The Volokh Conspiracy

At CoOp, Lawrence Cunningham ponders how academics should respond when someone else incorrectly cites their work.

Wonderful as it is to be cited, being cited incorrectly poses a dilemma. If your article is referenced for a proposition it does not support, what should you do? Should you alert the author of the piece or the editor of the journal? Should you ignore it? Should you correct the reference the next time you publish on the topic?

It’s a good question, and something I’ve wondered about myself.

Shapiro and Pearse’s latest study of the most-cited law review articles has inspired a lot of blogging and commenting about the proper audience for legal scholarship. This topic arises from time to time, so I wanted to offer some thought on it.

In my view, what makes legal scholarship so interesting is that there are many different audiences for it. The field of law wears many hats. It is a profession, a subject of public debate, a means of governance, and an academic field connected to many other academic fields. Legal scholarship can legitimately focus on any or all of these roles, and therefore any of these audiences. It can choose an audience of practicing lawyers (the profession), judges or lawmakers (the means of governance), other academics in law (the academic field), academics in other fields (the connections to other fields), or even the public (the subject of public debate).

In my view, all of these audiences are perfectly legitimate. The goal of legal scholarship is to offer insight into the legal system, and it can do so in different ways. Some insights happen to be ones useful to practicing lawyers; others to academics; others to judges; others to the public. In my view, it’s short-sighted to say that any one of these audience is the “right” audience. It’s human nature to think that one should be the focus, I suppose. Everyone in the legal system thinks that they should be the audience: Judges want more scholarship relevant to judges, practicing lawyers want more scholarship relevant to practicing lawyers, etc. In my view, though, the field of law serves too many roles for that. The proper audience for a particular idea about the law depends on the idea. As long as the idea offers insights into the legal system, then authors should pick the audience most interested in that insight and address that audience.

I don’t mean to suggest that I necessarily approve of the current distribution of audience choices found in legal scholarship today. Being ambitious people, many legal academics focus on the audience that is most likely to advance their careers. Law professors are hired and promoted by other legal academics and spend their time hanging out in an academic environment, so they tend to care about impressing other academics first and other audiences second. This leads academics to undervalue other audiences, I think. Some professors will strain to make whatever points they can to try to impress an academic audience (especially at higher-ranked schools) even if it means overlooking much more important insights that might be of significant interest to other audiences. But that bias doesn’t change the broader point that all of these audiences are valuable ones.

Over at Inside the Law School Scam, Paul Campos reveals that he worked extensively with David Segal in helping Segal with his article on law professors and legal scholarship, and in particular with Segal’s estimate of the price students pay for legal scholarship. According to Campos, the basic methodology is to assume that 40% of law school operating costs pay the salaries of tenured or tenure-track professors, and that law professors spend 40% of their time writing articles. Multiplying the two suggests that 16% of law school operating costs pay for law review articles, which Segal estimates collectively at about $575 million.

I am no labor economist, and my comment is probably amateurish, but this strikes me as a puzzling way to calculate the costs of legal scholarship. It assumes that professors spend a fixed amount of time working and a fixed percentage of time writing articles. But that’s not the case, as professors spend a wildly varying amount of time working and a wildly varying amount of time writing. Some professors work very hard; some don’t. As a result, I would think that a better way to measure the costs of legal scholarship would be to compare the salaries of the professors who are active scholars with the salaries of the professors who are inactive scholars. (To determine the costs of X, compare the costs with X to the costs without X.) Consider an example. At a given school, it may be that a professor who spends 25 hours a week writing articles has earned merit increases in pay over time, and as a result is paid $40,000 more per year than a professor who doesn’t write articles at all. If so, that would suggest the costs of legal scholarship are somewhere in the ballpark of $30 an hour. That is, $40,000 additional pay for 1,300 hours of additional work.

This calculation has lots of problems, too, I realize. For example, it assumes that salary competition for active scholars has no effect on the salaries of inactive scholars. But at the very least I would think it’s a better gauge of the costs of legal scholarship than the methodology used by Campos that was followed in the Times article. Or so it seems to me, but then I’m about as far a way from my area of academic expertise as I can get. Comments are open, with corrections and criticisms particularly welcome.

UPDATE: Paul Campos responds, via e-mail: “You’ve misunderstood the calculation regarding the subsidizing of scholarship via tuition, probably because I stated it unclearly. While I estimate 16% of law school operating costs go toward subsidizing scholarship, the $575 million number isn’t 16% of operating costs – it’s 16% of collected tuition.”

Today’s NYT has a lengthy front-page article on legal education suggesting that a major problem with legal education is the failure to teach law students how to practice law. There is something to this complaint — some schools and some legal academics do relatively little to prepare their students for practice and there is much relatively worthless legal scholarship — but the article overstates the case, fails to identify workable alternatives, and makes various errors about legal education and scholarship along the way. For instance, the article identifies a philosophy paper, published in a philosophy journal, as an example of how legal scholarship is divorced from legal practice. The article simultaneously harps on the high cost of legal education and suggests more clinical education is a good way to help prepare law students to practice law. Yet the article makes no mention of the fact that clinical education is more expensive than traditional doctrine-oriented classes.

For more on the article, see these comments from Matt Bodie, Brian Leiter, Jason Mazzone, and Larry Ribstein. As Ribstein notes, if one really wants to understand what’s going in on legal education, the good and the bad, one’s better off reading legal bloggers than the NYT.

UPDATE: Leiter has a fuller response to the article here, and Orin comments above.

Co-blogger Orin Kerr links to Richard Fallon’s interesting article on the ethics of law professor amicus briefs.

Fallon argues that lawprofs are far too quick to sign amicus briefs that fit their ideological proclivities even if they aren’t really expert in the underlying legal issues and sometimes even if they don’t agree with the particular legal argument advanced by the brief. He further contends that legal scholars should only agree to sign briefs if they 1) have personal knowledge of the major factual claims and legal authorities the brief relies on, 2) agree with the brief’s reasoning (not just its bottom-line conclusions), and 3) the brief makes at least some reasonable effort to confront key opposing arguments and evidence.

I certainly agree that Fallon has identified a real problem. For what it’s worth, I have long refused to sign amicus briefs except in cases where I am an expert on the relevant subject and I endorse the brief’s reasoning as well as its conclusion. This is less stringent than Fallon’s standard of personal familiarity with all the major authorities relied on by the brief. But it does have real bite. For example, I have refused to sign several amicus briefs in Second Amendment cases because, despite my sympathy for the individual rights theory of the Amendment, I feel I’m not expert enough on the subject to opine on it to a court. In another major Supreme Court case that did touch on areas where I am an expert, I refused to sign a brief because, even though I agree with its bottom-line conclusion, one of its principal arguments relied on a theory of the Spending Clause that I had criticized in my scholarship.

Are all legal scholars ethically obliged to follow something like my rules or Fallon’s more restrictive ones? I am not sure that either of us has hit upon exactly the right approach. But I do think that we should apply tighter standards to our participation in these kinds of briefs than seems to be the norm today. Otherwise, as Fallon suggests, we end up using the intellectual authority we have based on scholarship within our fields of expertise to influence courts on issues about which we actually know very little.

An alternative norm is that a law professor might sign an amicus brief on an issue outside his expertise in such a way as to indicate that he’s doing so in his capacity as an ordinary citizen rather than as an academic expert. This approach is, I think, entirely ethical. Experts are not the only ones entitled to express opinions on legal issues, including in amicus briefs. But it does, of course, tend to defeat the main reason why people solicit law professors’ signatures on amicus briefs in the first place. A brief joined by “Professor Joe Blow, constitutional law scholar,” looks a lot more impressive than one signed by “Joe Blow, acting in his capacity as an ordinary citizen.”

Joni Hersch and Kip Viscusi have posted an interesting paper counting the number of law professors at the “top” schools that have Ph.D. degrees. Of course, “top” is in the eye of the beholder: Hersch and Viscusi divide schools into the “Top 13″ and then the “Top 26.” A few of the findings:

• At the “Top 13″ schools, 32.3% of faculty members have Ph.D.s. The most prevalent subject area for the Ph.D. was economics, with 9.2% of faculty members having an economics Ph.D. (see page 23)
• At the next tier of schools, those ranked 14 to 26, the proportion of Ph.Ds dropped: 20.4% have a Ph.D. of some kind, with 4.1% having a Ph.D. in economics (see page 23)
• Of the faculty at the Top 26 schools taken together, 979 have only a J.D. degree; 294 have a J.D. and a Ph.D; and 65 have only a Ph.D. and no J.D. (see page 21)

Thanks to Al Brophy at the Faculty Lounge for the link.

CQ‘s Kenneth Jost assesses “Chief Justice Roberts’ Ill-Informed Attack on Legal Scholarship” on his blog. As had been widely reported and discussed, Chief Justice Roberts was dismissive of the value of much legal scholarship at the Fourth Circuit judicial conference in June.

“Pick up a copy of any law review that you see,” Roberts said, “and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

As I told Jost for his post, I think there is something to Roberts’ critique. Much legal scholarship has little relevance to the bar or the bench. At the same time, it would be a mistake to believe that practical utility is the only measure of legal scholarship. Empirical analyses of judicial behavior may not help judges resolve cases, but they can certainly aide in our understanding of the legal system. Much scholarship also has value for its own sake. [UPDATE: Even if some scholarship has intrinsic value, that does not necessarily mean it should be financed by law student tuition.]

Somewhat ironically, as Jost notes, this past term featured several opinions that relied heavily upon legal scholarship for their analysis, including Wal-Mart v. Dukes which extensively cited the work of the late Richard Nagareda.

Somewhat coincidentally, two legal scholars have a draft empirical study of the Supreme Court’s use of legal scholarship over the past 61 years. It finds that the Supreme Court actually cites legal scholarship quite frequently — in approximately one third of its cases. As Jost notes, eight of the current Justices cited legal scholarship at least once in their opinions this past term. The one exception: Chief Justice Roberts.

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.

One of these days I will take the plunge and compose a “greatest influences” books list, as some of the other Conspirators have done.  I have hesitated in part because my list would not tend to contain works of monumental ideas, but instead plays, works of fiction, poetry, and fragments that are not always  blockbusters in the history of ideas, as well major works of the left.

Part of this is generational.  I intellectually came of age in a period in which both Marx and Freud were still considered the giants, and in which the humanities had not yet collapsed into its current state of identity politics and post-modernist irrelevance; literature was still believed to shed light on something called the human condition – though these were by then on the way out.  Rational choice economics had not yet won over the academy, partly through its own intellectual strengths but also from being the ‘last man standing’ as the humanities sawed off the intellectual branch, as it were, it was sitting on.  I came from the peculiar position of what Larry Solum once called my “left Burkeanism” with a good bit of American libertarianism thrown in.

But it was not until quite recently that I read a long list of thinkers on the libertarian or conservative end of things – part of this was that I studied philosophy, not economics, and many of the leading thinkers pointed to by other Conspirators such as Hayek or Friedman did not figure into my intellectual education.  I am the classic case of one of the tangential but not unshrewd definitions sometimes given of a neoconservative – a leftwinger who has moved right.  For many of those “neoconservatives,”  including me, the core intellectual influences from early on come, not from the right or even centrist liberalism, but from the intellectual left.  Marx, the left Hegel, a long list of left European intellectuals such as Gramsci, etc., etc.  I am intellectually as much a product of the melding of a very traditional education in Anglo-American analytic philosophy of a certain period – Wittgenstein, Philippa Foot, Rogers Albritton – and the European critical theory and intellectual history of the great critical theory journal Telos.

My intellectual influences definitely included, however, the great figures of the British traditions in philosophy and political theory, Locke, Hume, Bentham, Mill, etc., and, probably at the top of my list, Hobbes.  Very much in an analytic philosophy tradition rather than a historical one; seeing these ancient political essays as political theory to be treated a-historically rather than as intellectual history.  I studied Locke’s Second Treatise as a pure system of intellectual propositions, and only much later gained an appreciation of the way in which Locke was deeply engaged in the political arguments of his day.  Leviathan was studied – I’m glancing at my first Leviathan text and my undergraduate marginalia (ouch, ouch ouch) – purely as a system of rational propositions, with no attention whatsoever to the religious wars of the day.

So, given the importance of Hobbes to my own intellectual formations, I welcome the notice and review in yesterday’s Wall Street Journal of a new Yale critical edition of the Leviathan, edited by Ian Shapiro, and aimed at a general rather than academically specialized audience.  It has four interpretive essays, all of which receive good notices from the WSJ reviewer, the historian and Hobbes scholar Jeffrey Collins.  The WSJ review essay is a fine piece of writing on its own, and raises the question, not just of Hobbes’ enduring importance, but why he has particularly been of interest in the past few years.  Collins puts the issue this way:

The question is why Hobbes’s account has enjoyed such popularity in recent decades. The likes of John Locke and James Madison long ago demonstrated the limits of Hobbes’s raw statism. But many thinkers and political actors, lately, seem to prefer Hobbes’s vision of society to theirs. Why should this be so?

One might point to several reasons. Hobbes’s snide irreligion, once the main complaint against him, may now commend him to those who perpetually fear the supposed return of theocracy. His tendency to portray humans as appetitive beasts flatters our present eagerness to explain every aspect of human conduct in biological terms. Hobbes was also acutely suspicious of democracy. He considered it a breeder of faction. When pundits such as Thomas Friedman decry “broken government” and fawn over China’s “enlightened” response to global warming, one wonders if the Hobbesian within the liberal breast is stirring.

Continue reading ‘Leviathan’ »

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’ »

Five new podcasts from the Independence Institute’s iVoices.org:

1. The University of Montana’s Rob Natelson on the Executive Vesting Clause.  Natelson argues that the first clause of Article II grants the President no additional powers–contrary to the theory that the clause gives the President almost all the powers formerly possessed by English Kings. 36 minutes.

2. The Privileges or Immunities Clause and what it means for the Second Amendment. The Cato Institute’s Ilya Shapiro discusses his new law review article. 29 minutes. (The final version of the Shapiro-Blackman article, “Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States,” was just uploaded to SSRN today.)

3. What Miller Meant. Oklahoma City University’s Michael O’Shea explains  the history and multiple meanings of United States v. Miller. 65 minutes. 

4. The International Hunter Education Association. IHEA’s Wayne East describes the IHEA’s good works in teaching safety and responsibility. And how you can take most of a hunter safety course on-line. 26 minutes.  

5. Weld County, Colorado, Sheriff John Cooke provides law enforcement perspective on three bills in the Colorado legislature: removing the Governor’s power to prohibit gun sales, transfers, or transportation during an emergency; a declaration that the federal government cannot apply federal gun control laws to guns manufactured in Colorado and which do not leave the state of Colorado (background checks on sales would still be required pursuant to Colorado law); and a bill to state that business owners on their own property have the same self-defense rights as do persons in their own homes. All three bills were supported by the County Sheriffs of Colorado. The first two bills were killed on party-line votes in a state Senate committee; the last bill is awaiting a committee vote in the House.

The first four are interviews I conducted last week. The last interview is conducted by Independence Institute’s Amy Oliver.

Yesterday, I was editing the Introduction to my “Rehabilitating Lochner” book, and I needed a word to fill in the following sentence: “Lochner itself is now considered the ___ of the liberty of contract cases, though the opinion has not always attracted such disproportionate attention.” After some thought, I came up with the word “apotheosis.” I thought it looked good, and, given that this was an early sentence in the book, made me sound erudite.

But then I remembered that I’m trying to write for the readers’ benefit, not to sound smart or well-educated. (William F. Buckley, who was an excellent writer but often used obscure words, was trying to sound smart, in part to counter the image that conservatives are ignorant.) And I noted that even though I have a pretty good vocabulary, I had to look up apotheosis to make sure I was using it correctly, which likely meant that many of my readers would be unsure of the word’s meaning. So I deleted apotheosis, and replaced it with “epitome,” a much more common word. The sentence may sound less erudite, but it’s much more comprehensible.

UPDATE: On further reflection, I changed the sentence to “Lochner has come to exemplify the liberty of contract cases, though the opinion has not always attracted such disproportionate attention.”

A while back, a prominent law review asked me to review a book on a topic of interest to me.  I readily agreed, on condition that the review be relatively short.  When it came time to sit down and read the book, however, I found it extremely difficult to understand; the book was loaded with unnecessary jargon, long, run-on sentences, and big, obscure words where short, simple ones would do fine.  I found myself sometimes reading a sentence five times to try to figure out what the author was trying to say.

After several hours of this, I gave up.  I sent an email to the law review editors to the effect that while I was loath to go back on my commitment to review the book, I’d rather be boiled in hot oil than spend my time giving this book the attention it needed to be ready to start writing a review.

I won’t claim to be the best writer in the world, but I do try hard to make all of my academic writing readable, even by non-academics.  I’m not sure that this is always a career benefit–some student law review editors, the basic scholarly gatekeepers of our profession, likely confuse turgid, elliptical, and jargon-filled prose with erudition.  But, as my anecdote hopefully shows, going the opposite route also has its costs.

UPDATE: All this bring to mind the following from Gilbert and Sullivan’s Patience:

If you’re anxious for to shine, in the high aesthetic line as a man of culture rare,

You must get up all the germs of the transcendental terms, and plant them everywhere.

You must lie upon the daisies and discourse in novel phrases of your complicated state of mind,

The meaning doesn’t matter if it’s only idle chatter of a transcendental kind.

And everyone will say, As you walk your mystic way,

If this young man expresses himself in terms too deep for me,

Why, what a very singularly deep young man this deep young man must be.

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.