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.

_____

[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.

___

*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.

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.

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.

———

[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.

----

[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.

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.

_____

[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.

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?

Blurbs

I read a recent Facebook conversation among law professors about the following question: what purpose do blurbs serve on academic books? Putting aside endorsements from people who are President/celebrity-level famous, do blurbs ever cause anybody to buy a book?

I was embarrassed to realize when reading the thread that I actually have bought quite a few books because of a blurb. (Indeed, I was extra embarrassed to realize that I bought one just last week because of the blurb, but now I’m too embarrassed to say which one.)

Some of these were in an early stage of my book-buying life, when I was still a student and would see that Professor So-and-So, who I looked up to, had said a book was great. I was naive enough to treat this the same as if Professor So-and-So had personally emailed me and said, “Hey Will, I recommend you buy this book.” I didn’t know that some people are profligate or insincere blurbers and in any event all blurbs need to be decoded.

A little older and wiser, I instead treated blurbs as a signal of modest importance. If there are a bunch of books on a topic and I don’t know much about the authors, I might be more likely to pick up the one with blurbs by people I’ve heard of. Regardless of the content, a blurb says, “this is the book on this subject that was important enough for me to blurb.”

Now I’d say I still look at blurbs, but more to get a gestalt of how the book is presenting itself. Are the blurbs all by academics? All by law professors? All by people on one side of the ideological spectrum? Do they use words like “groundbreaking” or “accessible” or something else? Etc. Probably this approach is still wrong and I’ll grow into something else.

In any event, this made me realize that even I, who have not been asked to blurb very many books, don’t really keep track of which ones I have blurbed or what I said about them. And if I cared enough to blurb the book, you would think that I should care enough to tell you about it. So I will try to use this post to collect a list of my blurbs, and then you could hold me accountable if the books are bad or I mislead you.

“A strong supplement that provides the legal and political context for the most significant Supreme Court cases. It provides important background for all constitutional law students." — Me, on Randy Barnett & Josh Blackman, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know

“Originalism is one of the most important theories of constitutional interpretation, and yet it is often misunderstood. Ilan Wurman's explanation and defense of originalism is therefore important and timely. It is also sophisticated, accessible, and fun to read. This book should be given to every law student.” — Me, on Ilan Wurman, A Debt Against The Living: An Introduction to Originalism

"Judge Sutton, a leading federal judge who's spent his career championing federalism, is the perfect bearer of this important message: Not all constitutional law comes from the federal Constitution-we must remember state constitutions. This book should change the way constitutional law is taught and litigated." — Me, on Judge Jeffrey Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law

"Confident Pluralism is important both as a theoretical book and as a practical one. Inazu’s unusually thoughtful treatment builds on theories of pluralism to show how contemporary legal doctrine and civic engagement can and should put that pluralism into practice.” — Me, on John Inazu, A Confident Pluralism: Surviving and Thriving Through Deep Difference

If I blurbed your book and have forgotten, please remind me!

The Footnotes to My Positivist Originalism Op-Ed

I wrote an op-ed for the New York Times discussing how originalism is doing at the Supreme Court these days and whether we should stick to it. It went online on Thursday and should be in the print edition today. Here is the opening:

For decades, originalists — many of them conservatives — have argued that courts should interpret the Constitution and other law in keeping with its original meaning. And their views have gained power. Both of President Trump’s appointments to the Supreme Court — Neil Gorsuch and Brett Kavanaugh — have described themselves as originalists, leading many to hope or fear that they would form a conservative majority with Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito.

But that same court has just issued a mixed buffet of decisions — with conservatives splitting on cases concerning gay rights, immigration, executive power, Native American tribes — leading many to accuse the justices of political maneuvering or faulty reasoning. Some have also questioned whether originalism, or a related theory called textualism, is outdated.

After the Bostock v. Clayton County decision, which held that discrimination on the basis of sexual orientation is forbidden by the 1964 Civil Rights Act — Senator Josh Hawley, Republican of Missouri, said, “if textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach such a decision — an outcome that fundamentally changes the scope and meaning and application of statutory law — then textualism and originalism and all of those phrases don’t mean much at all.”

And some conservatives have turned against originalism altogether. Adrian Vermeule of Harvard Law School, to take one especially notable example, has called for conservatives to abandon originalism in favor of a “common good constitutionalism,” where judges and other officials would forthrightly import moral principles into the Constitution.

But today, originalism is the closest thing we have to a publicly shared set of legal principles. And it is not time to abandon it.

And from the end:

Still, as originalism becomes more popular and sometimes delivers liberal outcomes, originalists may fracture among themselves. Some conservatives may turn against it altogether, following the lead of Professor Vermeule. It is reasonable for some conservatives to be tempted by this position. If what matters most to you are the results in specific cases, you may want non-originalist justices.

But one danger of results-oriented judging is that other people, including future conservative judges, may not share your moral convictions. Even politicizing the courts may not produce moral consensus. Originalism is a method of evaluation, not a party platform.

Originalism has had widespread support for a reason. It has the potential to transcend our moral disagreements. And that may be what we need most in the long run.

Of course, this is a newspaper column, and covered a lot of ground, so there are a lot of details that I didn’t get into, some of which have surfaced in various critical emails and tweets. So for those who wish to engage further with the argument:

My basic case for originalism as our “publicly shared set of legal principles” is in my article Originalism Our Law?, as well as the follow-up Grounding Originalism, written with Steve Sachs. This argument also owes a great debt to Steve’s Originalism as a Theory of Legal Change. Taken together, these pieces argue for “original law” originalism — viz., that our law is the founders’ law, as lawfully changed.

The argument that we have defined originalism so capaciously that it lacks any meaning or “bite,” is refuted (I hope) in our quick six page article, Originalism’s Bite.

The argument that originalism is bad history, and/or should be done by historians rather than lawyers, is answered in our Originalism and the Law of the Past.

Finally, my thoughts so far on precedent, which I discuss in the piece as well, are in Constitutional Liquidation and Precedent and Discretion.

International Law and Support for Women's Rights

A paper I’ve been working on for six years—United Nations Endorsement and Support for Human Rights: An Experiment on Women's Rights in Pakistan—was just published (here’s the un-gated version). Given the huge amount of time that went into getting this work published, I thought I’d write a little about what it’s all about. I hope you’ll indulge me.  

International human rights law is a core area of international law. The most prominent part of this body of law is the major international human rights treaties. But in addition to these treaties, the United Nations also has several different organizations that are supposed to push countries to improve their human rights practices. However, despite the considerable effort that has been spent developing these treaties and organizations, there is still constant debate in international relations and international law circles is whether the international human rights system leads countries to change their policies.

 This is because it’s not clear exactly how commitments to international human rights law could actually translate into countries changing their policies. Why is it unclear? Because countries are unlikely to be punished for failing to change their behavior. It’s not like an army of UN soldiers in blue helmets is going to invade countries that don’t live up to their commitments to respect the freedom of speech, and other countries typically aren’t interested in expending much energy in sanctioning foreign governments for human rights abuses.

 But even though external sanctions are unlikely to drive compliance with human rights law, there are other theories about how the existence of this international regime could still lead to better respect for rights. Perhaps the most prominent theory for how this could happen is through so-called “domestic compliance mechanisms.” The idea here is that countries make commitments to international human rights, but then when a given country doesn’t live up to those commitments, various organizations within the country can point to the non-compliance as a way to make the government change its actions.

 For example, civil society groups might be able to get their government to treat women better by publicly arguing that a given policy is unfair to women; but they might have even more luck if they can also say “and our government has signed a treaty that obligated them under international law to change this policy, and they are violating that treaty.” In other words, the existence of the international commitment provides a powerful argument that can be used by groups interested in improving human rights.

For a variety of reasons, this theory is hard to test empirically. For example, human rights improve gradually over time, those improvements are hard to measure, there isn’t great data on civil society groups efforts, and there isn’t a lot of random variation in those obligations. When I was a law student, I published a paper arguing that one way it might be possible to make at least some progress testing the effectiveness of human rights law is by using experiments. Experiments have their own problems, but, among other things, they solve the problem of lack of random variation in the human rights regime.

In 2014, I made this argument while teaching a short course on international law in Germany at the Max Planck Institute of Economics. A PhD student in psychology from Pakistan named Gulnaz Anjum was in the room. Gulnaz was passionate about finding strategies that could help improve women’s rights in Pakistan, and she wanted to see if the “domestic compliance mechanisms” might help make a difference. We immediately started talking about how we could try to test this.

Gulnaz recruited a Pakistani economist she knew named Zahid Usman, and we set out designing an experiment to conduct in Pakistan on whether hearing about international obligations made more supportive of women’s rights. But there were a lot of obstacles to getting this done. For instance, women’s rights activists in Pakistan were being targeted and killed at the exact time that we were hoping to do our project. So we had to find safe places to have conversations with people about their attitudes towards women without putting our team at risk. There were plenty of other hiccups along the way too (e.g. IRB approvals, getting the funding to Pakistan, etc.). But ultimately, we were able to conduct ~600 interviews with people on their views on women’s rights while experimentally testing this theory (Gulnaz gets all the credit for that part of the project).

The experiment basically asked people if they supported various policies that the UN had identified as steps Pakistan should take to improve women’s’ rights. For example, one of the policies we tested is raising the age at which girls are allowed to get married to 18. The experimental manipulation was telling some people that the source of the policy proposals was from a United Nations report. That simple fact, telling people that the policy proposal came from a report on Pakistan’s international obligations, had a huge impact on support for the policy. On a scale of 1 to 5 (from strongly opposing a policy to strongly supporting it), this intervention increased support by about 0.5 points. Moreover, people that were told about the UN’s position on a given policy were also dramatically more likely to say they were willing to take various steps to help support women’s rights in the future.

It’s been a long road to getting this experiment run and published (Gulnaz went from being a grad student to a professor in Karachi during the time we’ve been working on it). And, of course,  of course, there are a lot of limitations with our experiment and plenty qualifications that should be made about what conclusions can be drawn for our results (but you’ll have to read the actual paper to hear those). And Pakistan is at the bottom of most rankings of women’s’ rights, so there is a lot of work to be done. But hopefully this research helps make some progress understanding the ways that international law can be effect way to advance human rights advocacy.

Immigration and Country-Specific Investments

Adam Cox and Eric Posner have a great theory about when countries are likely to offer potential immigrants more security in their status. It has a lot of moving parts, but here’s the basic idea.

There are some circumstances where people have an easy time moving between countries. For instance, if you were a French citizen working in a cafe in Paris, you might be able to easily move to Brussels and start working in a cafe there. There is freedom of movement within the EU, there probably aren’t too many hurdles to getting hired as a barista, and you’d be fine getting by speaking French (at least if you stay in the capital).

But this kind of easy move is the exception, not the rule, when it comes to international migration. If you were instead an Indian lawyer living in Mumbai, for example, it might be extremely difficult for you to move to Brussels. You’d have to find a way to get a visa, getting licensed to practice law would likely be complicated, and, even though most Indian lawyers speak excellent english, language barriers may still make professional and social interactions difficult. (This last one might just be a me thing — I spent years taking French in high school and college, but I still struggled in professional meetings when I interned at the EU.)

Making that second, more common, kind of international move requires years of planning and considerable expense. If the move falls apart, those years of planning are wasted. You can’t just ask that your time planning a Brussels move be rolled over to a Sydney move, the way you might be able to with a hotel deposit. Or, as Adam and Eric put it, making that kind of move requires making a substantial “country-specific investment.”

Country-specific investments are the efforts that people expend migrating that are wasted if they lose the ability to migrate to, or remain within, a given country. And, like all investments, people don’t want to make risky country-specific investments when there are safer alternatives available. This is especially true of potential migrants that have many good options. If you have a promising career in front of you — as a doctor, scientist, lawyer, academic, computer programmer, musician, business executive, or really any other line of work — why waste years figuring out how to move to a country that’s fickle enough to erode the value of your investment?

I always liked this theory. I talk about it in my immigration law class to explain why we should never make the mistake of thinking that the potential host countries hold all the immigration cards (e.g. “there are a lot of people that want to live in the United States, so why can’t we jerk potential migrants around as much as we feel like?”). As the theory explains, even if your country is a great place to live, many people won’t want to spend years figuring out how to move to a place that will wipe out their investment.

Now, this is the kind of theory that’s tough to test empirically (I could give a bunch of boring reasons about endogeneity, cross-country comparisons, and measurement, but I’ll assume you’ll just trust me on this one). But when I agreed to write a symposium paper on the rights of non-citizens a few years ago, I asked Adam and Eric if they’d like to work with me to try to figure out a way to do it (Adam was over committed at the time, but Eric was characteristically down to start a new project). Eric and I collected data on proxies for country-specific investments and for the protections provided to migrants. We weren’t able to complete nail down all parts of empirical support for the theory, but what we could test was consistent with it: countries that require more country specific investments offer potential migrants more protections.[2]

Why am I bringing up this theory and obscure symposium paper today? Because last night President Trump issued a sweeping executive order that suspended the H-1B, H-2B, J, and L visas programs through at least the end of the year. The people affected by that order made the country-specific investments required to get those visas believing their investments were backed by the full faith and credit of the United States. But this order deeply eroded the value of those investments (and, for some people, totally wiped them out). This move is the immigration equivalent of a country defaulting on a bond. It only takes one reckless politician to decide not to pay their country’s debts because they think some other priority is more important, but a default always has ramifications far into the future as potential investors look for less risky options.

The order yesterday thus not only arbitrarily inflected needless pain on hundreds of thousands of families during a difficult time, it sent the signal to the world’s most talented potential migrants that the United States can’t be trusted to keep our immigration promises. Many Americans may forget about this stupid move in a few news cycles, but for years to come it will make anyone considering moving to the Untied States think twice before making the investment.

—————-

[1] Adam B. Cox & Eric A. Posner, The Second Order Structure of Immigration Law, 59 STAN. L. REV. 809 (2010).

[2] Adam S. Chilton & Eric A. Posner, Country-Specific Investments and the Rights of Non-Citizens, 57 VA. J. INT’L L. 575 (2018).

Who exactly do originalists think have unwittingly sworn to be an originalist?

I’ll admit that I’ve never heard of Oath Theory until this week. But my understanding of the argument is that the theory takes at least two premises. The first premise is that Article VI of the Constitution requires political and judicial officers of the United States to “bound by oath or affirmation, to support this Constitution.” The second premise is that, due to a number of specific facts about the United States political and legal development, originalism is our law. (To be clear, only 50% of this writers for this blog believes the second premise, but my understanding is that it is a key feature of the argument.) With these premises taken together, the argument goes that anyone who takes the oath is pledging to uphold an original understanding of the constitution.

This makes me curious: for originalists that believe oath theory, who exactly do they think has taken an oath to be an originalist? And, as a natural follow up, how many of those people have been breaking it? Here are some possibilities:

1. Most obviously, a huge number of government officials. To be exact, Article VI requires that the oath be taken by: “Senators and Representatives … members of the several state legislatures … [and] all executive and judicial officers” of the United States and of the several states. Now, my understanding is that only those officials that took this oath at a time when “originalism was our law” would have been pledging to uphold originalism. I’m not sure exactly when originalism became our law, but my guess is that this still comes as quite a shock to thousands of non-originalist officials and judges.

2. Potentially all naturalized citizens.[1] When citizens naturalize, they also take an oath to support the constitution of the United States. Admittedly, this oath’s requirement is slightly different in a few ways than the Article VI oaths that might be relevant to originalists. For instance, the requirement is not part of the constitution—instead it was passed by the first Congress in the naturalization act of 1790—and the language has evolved slightly over time. The oath also requires new citizens to support “the constitution” instead of the “this constitution.” So it’s possible that these differences are material to people that believe in oath theory. But it’s also possible that an implication of the theory is that the ~700,000 people that naturalized last year were pledging to be originalists. Of course, the constitution doesn’t put a lot of obligations on private people, so regardless of whether it was a secret originalist pledge, most naturalized citizens probably aren’t breaking it. But many naturalized citizens have fought for causes like marriage equality or mandatory school desegregation that run afoul of original understandings of the constitution.

3. As far as I know, all state bars require lawyers to take a pledge to support the constitution.[2] Does this mean that every one of the currently 1.4 million lawyers in the Untied States have pledged to be an originalist? And are all lawyers that argue positions against originalist understandings of the constitution eligible for disbarment?

4. What about government officials in other countries? A quick google search reveals that there are a large number of countries around the word that also require oaths to defend their constitution. The exact status of originalism in other countries’ constitutional traditions is complicated, but originalism isn’t exclusively an American idea (you can check out Yvonne Tew’s article on the topic for the receipts). If originalism is “the law” in those countries (which it may very well not be), would the officials all be unwittingly taking pledges to be originalists too?

Now, this particular originalist argument might be new to me, but arguing with originalists is not. So I’m sure I’m going to be told that there have been forty tweets, twelve blog posts, eight academic conferences, six law review articles, and three federalist papers that already considered and answered these exact questions.

But, for my tastes, this argument wasn’t persuasive when it was just being used to claim that politicians and judges had been pledging to be originalists without realizing it. Once it’s expanded to all the other people that have pledged to support the constitution, the implications of this argument are simply too big for it to get off the ground.

___

[1] Like with officials, this would presumably only be people that naturalized sometime after originalism became out law.

[2] This would also presumably only be true under the same circumstances as naturalized citizens (e.g. if its fine for the oath to not be constitutionally required, have language that has evolved or varies by state, and not say “this constitution”).

Covid-19, Civil Liberties, and the Constitution

Cities, states, and countries around the world are taking dramatic steps to try and halt the spread of covid-19. Although leading public health experts appear to be in near consensus that severe restrictions are necessary, many of these restrictions do limit civil liberties. And some of the options that have been implemented around the world may violate those countries’ constitutions.

Kevin Cope, Charles Crabtree, Mila Versteeg, and I are researching how people in different countries feel about these limits on civil liberties. We’ll have some academic paper(s) out in the future, but the first essay reporting results from the project was just published by the Atlantic.

The essay reports results from a survey we administered to a nationally representative sample of 3,000 Americans. The survey asked respondents whether they supported implementing various policies to fight covid-19. As the above figure shows, the proposals enjoyed majority support. This is true even for more extreme proposals like restricting free speech, expropriating businesses, and conscripting workers. This was also true even for a random subset of respondents where we explicitly explained the policies may violate the constitution. And, although there are some differences between Democrats and Republicans, the differences were pretty small given the levels of polarization in America.

If you’re interested, you can read the whole piece here.

Veto Players and Compliance with International Law

One of the first projects I worked on was a paper with Rachel Brewster investigating when the United States complies with cases it loses at the World Trade Organization. We argued that the United States was likely to comply with adverse decisions when the executive could unilaterally take actions to bring actions American policy into compliance; but that compliance was unlikely to occur when it required coordination with other branches of government.

We built a dataset of the 37 WTO cases the United States had lost, figured out what happened after the loss (which was not as straightforward as I thought it would be), and then tested our argument with some basic regressions. We found evidence consistent with our claim, but it was extremely tough to say much definitive with such a small sample.

Which is why I was excited to see a paper just published in the International Studies Quarterly that looked at the universe of cases filed at the WTO. Lauren Peritz’s new paper is a massive improvement on what we did in essentially every conceivable way. But I was excited to see that the argument we made held up. Here is the abstract of Lauren’s paper:

When do international institutions promote economic cooperation among countries? The World Trade Organization (WTO) is central to the multilateral trade regime and a benchmark for international dispute resolution. Yet it remains unclear whether it has been effective in restoring trade cooperation. This article uses WTO disputes to examine the impact of domestic politics in the defendant country on compliance with adverse legal rulings. I build a novel data set on compliance. Using the method of synthetic case control, I estimate the effect of adverse rulings on trade flows between disputant countries using product level time-series trade data. I infer the defendant complied if trade flows increased after the dispute, relative to estimated levels that would have occurred in the absence of the ruling. The results show domestic political divisions—measured by veto players—hinder compliance.

That said, although Lauren’s paper is now the definitive work on the topic, my paper on WTO compliance will always be particularly important to me. Rachel asked if I would be interested in collaborating on research while I was still a law student, which then set off a chain of events that directly led me to land at Chicago. Short version: Rachel was a former Bigelow fellow, and after we worked together, she implored her former Chicago colleagues to interview me for the Bigelow while I was still on the fence about applying for fellowships. So I’m glad the idea we worked on together holds up with dramatically better data (also, thanks again Rachel!).

Race and the Criminal Justice System

The empirical evidence that race influences outcomes in the criminal justice system is overwhelming. Study after study finds evidence that people’s race changes the way they are treated by police, prosecutors, judges, and juries. Most researchers in this area are not only no longer shocked by clear evidence that people are treated differently because of their race—they are instead bored because there is already so much evidence on the subject.

The huge amount of scholarship on race and criminal justice also makes it difficult to find new novel ways to research it. But I just came across a new approach: leveraging the fact that police officers are dispatched to automobile crashes independently of the drivers race to explore the role of race on traffic citations. Here’s the abstract of the paper Jeremy Smith—an economics professor at UC Santa Cruz—wrote using this research design:

Nonrandom selection into police encounters typically complicates evaluations of law enforcement discrimination. This study overcomes selection concerns by examining automobile crash investigations, for which officer dispatch is demonstrably independent of drivers’ race. I find State Police officers issue significantly more traffic citations to drivers whose race differs from their own. This bias is evident for both moving and nonmoving violations, the latter indicating a preference for discriminatory leniency towards same-race individuals. I show this treatment is unmitigated by socioeconomic factors: officers cite other-race drivers more frequently regardless of their age, gender, vehicle value, or characteristics of the local community.

H/T to my colleague Austin Wright’s twitter feed for tipping me off to this paper.

Precedent and Discretion

This blog has been quiet, at least for my part, because some of my core job duties like grading and article-writing had to take precedence over blogging. But with some deadlines behind me, I now have time to share a short paper for the Supreme Court Review I recently posted on SSRN.

The paper is called Precedent and Discretion, and addresses some emerging theories of precedent on the Supreme Court. Here’s the abstract:

Supreme Court precedent is a topic of perennial prominence. The Court overruled or severely limited multiple precedents last year, just as it did the year before that. Because of our widely-repeated norm of stare decisis, every overruling is criticized. Scholars have then debated whether the Court needs a stronger norm of stare decisis, so that it overrules fewer cases.

This focus is misguided. Rather than worrying about which cases will be cast aside, we should pay more attention to those precedents that are left standing in place. Many of the Court’s questionable precedents nonetheless go unquestioned. 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.

At last, it seems such theories may be coming. Last term, Justice Thomas (in Gamble v United States) and Justice Alito (in Gundy v United States) each attempted to explain some of their decisions to reject and adhere to precedent. These explanations deserve serious scholarly scrutiny, which they have not yet received.

Unfortunately, these interventions do not solve, and indeed they exacerbate, the problem. What they propose is neither a regime of adherence to precedent, nor a regime without precedent, but rather a regime in which individual Justices have substantial discretion whether to adhere to precedent or not. This turns precedent from a tool to constrain discretion into a tool to expand discretion, and ultimately into a tool to evade more fundamental legal principles.

Part I describes the state of stare decisis in the Court today. Part II discusses Justice Thomas’s theory that precedent must be overruled when it is “demonstrably erroneous.” Part III describes Justice Alito’s theory that precedents ought not be overruled on the basis of “halfway originalism.” Part IV explains why discretionary precedent—of which these theories are examples—are worse than no precedent at all.