cause governments to actually respect it in practice? Drawing on a wide variety of methods—including survey experiments, statistical analyses, and case studies from around the world—this book explains that whether constitutional rights matter depends on the type of right.

For constitutional rights to be respected, citizens must be able to punish their government for violations. Orchestrating the kind of collective actions needed to punish governments is difficult for citizens hoping to protect individual rights, like the freedom of speech and the prohibition of torture, because the costs of activism are often not worth it for any one person. And given that individual rights often lack natural constituencies that can collectively organize to overcome this problem, governments may be able to violate these rights with impunity.

But some rights have built-in constituencies able to mobilize for their protection. These constituencies exists for rights practiced by organizations, like religious groups, trade unions, and political parties. When these groups are protected by the constitution, they can use it as a tool in their legal and political advocacy. As a result, organizational constitutional rights are systematically associated with better respect for those rights.

However, even highly organized groups armed with the constitution cannot always stop repressive governments bent on violating rights. But when groups take advantage of their organizational infrastructure to use the constitution strategically they can often slow or halt repression, even in authoritarian settings.

Apply to My Two Favorite Fellowships

Adam and I have recounted many times the importance of doing a fellowship if you are interested in going into legal academia. My two favorite fellowships are now accepting applications for the 2021 academic year.

One is the Bigelow Fellowship, based here at Chicago. Information here, application here.

The other is the Stanford Constitutional Law Center (where I did a fellowship before coming to Chicago). Information and application here

Why Isn't More Scholarship More Fun to Read?

My UChicago colleague Agnes Callard has a typically incisive column complaining that most serious academic philosophy is not very readable. Some excerpts:

These words exist for you to read them. I wrote them to try to convey some ideas to you. These are not the first words I wrote for you—those were worse. I wrote and rewrote, with a view to clarifying my meaning. I want to make sure that what you take away is exactly what I have in mind, and I want to be concise and engaging, because I am mindful of competing demands on your time and attention.

You might think that everything I am saying is trivial and obvious, because of course all writing is like this. Writing is a form of communication; it exists to be read. But that is, in fact, not how all writing works. In particular, it is not how academic writing works. Academic writing does not exist in order to communicate with a reader. In academia, or at least the part of it that I inhabit, we write, most of the time, not so much for the sake of being read as for the sake of publication. . . . .

Writing for the sake of publication—instead of for the sake of being read—is academia’s version of “teaching to the test.” The result is papers few actually want to read. First, the writing is hypercomplex. Yes, the thinking is also complex, but the writing in professional journals regularly contains a layer of complexity beyond what is needed to make the point. It is not edited for style and readability. Most significantly of all, academic writing is obsessed with other academic writing—with finding a “gap in the literature” as opposed to answering a straightforwardly interesting or important question.

Of course publication is a necessary step along the way to readership, but the academic who sets their sights on it is like the golfer or baseball player who stops their swing when they make contact with the ball. Without follow-through, what you get are short, jerky movements; we academics have become purveyors of small, awkwardly phrased ideas. . . . .

When I am asked for sources of “big ideas” in philosophy—the kind that would get the extra-philosophical world to stand up and take notice—I struggle to list anyone born after 1950. It is sobering to consider that the previous decade produced: Daniel Dennett, Saul Kripke, David Lewis, Derek Parfit, John McDowell, Peter Singer, G. A. Cohen and Martha Nussbaum. In my view, each of these people towers over everyone who comes after them in at least one of the categories by which we might judge a philosopher: breadth, depth, originality or degree of public influence. Or consider this group, born in roughly the two decades prior (1919-1938), remarkable in its intellectual fertility: Elizabeth Anscombe, Philippa Foot, Stanley Cavell, Harry Frankfurt, Bernard Williams, Thomas Nagel, Robert Nozick, Richard Rorty, Hilary Putnam, John Rawls. These are the philosophers about whom one routinely asks, “Why don’t people write philosophy like this anymore?” And this isn’t only a point about writing style. Their work is inviting—it asks new questions, it sells the reader on why those questions matter and it presents itself as a point of entry into philosophy. This is why all of us keep assigning their work over and over again, a striking fact given how much the number of philosophers has ballooned since their time.

A very similar complaint is frequently made about legal scholarship, which is famously ponderous, obsessed with prior literatures, burdened with citations, insufficiently engaging to the bench and bar, etc. etc. etc. And though I have defended law reviews in the past, I still share a lot of Callard’s instincts as applied to my own field. Why can’t more of us write like John Hart Ely or Charles Black?

Still, there must be reasons other than a collective failure of willpower or art. Here are a few hypotheses:

1. Citation norms and length are a powerful arms race. If everybody else’s papers are 35,000 words and contain 400 footnotes, your 25,000 word paper with 200 footnotes will seem “rushed” or “underdeveloped.”

2. The more advanced a field is, the less fun it is. This is why we need to invent new fields every so often, lest all of academia get bored and wander away.

3. Two kinds of people get away with defying the norms described in (1): The super-eminent academics whose reputations are so strong that everybody will read what they say even if it doesn’t have enough footnotes; and the cranks whose fun-to-read papers are sometimes more like a rant, and for whom the lack of footnotes signal a lack of seriousness or rigor. Lots of good academics who could write fun-to-read papers of the first type hold back for fear of looking like the cranks in the second type.

4. Word processing and citation managers made it too easy to write long papers. Our papers would be more fun to read if we still had to write them out and do all edits longhand.

5. This is not actually a problem. Scholarship should ultimately be about contributions to knowledge, not fun to read.

Other possibilities?