The Volokh Conspiracy

Via Paul Caron at TaxProfBlog and the Wall Street Journal Law Blog, a proposal by Joshua Silverstein, law professor at Little Rock-Arkansas William Bowen School of Law, to eliminate the “C” in law school grading.  Here is the SSRN abstract for “A Case for Grade Inflation in Legal Education,” forthcoming in University of San Francisco Law Review:

This article contends that every American law school ought to substantially eliminate C grades by setting its good academic standing grade point average at the B- level. Grading systems that require or encourage law professors to award a significant number of C marks are flawed for two reasons. First, low grades damage students’ placement prospects. Employers frequently consider a job candidate’s absolute GPA in making hiring decisions. If a school systematically assigns inferior grades, its students are at an unfair disadvantage when competing for employment with students from institutions that award mostly A’s and B’s. Second, marks in the C range injure students psychologically. Students perceive C’s as a sign of failure. Accordingly, when they receive such grades, their stress level is exacerbated in unhealthy ways. This psychological harm is both intrinsically problematic and compromises the educational process. Substantially eliminating C grades will bring about critical improvements in both the fairness of the job market and the mental well-being of our students. These benefits outweigh any problems that might be caused or aggravated by inflated grades. C marks virtually always denote unsatisfactory work in American graduate education. Law schools are the primary exception to this convention. It is time we adopted the practice followed by the rest of the academy.

It is worth the time to read the whole article, because it is a more nuanced argument than perhaps the abstract suggests.  In fact, speaking as someone best described as a reluctant convert to the virtues of a required mean because of the problems of grade compression, Professor Silverstein manages to persuade me as to the bottom of the scale and where it should cut off, given the realities of the perceptions of grades.  (I remain as convinced as ever of the need to rein in the pressure at the top – and it is the nuance of Silverstein’s argument that persuades me that these are not quite identical.) Part of the nuance of the argument is that Silverstein favors – “I am a staunch proponent” – the practice of grade normalization (required mean or some form of required curve).  It’s the lack of some required mean or curve that produces  pressure toward the top (in part from unstated forms of competition among professors that always ratchet the mean upwards, never downwards, or at least only rarely so). Having taken care of that top-end problem by a forced mean or curve, Silverstein can turn his attention to the bottom.

Silverstein argues for chopping off the C grade, first, on the grounds that many law schools essentially don’t use it, and this puts students from one school at a disadvantage to students from schools that don’t give Cs.  Although a matter of importance to some law schools, in context of his central thesis about C grades, it is the less relevant argument.  But he also argues – and this is the heart of the argument – that even within a school and its grading system, students suffer unjustified internal psychological harms as well as unjustified external market harms from being classed as C students, as though it were a grade like any other, but just a grade like any other that happens to be a bad grade.  These harms aren’t really justified in more than a tiny number of cases; a B- would send an adequate signal about performance without stigmatizing the student in the way that a C does.  Silverstein would ideally like to see the following:

Paul Caron at TaxProf Blog provides a table of law professor salary data reported by a handful of schools to the annual survey request from the Society of American Law Teachers (SALT); in addition to those reported salary figures (assistant professor, tenured professor, summer stipend), there are links to individual salaries at a number of public universities.

Last week I had the pleasure of reading a pre-publication draft of Brian Tamanaha’s new book, Failing Law Schools, which has not yet been released but can be pre-ordered now. I found the book engrossing and its argument powerful. I read it in 2 days after receiving a copy, and I think it should be required reading for all legal academics.

Brian’s basic argument is that law schools have been on an unsustainable path fueled by the ready availability of student loans, the cartel power of the ABA, and the influence of the U.S. News rankings, all of which have led schools to adopt policies that help law professors more than they serve students. In most states, you can’t be a lawyer unless you graduated from an ABA-accredited school. Law professors have run the ABA accreditation process, however, and have done so in ways that ensure that all ABA-accredited schools treat professors extremely well and that law schools are quite nice places to work. This has led to a surprisingly uniform educational system in which nearly every school adopts a high tuition model that gives professors low teaching loads, nice salaries, and lots of time for research. Some professors work extremely hard and produce important scholarship, which is the goal. But many other professors just coast and take advantage of their good fortune after making it past the (typically low) tenure hurdle. And Deans generally can’t treat the hard workers and productive scholars better than the dead wood because Deans generally require faculty support to stay in office: A Dean who favors the productive scholars and top teachers too much may not stay in office long. So salaries for all professors are high and course loads are low, whether the professors work 80 hours a week or 20.

While this is a great situation for law professors who want a cushy life, it doesn’t serve students. The high cost model of legal education means that students are mostly denied ways of obtaining low-cost legal educations, which has led to spiraling costs for legal education that make law school best suited for the wealthy, those on scholarship, and those able to compete successfully for corporate or public-interest jobs. Some applicants don’t realize this, in part because loans are so easy to obtain and schools are in no hurry to point out the economics of legal education. And even while law school is so expensive, the obsessive focus by law school applicants and alumni on the U.S. News ranking has led schools to change their programs and their admission standards to whatever helps their U.S. News ranking, even if it hurts the quality of their educational programs. Maximizing U.S. News rankings has led schools to restructure their admissions standards, limit part-time programs, raise the number of transfers, and raise tuitions to make room for scholarships that can be used to maximize the numbers of the entering class. A Dean who doesn’t do this won’t stay a Dean long; the U.S. News rankings are so widely considered authoritative that a Dean whose school falls in the ranking is considered a failure. So even at the high dollar figure of most law schools, the focus is on making changes that maximize rankings, not delivering the most effective education for students. The model is unsustainable, Brian argues, and we have begun to see that already with the recent drop in law school applications that may soon threaten the viability of a number of law schools.

Importantly, Brian does not argue that every school needs to change. His basic argument is that there are lots of different kinds of law schools, and they should be allowed to follow different models. There is no one way to create a lawyer, contrary to the assumption of the ABA accreditation process. The “top” schools can and should continue basically as-is. Their students want a 3-year academic degree in a scholarly atmosphere, and their graduates generally can get the jobs needed to pay off loans quickly. So there is no need to change there. But less elite institutions should be free to adopt lower cost models. They should be free to rely more on adjuncts, or have professors with higher teaching loads or who don’t focus on research. They should be free to offer two-year degrees instead of three-year degrees. A diversity of offerings will better serve students who have different needs and different abilities to pay for legal education. One-size-fits-all just can’t work.

I found Tamanaha’s analysis compelling, and his basic deregulatory solution pretty convincing. (I wasn’t fully convinced by all of the details in the various proposals he makes, but that’s a quibble in the overall scheme of things.) Whether people agree or disagree with the book, it should — and I think will — receive a wide audience among legal academics. Tamanaha’s book is both thoughtful and damning, made all the more persuasive because Tamanaha is an experienced and respected academic who builds his argument carefully step by step with an insider’s understanding. It’s definitely worth a careful read — and for defenders of the status quo, a thoughtful response.

Many law professors are distressed by the proliferation of online course outlines and case briefs. Commercial outlines have been available for years. Now those students inclined to rely on such study tools have access to lower-cost alternatives. That’s not the problem. Rather it’s the existence of outlines that purport to represent how specific professors teach specific classes and (worse) that such outlines are often riddled with errors. I’ve looked at a few outlines from my classes on various websites and was astounded at the number of mistakes. If these outlines are representative of what’s out there, students rely on them at their own risk (and some have — which could explain how every year I find a set of exams making the same set of off-the-wall mistakes).

Some professors have sought to squelch the distribution of notes and outlines from their courses. Professor Bainbridge has come up with a better idea — one I may have to emulate.

I’m going to buy some of these note sets and outlines being sold for my classes. I’ll go through them and find all the mistakes. And then I’ll write exam questions testing on those very same mistakes. If we all did that, the market would dry up pretty quick.

UPDATE: Some of the comments below reflect an odd view of legal education.  A law school exam should test the extent to which a student has mastered the assigned materials.  A student who has mastered the assigned materials will not reflexively regurgitate mistakes found in an outline, whether purchased in a book store or downloaded from the web.  Indeed, uncritically copying or repeating what one finds in an outline is no way to learn the law.  Fortunately, in my classes, this problem appears to be confined to a handful of students each year.

An exam should fairly represent the material covered, not focus on picayune details or play gotcha. My own exams reflect this approach.  They are difficult (or so my students say), but are a fair reflection of what we covered in class.  Most of my former students say my exams were “tough but fair” — and that’s what I want them to be.  Reviewing attendance records, I’ve also found that those students with the poorest attendance records tend to have among the lowest scoring exams, suggesting that paying attention in class pays dividends — and, again, that is what I would hope for.

I have no problem with outlines or other supplemental material if used properly. Every year I make a point of recommending supplemental material that I believe students will find helpful and of explaining how such material (including commercial outlines) can be used most productively.   I referred to outlines in some of my classes as a student.  Yet as I explain to my students every year, I don’t believe commercial or web-based outlines are a substitute for reading and digesting the material or preparing one’s own outline of a course.  If all that were necessary to achieve a good grade were finding the right outline, there would not be much value in taking the course — indeed, there would not be much value in law school beyond the credential.

An interesting essay, via Prawfs. If I were a law clerk, I would ignore the names of professors who are signatories but not authors of amicus briefs. In my experience, some of the professors who sign on to amicus briefs don’t even bother to skim the briefs filed in their name. Those who read the briefs sometimes have serious reservations about their content, and others simply don’t know enough about the area of law to determine if the brief is accurate. Caveat scriba, you might say. More from Ward Farnsworth here.

My Washington College of Law colleague Robert Tsai points me to an interesting Huffington Post article  by Anis Shivani on new directions for university presses.  I have a somewhat more critical take on this, in the sense of an interest in the economic and business models driving the presses as they move in different directions.

For example, I wonder how falling costs of producing books and different and cheaper distribution models via Amazon interacts with a relative decline, at least among senior law professors, in the prestige of law review articles in favor of books.  I wonder about shifts in the hiring, promotion, tenure, and lateral process and ways in which that drives a cycle of academic production – at least among law professors – of crank out articles, repackage as book, start cycle again – but without it being clear to me, at least, that there is great value added in putting the articles between hard or soft covers.  We tell ourselves that we are pulling together a handful of articles into a unified book-y whole, but, well, I wonder how much it is simply driven by a combined shift in the prestige markers within our academic world and shifts downward in the cost of production, along with dissatisfaction with the student law review publishing model.

Is that a bad thing?  The sometimes assumed frivolity and waste of publishing in humanities, social science, and law – the purely critical story is not all there is to it, by any means.  I, for one, do look forward to a revival of the humanities as a source of meaning.  The availability of an increasing number of scholarly books at a much cheaper price than, well, Cambridge UP’s sticker-shocker numbers is a terrific thing.  It takes into account lower productions costs, the idea that university libraries are not the only places to find these books, and a host of other things.  That many of these books are deliberately aimed at a wider audience than the university library is a feature of many of these new business models; that will inevitably mean more popular titles.  It will inevitably mean a certain amount of wishful marketing ... frankly unreadable academic tomes with exciting titles, cool covers, and misleading blurbs.  But I’m not convinced at all that these will crowd out traditional academic monographs.

Those are mostly questions I have within the world of academic law publishing, however, while Shivani’s post is on university presses more broadly.  It is worth reading in part just to get a sense of the ways in which presses are extending themselves, and also because it might give some readers a sense of where to turn to for particular varieties of books, and for authors among us to get a sense of what presses might be suitable for what ventures.

Speaking of blurbs, I’m somewhat surprised that as a marketing strategy, academic writers do not take a page from the marketing of that great work of 1990s fiction, A.A. Gils Sap Rising. Reviews were either wildly positive or wildly negative ... so the publisher put them all on the back, including in alternation:

• “He writes so brilliantly.”
• “Extremely badly written, hideously and unamusingly obscene.”
• “A clever, sexy story.”
• “Frightful pile of garbage.”

And then it ended up with the laconic comment of the Times Literary Supplement (a venue for which I occasionally write, and for which this kind of plain, unadorned, Eric-Blair-would-approve-of-it prose makes me proud to be a TLS contributor):

• “This is a dirty book.”

In academic writing, however, one is not looking for this exactly, it is slightly different.  What one wants in academia is not a collection of wildly for and wildly against.  Because academic writers are generally trapped – self-stranded, to be precise – in cul-de-sacs of like-minded academics, no one is much impressed by the log-rolling blurbs of one’s confreres.  But for a converse (or do I mean ‘obverse’?) reason, no one will be much impressed by the attacks of one’s enemies, either.  What one wants is what so much of contemporary academia is out to deny – except when it comes to what people say about one’s own academic work – viz., that I utterly disagree with it and indeed at some profound level think it deeply mistaken and even wrong, but alas I cannot deny the sheer intellectual power, unaparalleled learning and erudition, and brilliance heft of this work.

Endorsement from outside one’s epistemic community, in other words, on the basis of an ideal of neutral, objective quality that we long for, when it comes to our own stuff, but within academia don’t really accept.  We deny its validity – but then want its validation.

CoConspirator Todd’s post on the growth of administrative staff at universities raises a further question for me.  Considered as a public choice/incentives question, what are the rational incentives of university administrators regarding faculty tenure?  We have had some interesting discussions here at VC on the policy considerations on tenure – I’ll weigh in on them at some point, but not today – but in this post I have another kind of question.

If the study to which Todd links is correct, and administrative staff is growing in this way, along with an accumulation of administrative power within universities, what are the incentives of university administrators with respect to the institution of faculty tenure?  Would they tend to disfavor tenure because it empowers faculty potentially vis a vis administrators?  Because administrators would prefer to see faculty as employees or, perhaps, simply independent contractors?  Rather than a potentially competing source of university governance on the traditional (and somewhat mythical, at least in the past few decades) “collegial” model?  Or are their incentives something else altogether?

That is, I am asking a very specific question regarding the rational incentives of university administrators.  (Please comment only if you have something that goes to that question, and please, no rants or off-topic disquisitions.)

The American Association of Law Schools section on financial regulation is seeking paper proposals for the January meeting on all topics of financial regulation and regulatory reform.  The deadline for proposal submissions is August 1, fast approaching; I have posted details below the fold, and you can also contact my colleague Anna Gelpern with any questions ... agelpern at wcl dot american dot edu.  I encourage to take advantage of this opportunity for exploring these issues; as I suggested in a recent talk to a student group that was later published as an informal essay, lawyers and law professors do have certain comparative advantages in relation to economists and others in addressing financial regulatory reform.   Continue reading ‘Financial Regulation Reform – AALS Call for Papers’ »

The Atlantic is running an excerpt from Sebastian Mallaby’s new book, More Money Than God: Hedge Funds and the Making of  New Elite, which is out on June 14.  The excerpt covers the famous moment when George Soros broke the pound in 1992.  (It was then that I went to work for him, as general counsel to his charities, but mostly I remember people running in and out of rooms bringing him faxes while he was holding simultaneous meetings on assisting Eastern Europe.)  Mallaby is a terrific writer, and if you have any interest at all in the topic – and Mallaby is outstanding at bringing together the matters of finance and money with politics and power – you are likely to be interested in this book.  It is definitely on my summer reading list, although I am desperately hoping for a Kindle version, as I will be traveling and can’t haul around a lot of stuff.

On hedge funds and private equity in a different direction, I received an examination copy of a new textbook, An Introduction to Investment Banks, Hedge Funds, and Private Equity: The New Paradigm, by David P. Stowell.  It is excellent – clear, informative, well-written.  It is aimed at an undergraduate course audience, perhaps in the upper classes, but would also be perfectly useable in business school as an intro text, as well as in law school as an introductory class in these topics, if the professor were able to supplement it with legal materials.  (In fact, that might make an easy way to create something that does not now seem to exist for law school – a private equity-hedge fund text that covers both the business and legal aspects.  A fix for that might be to use this book, with a detailed supplement with examples and legal documents to illustrate the business descriptions in the text.)

I decided to stop teaching my introductory law school course on venture capital, private equity, and hedge funds, and instead return to the basic Business Associations class in the fall, after 7 or 8 years away from it.  I did so for two reasons – one, I find the whole private equity-hedge funds field too unsettled at the moment to teach with a lot of confidence that what I say now will reflect the industry in even just a couple of years, and I also think that at this moment, it has become so much just part of the deal industry that I can safely leave most of it to the M&A class, at least for now.  Second, though, I also wanted to return to BA, because my interests in business and finance law are shifting back towards the deeply embedded concepts of trust, agency, fiduciary duty, duty of care and duty of loyalty, and away from my long time focus on financial instruments and derivatives.

The latter goes to my scholarly interest in what I have called the “moral psychology of finance,” and somtimes called “virtue economics” – not in the sense of distributional justice in the economy, but instead the Aristotlean sense of “virtue ethics” and its intersection among practical reason, attitudes and rationality, and affective behavior and rational choice.  I am slowly re-reading Theory of Moral Sentiments, alongside Ian Simpson Ross’s exemplary Life of Adam Smith, a book I read with insufficient attention when it first appeared, but which I am re-reading with a great deal of care.

And finally, in this same broad area, I am also re-reading with intense care and considerable respect the papers in Ruth Chang’s 1997 volume, Incommensurability, Incomparability, and Practical Reason – with particular attention to Chang’s excellent introductory paper, and then Elizabeth Anderson’s contribution on practical reason (I’ll let the library locate me her later 2001 book, Making Comparisons Count, at over $100).  Partly this has to do with how this notion of virtue ethics intersects with practical reason – with every passing week, especially as I acquire and mostly skim an ever growing pile of books on the roots and solutions to the financial crisis and regulation, I am convinced that there is a lot more work to be done on the philosophy of economics, the philosophy of value and even the philosophy of valuation.  If I were advising a young person where to make a mark today, that would be a good starting point – where philosophy, economics, and intellectual history come together on these topics.

But, interestingly, the whole question of incommensurability and incomparability is at the center of a new paper I am completing on the vexed issue of proportionality in the laws of war.  Reading the examples in Chang’s book, I am much struck that the question of incommensurability and proportionality are far more real and unavoidable, as far as I can tell, in the ethics of war, and the classic calculation in the ethics of war between the demands of military necessity, on the one hand, and civilian harm, on the other.

My DU colleague Thomas Russell, who used to teach at the University of Texas Law school, has a written a paper, available on SSRN, which urges the University of Texas Law School to rename Simkins Hall, a law and graduate male student dormitory named for William Stewart Simkins. Simkins taught equity, contracts, procedure, and related topics at UT for three decades in the early 20th century. He was also a founder of the Ku Klux Klan in Florida, and every year at UT he gave a formal speech extolling the Klan.

Most of Russell’s paper concentrates on Simkins’ career at UT, as well as the 1954 decision (five weeks after Brown v. Board was announced) to name the dormitory after him. I was curious to learn more about Simkins had actually done with the Florida Klan, so I read Michael Newtown’s book The Invisible Empire: The Ku Klux Klan in Florida.

Continue reading ‘The Bernardine Dohrn of the early 20th century: The terrorist professor at U of Texas law school’ »

Boalt Hall Associate Dean Goodwin H. Liu has been nominated to serve on the 9th Circuit Court of Appeals. Some readers and Senators may be interested in his viewpoint on Second Amendment and other constitutional issues related to firearms policy. So here’s an excerpt from his article Separation Anxiety: Congress, The Courts, And The Constitution, 91 Georgetown Law Journal 439 (Jan. 2003). Liu’s co-author on the article is Senator Hillary Rodham Clinton. The article is based on a 2002 speech that Senator Clinton presented at Georgetown, sponsored by the American Constitution Society. Senator Clinton and Professor Liu criticize recent Supreme Court decisions declaring two federal gun control laws unconstitutional:

Footnote 72 includes the following:

The Supreme Court has seen fit to rein in some of the most activist lower-court decisions. . . . But additional cases continue to test the limits. See, e.g., United States v. Emerson, 270 F.3d 203, 227-29 (5th Cir. 2001) (agreeing with district court that Second Amendment confers an individual right to bear arms, notwithstanding contrary indications in United States v. Miller, 307 U.S. 174, 178 (1939)).

Instapundit points us in the direction of Joseph Bottum’s First Things blog post yesterday; also Althouse’s comment:

[W]hile I was [at NYU Law School] I saw posters for a lecture this afternoon by Eugene Volokh on the structure of slippery-slope arguments.  ... the posters for Volokh’s talk read, as I remember: “Founder of The Volokh Conspiracy blog and Gary T. Schwartz Professor of Law at UCLA.”

I wonder how the Schwartz family feels about that. Indeed, I wonder how UCLA law school feels. For that matter, I wonder how I feel. Since when has even a blog as interesting as the The Volokh Conspiracy trumped, for a law-school audience, a chair at a major law school and all the speaker’s academic publications?  A fascinating change in the culture of things.

Well, heck (and  not speaking for Eugene), I feel pretty darn good as a coat-tails participant at VC!

Is this the ‘Australian Sound’? My class is covering information asymmetries as transaction costs affecting pure Coase Theorem analysis, and we will soon come to classic information asymmetries found in agent – principal relationships.  I am thinking of using this as a pedagogical tool.

Consider Eric Roberts’ soliloquy on agent-principal relations, and the many ironies involved.  (Midway through – the focus here is not on the political discussion at the beginning, but the Australian sound debate midway through.)  Good teaching tool?  (Also, the Coke jingle by Tim Finn is surely one of the best around, and I’m amazed that the real Coke corporation never figured out it had a winner.)

[youtube]http://www.youtube.com/watch?v=ml0TURpHRuw[/youtube]

Congratulations to Larry Ribstein on his new book from OUP, The Rise of the Uncorporation.  I somehow got a comp copy in the mail, just finished reading it, and it is terrific.  A gracefully written essay on business law!(!!)  It manages to meld together law, history of business and legal forms in business, law and economics, and sociology into an exceptionally readable short book.  The discussion of the rise of the LLC is fascinating – I thought I knew all about it, as someone who teaches private equity and business associations, but boy, was I wrong.  The frame of social history in business form is a real contribution to a field that is oddly neglected by legal academics, the political and social theory of the corporation and the business assocation.

(My only complaint is that at $70 list, and $50 on Amazon, it is still a little pricey at least if, like me, you would want it for students and courses, like my private equity course, where it would be a fantastically useful and readable supplement.  I think OUP has missed on market pricing here.  I would love to require it as a secondary text in my private equity course, but at that price, I don’t think I can justify it.  Maybe when it’s out in paperback?  Or Kindle?)

Over at Opinio Juris, my co-blogger Kevin Jon Heller has a post on the German political theorist Carl Schmitt and the history behind his brush with a Nuremberg prosecution at the end of the Second World War.  It is drawn from research for Kevin’s book on the Nuremberg trials; given the interest that law professors and others have taken in Schmitt’s work over the years, I thought the VC audience would find it interesting.  Kevin has done very interesting research into this whole episode at Nuremberg:

I am particularly fascinated by how close Carl Schmitt, the political theorist who has influenced both the right and the left, came to being a defendant in one of the trials.  After Schmitt joined the Nazi Party in 1933, he had been appointed the head of the Union of National-Socialist Jurists and had written a number of pro-Nazi and anti-Semitic articles for the self-published German Jurists’ Newspaper.  Schmitt had a falling-out with the SS in 1937 and resigned his position as Reich Professional Group Leader, although he was able to keep his professorship at the University of Berlin because Goering protected him.

As I detail in the book, the OCC submitted three different trial programs to the US’s Occupational Military Government (OMGUS): on 14 March 1947, 20 May 1947, and 4 September 1947.  Schmittt was listed in the first program as a possible defendant in what the OCC called the “Propaganda and Education case.”  ...  At some point between 14 March and 20 May, when the OCC submitted its second trial program, Taylor’s staff decided not to prosecute Schmitt.  The second trial program no longer includes Schmitt as a possible defendant.

Kevin cites to an article in the social/critical theory journal Telos, of which I was long an editorial associate, along with the late great founding editor Paul Piccone, and an astonishingly long list of people you might not have expected to have done a stint with a New Left, then Post New Left, then sometimes left and sometimes right editorial board.  Fred Siegel, Seyla Benhabib, Jean Bethke Elshtain, Jean Cohen, Andrew Arato, David Pan, Joe McCahery Moishe Gonzales, it’s a really, really long list.  (Once in a while it has done important articles on critical jurisprudence – I am proud to say that as an editor in the 1980s, I commissioned a piece from Martha Minow, “Law Turning Outward,” that bears re-reading today, if only if were online!)  It is subscription only, dense, difficult, highly abstract and theoretical reading, within a sometimes alien critical theory tradition that is part homegrown and part European intellectual inheritance – and over the course of forty years, some of the best social theory in the world.

(One of these days I’ll talk about why social theory is both important and ripe for revival.  This, despite the general collapse of social theory into mere identity politics in the academy, thus driving people interested in rigorous thinking into more technically rigorous, but also more “surface” fields, such as economics, and the imitation of economics in other fields.  Maybe I’ll ask the current Telos editor, Russell Berman, if he’d like to take a crack at explaining why it matters.)

As to Schmitt, well, Telos was largely responsible for introducing him to the American academic community, translating and commenting on much of Schmitt’s output.  Schmitt continues to resonate today – the idea of emergency, after 9/11, for example, attracted much discussion.  In Europe, Schmitt overcame his past as a Nazi collaborator – rather, it seems never to have been much of an issue – and developed a very wide following across ideological boundaries, and considerable influence on the political theory of the Continent.  One reason I first read Schmitt was that it was clear to me I couldn’t understand Continental political theory, including Habermas and many others, without understanding Schmitt; he was a crucial part of the background discussion and intellectual assumptions over decades.

In the United States, the invocation of Schmitt always raises at least as a backdrop the question of Schmitt as a Nazi party member and full-on collaborator over important years.  My own view is that Schmitt was not a Nazi, far from it – in the ways in which Nazism was truly radical, Schmitt was a reactionary.  By all measures, a morally repellent character who saw where things were going in Germany and hopped aboard, and then saw where they were going and hopped off again.  But not a Nazi in his thinking or, really, sympathies despite, true, his long list of public intellectual credentials during historically crucial years.

The truth is, as an intellectual matter, I think Schmitt has long since run out of steam in terms of what he offers to American political and social theory.  This is possibly because I was intimately involved at Telos in the Schmitt revival from the beginning, felt like I absorbed what seemed important to me, and moved on by the 90s.  For example, the notion of emergency in Schmitt is both deeper but more alien to American political thought than, I suspect, many American theorists think – they really mean something that just is regular old consequentialism pushed hard, whereas for Schmitt, such notions are part of a far deeper and more committed system.  And although I once wrote a paper not long after 9/11 with a section carrying the very Schmittian title, “Criminals and Enemies,” what I meant by that had little to do with Schmitt and I was amazed at how quickly it was cast in Schmittian terms.  Far, far more important than Schmitt in contemporary American social theory – if there were such a thing outside the cul-de-sac of identity politics – is the revival of New Class theory in the American contempory context, and a theory of elites.