Sunday, March 20, 2011

The constitution and our intervention in Libya

We're now attacking military targets in Libya. I think the cause is just, but of course the outcome is impossible to predict.

What is most striking is that we have entered the fighting without any direct authorization from Congress. There is no declaration of war, and there is no "specific statutory authorization," with which we began the war in Afghanistan and both our recent wars with Iraq. And there is, as far as I'm aware, no substantial objection to this from Congress -- even though apparently public support for this fighting is quite mixed.

I doubt that the Framers of our Constitution intended to grant the President the power to initiate armed conflict on his or her own. Glenn Greenwald in Salon reports that both Obama and now-Secretary of State Hillary Clinton, as Presidential candidates, appeared to say that the President could initiate defensive fighting -- and, as Greenwald says, Libya isn't that. But I think the fact that Obama has acted as he has, and with as little Congressional opposition as he's faced, confirms that today the President does indeed have some power to initiate armed conflict. If we understand the law not as its words' intrinsic meaning or its drafters' intentions, but as what those who apply the law have actually made of it -- that is, if we are "legal realists" -- then this is the law, the constitutional law, today.

Exactly how much power to initiate armed conflict the President has isn't clear, but it is clear that there are limits on this power. Our land wars of the past 20 years have all been authorized by Congress, and I don't see a basis in current practice for saying that the President can start a war of that dimension on his or her own. But the fighting in Libya, or at least our part in it, is much more restricted: it involves no U.S. soldiers on the ground (and President Obama assures us that won't change), and perhaps involves only a fairly brief series of attacks on well-specified military targets. How much more than this small-scale engagement the President currently has legal power to initiate we do not know; but this much, I think, is within his or her present powers.

That doesn't mean that we can go on attacking Libyan targets indefinitely. We have a statute on the books, the War Powers Resolution, which makes clear that this attack must end within 60 days (with a 30-day extension in some circumstances) unless it is affirmatively authorized by Congress. Those 60 days are sometimes described as a "blank check." I don't think they are a blank check -- that is, I don't think the President can do just anything for 60 days, though I do think he or she can do what Obama has done so far. But at the 60-day limit, this fighting must either be approved by Congress or ended. It is true that that rule has on one occasion been unambiguously violated -- by President Clinton, in another good cause, the 1999 bombing campaign against Yugoslavia to end its oppression of Kosovo -- and it's also true that Presidents and Congresses have pushed back and forth on what the War Powers Resolution required on a number of other occasions. But the War Powers Resolution is still on the books, and I don't think we have an accumulated practice that indicates it's no longer really binding.

The rule that Presidents can initiate some level of small-scale military engagement may be wise or unwise. It also may or may not be retained; the accumulated practice that is its basis could be altered. But I think it is now the law, and we will now have another occasion to view its consequences. I hope they will be good.

Saturday, March 19, 2011

Do high LSAT scores and high college grades help -- or hurt -- lawyers?

In my previous post I tried to comment on some overall implications of the Shultz-Zedeck study. But several of the specific findings just cry out for discussion as well, on the complex relationships between measures of academic ability or achievement on the one hand and elements of lawyering effectiveness on the other.

Shultz and Zedeck generated an enormous quantity of data, including appraisals of study participants' competency on 26 different indices, as measured by the participants themselves, or by their peers, or by supervisors, or by peers and supervisors together, or by all evaluators together. In evaluating the extent to which various possible predictors in fact correlated with the subjects' lawyering competency, they focused (and I do too) on those instances where a predictor (such as the LSAT) correlated with a competency as appraised by at least two groups at a statistically significant level.

In the part of their study that focused on current Boalt law students, Shultz and Zedeck found that those with higher LSAT scores did better on a number of effectiveness measures, including not only "Analysis and Reasoning" -- presumably the principal focus of the LSAT itself -- but also "Writing," "Influence and Advocating," "Creativity" and "Problem Solving." (73) This finding is actually quite a comforting one for schools relying heavily on the LSAT in their admissions decisions, or in other words for almost all American law schools. It suggests that the abilities the LSAT measures are not just those of technical legal analysis but also include some more supple skills that surely are very much needed in actual practice. On one criterion, however, these students did worse, namely "Networking," and Shultz and Zedeck wonder whether high-LSAT students tend to be those who aren't as good at Networking or give it less attention. (73)

Results for the alumni/ae study subjects, who included graduates of both Boalt and Hastings, were broadly similar (53-54). Higher LSAT scores correlated positively with "Analysis and Reasoning," "Researching the Law," and "Writing"; and negatively with "Networking" and "Community Service."

Meanwhile, Boalt students with higher undergraduate grade point averages (UGPA) turn out to score lower on "Practical Judgment," "Questioning and Interviewing," "Developing Relationships," and "Community Service." All of those, the authors suggest, might reflect that those with higher grades are more focused on their books and less on engaging with others in the world. (73-74) Why wouldn't these same effects appear with higher LSAT scores? Perhaps the answer is that the LSAT tends to test just ability, while the UGPA reflects application -- and application to one's books takes time and energy that otherwise might be devoted to learning how to engage with others.

Interestingly, the same results didn't appear with the alumni/ae studied. For them, higher UGPAs didn't correlate at a statistically significant level on any of the competencies where Boalt students with higher UGPAs seemed to be weaker. (See Table 18.) Instead, among graduates, higher UGPAs correlated with higher competency in "Writing," "Managing One's Own Work," and "Diligence." (54) Perhaps the diligent people who earn high grades, and show some gaps in interpersonal competencies in their student years, apply themselves to their interaction with others once they are in practice and over time make up for their bookish focus as students. Perhaps those with high LSATs, who seem to be less skilled at Networking whether assessed as students or as graduates, just never do become interested enough in this task to master it.

The most dismaying feature of the impact of higher UGPA among the students is that it also results in lower scores on "Integrity." (73) All appraisals of Integrity -- by the students themselves, by their peers, by their supervisors, by their peers-combined-with-supervisors, and by everyone combined -- correlated negatively with UGPA, though the correlations for the appraisals by the students themselves, and by their supervisors alone, were not statistically significant. (Table 48.)

Shultz and Zedeck don't comment specifically on why this might be so. The bleakest explanation would be that those with the higher undergraduate grades sometimes didn't come by them honestly, and this lack of integrity shows up in their lawyering behavior as well. But I wouldn't read the finding this way, nor as an indication that people who study are in some way less fundamentally concerned with morality than their peers. What I suspect it indicates is that "Integrity" as a competency is a quality of action, and that those who have spent more time studying and less time in action have had less opportunity to develop themselves as moral beings. This might also explain why there's no statistically significant relationship between Integrity and students' LSAT scores; though students with higher LSATs do show signs of inattention to others in their lower "Networking" scores, they may be less inattentive to others than those who are putting in the work to earn higher UGPAs.

Interestingly, in the study of alumni/ae (at 54), higher LSAT scores did correlate negatively with self-appraisals of "Integrity," but positively with appraisals of Integrity by others (specifically, with appraisals by peers, and by peers-combined-with-supervisors, but not with appraisals by supervisors alone, see Table 18)). Shultz and Zedeck don't discuss it, but their Table 18 reflects the same kind of interaction between "Integrity" and the UGPA among the alumni/ae: a negative correlation between grades and Integrity as measured by self-appraisal, and a positive one for Integrity as measured by "Other" (that is, by peers and supervisors combined).

Shultz and Zedeck do address the LSAT - Integrity relationship, and suggest that the explanation may be that the "Self" ratings reflected participants' knowledge of their own secrets, while appraisals by others reflected the impact of successful manipulation of appearances by the guilty "Selves." (54) Presumably the same reasoning could explain the UGPA - Integrity relationship. And perhaps the reason that Integrity as appraised by all raters in the student study correlated negatively with UGPA, while Integrity correlates negatively with UGPA (and LSAT) for alumni/ae only when Integrity is appraised by the graduates themselves, is precisely that over time people learn to cover up their moral flaws from others.

But I prefer a different explanation, one that takes seriously the idea that integrity is an interpersonal quality. Over time, even those with relatively weaker interpersonal skills can learn what integrity requires -- so alumni/ae with higher UGPAs or LSATs are not in fact lacking in integrity in action. But if an inattention to others underlay their higher UGPAs and LSAT scores, perhaps that reflected a greater preoccupation with attention to themselves, and perhaps that inner-directed focus tends throughout their lives to make such people more self-critical than their peers are.

The main finding, however, is probably the one Shultz and Zedeck emphasize, namely that neither the LSAT nor UGPA nor an Index combining the two predicted much about the 26 elements of lawyering competence among alumni/ae (55) or among students (74). I don't think it follows from this overall point that intellectual ability and achievement are unnecessary to lawyering competence. Rather, I think what the finding underlines is how multifaceted good lawyering is, and how many different human attributes need to be nurtured to help people become effective lawyers.

Who will be a good lawyer?

Marjorie Shultz and Sheldon Zedeck in 2008 completed a formidable study, "Final Report: Identification, Development, and Validation of Predictors for Successful Lawyering." It builds on earlier work (which I haven't yet read but which they summarize here, at 24-27), through which they developed -- from extensive interviewing of lawyers, judges, law professors and students, and a number of clients -- 26 elements of effective practice. Perhaps even more excitingly, they adopted some existing psychological tests, and developed other tests of their own, which turned out to correlate -- much better than standard law school admission tools such as the LSAT did -- with which lawyers actually were performing effectively (that is, displayed those 26 elements of effective practice)(see 53-61).

Shultz and Zedeck are surely right (79-80) that these findings make further research along the lines they developed well worth undertaking. But they would also, I'm sure, acknowledge that we have a long ways still to go towards the goal of identifying new admission tools that will actually predict lawyering effectiveness. A marker of that distance is that the various new measures they had devised were apparently less powerfully correlated with the lawyering effectiveness of current law students than they were with the effectiveness of those already out in practice. In some respects, the new tests evidently did better than tests like the LSAT in predicting student effectiveness (76), but when the authors ran statistical multiple regressions to assess the value of all the potential predictors they had employed, it turned out that the LSAT seemed to provide the clearest predictive value! (77)

It isn't easy to know what to make of these results. One possibility is that law school -- or at any rate Boalt (the University of California at Berkeley), whose students were the ones studied in this part of the work) -- is not a setting in which it's easy to develop and demonstrate lawyering competencies. Perhaps it is only after graduation, when former students' attention turns definitively to practice, that the qualities Shultz and Zedeck's tests may predict can actually come into view. Another possibility is that today's law students aren't the same sorts of people as yesterday's, and that the psychological factors that might have predicted high competence in yesterday's students -- that is, in the current lawyers for whom the new tests correlated well with effectiveness -- don't work with today's students.

At any rate, there is clearly more to study here. Such studies won't be simple, as the 59 Tables accompanying Shultz and Zedeck's Final Report attest. But it is surely worth trying to figure out better than we now can who the most promising potential lawyers are among each year's applicants, and it is also surely worth building on the empirical effort Shultz and Zedeck have made to explain what the actual skills of successful lawyering are.

Saturday, March 12, 2011

Terrorism, by Al Qaeda and the IRA

I personally have experienced two acts of terrorism: one by Al Qaeda and one by the IRA.

As for Al Qaeda: I was at my school, New York Law School, when the two planes hit the World Trade Center about half a mile south on September 11, 2001. As I sat at my desk that morning I'd heard two thunks, which I thought at first were boxes being dropped on the floor somewhere upstairs -- but after I heard the news of the attacks I realized those were probably the two planes hitting the towers. As the morning went on, I stood outside on our corner and saw the towers burning, and then the cloud of dust from the collapse of one or both of them billowed up to about one small block short of where the law school sits.

And the IRA: I was sitting in my parents' flat in Knightsbridge in London when we felt or heard an explosion. That was the IRA's, or Provisional IRA's, bomb at Harrod's. I'd forgotten the date, but Wikipedia reports that it was December 17, 1983; I'd have been in England visiting my parents for Christmas vacation. Wikipedia also reports that 6 people were killed in that car bombing attack, including a U.S. citizen.

The IRA and Al Qaeda aren't morally equivalent. In a New York Times article reflecting on Representative Peter King, currently the scourge of supposed Muslim extremism in the US but formerly a strong supporter of the IRA, Scott Shane notes that the IRA's efforts mostly did not target civilians, whereas Al Qaeda obviously took aim directly at US civilians in the World Trade Center. I'd say the IRA's cause was more just than Al Qaeda's too, though it must be said that both groups had real oppression (Protestant rule in Northern Ireland, autocratic Arab governments supported by the US) to complain of, and in my opinion both were fanatical in their response.

A lot of very bad things have been done in wartime, and I think it's hard not to say that sometimes the end does justify the means. At the same time, a century's effort has built a body of international humanitarian law -- the more elegant and vague name now often given to the "law of war" -- that aims to minimize the means used, no matter what the ends, and that effort is profoundly important. By its terms, it is illegal for everyone to deliberately target civilians, and both the bombings that touched my life were exactly that. If Peter King doesn't see that these acts similarly deserved to be deplored, he's missing a crucial point.

Sunday, March 6, 2011

A personal note -- remembering my father

Amanda Sigler, a talented doctoral candidate at the University of Virginia, has just written an insightful biographical study of my father's work on his biography of James Joyce. (Amanda Sigler, "Joyce's Ellmann," Joyce Studies Annual - 2010, at 3-70.) It's startling to see one's father made the subject of study, but also enlightening. (As a good biography should, this study also makes reference to other people in its subject's life -- including my father's parents, my mother, my sisters, and, yes, me. All of us emerge unscathed.)

I'd always felt that my father's biographies were not only lives of the great writers he studied, but also expressions of himself. As much as he cared about each of his subjects (he wrote biographies of Yeats and Wilde as well as Joyce), and as much as he devoted himself to describing the details and the flavor of their lives, at the same time what he cared about in them he cared about in life as well, and so his accounts reflected his own response to life.

I learned from Sigler's article that my father knew this. It turns out that as he was working on the Joyce biography in the early 1950s, another scholar proposed that the two of them write about Joyce together. My father decided not to, and wrote to a friend and colleague, Ellsworth Mason, "I think I must proceed by myself; my notion of biography is that it should be a portrait of the writer as well as the subject, and I can't see how [the other scholar] and I would work together to constitute some sort of portrait a trois." (Quoted by Sigler at 20.)

What hadn't occurred to me, but Sigler sees, is that the process would work both ways. And this has to be right: as we infuse ourselves into what we do, so we ourselves learn from what we encounter. I always felt that I'd been raised partly on life experiences of James Joyce, and now I see better why that was. Sigler comments, for instance, that "for Ellmann, the little people were the important people, the small details essential to the composite whole. He had learned this lesson from Joyce, who insisted upon making ordinary men and women the subjects of his famous works." (Sigler at 58.) Joyce, as I learned myself when I read my father's work, once said, "I never met a bore" -- meaning that everyone is interesting if you engage with them. My father must have agreed, and the fact that these words of Joyce's stuck with me suggests that the lesson was passed on to me as well.

What's cause and effect here is hard to tease out. You study what you value, and you value what you study. But you're not a fixed entity either: everything you learn shapes you, every commitment of effort becomes part of your lifetime of choices. My parents denied that I was named for Joyce's Stephen Dedalus, and I'm sure that denial was sincere. Sigler (at 46) tells a similar story about my sister Lucy's name, and I believe my parents also denied that my sister Maud's name came from literature. But all these denials may also have been mistaken, for how could my parents (English professors both) help but value personally the writers and the words that they engaged so deeply with professionally?

We are what we study. We shape what we study so that it incorporates something of us. And we incorporate something of it into ourselves.