Villanova symposium seeks to rejuvenate 50-year-old U.S. FOIA

Panel 5 on global and comparative perspectives: moderater Fran Burns, professor of practice in the Department of Public Administration at Villanova University; Anamarija Musa, commissioner of information for the Republic of Croatia; Suzanne J. Piotrowski, associate professor in the School of Public Affairs and Administration, Rutgers University-Newark; and the smiling village idiot.  Photo graciously provided by Catherine E. Wilson, associate professor and chair of the Department of Public Administration at Villanova University.

The week before last, the Villanova Law Review at the Villanova University Charles Widger School of Law hosted the Norman J. Shachoy Symposium on Fifty Years Under the Freedom of Information Act, 1967-2017.  I was privileged to participate and owe a debt of gratitude to Villanova for extraordinary hospitality, especially Law Review coordinators Jourdan Simko and Valerie Caras (current masthead); faculty coordinator Professor Tuan Samahon, himself an accomplished teacher and scholar in constitutional law and government transparency and accountability; and Arthur J. Kania Dean and Professor of Law Mark C. Alexander.

Persons with a broad range and wealth of experience and perspective on the federal FOIA participated in the symposium, offering a mind-boggling array of insights into the state of our 50-year-old transparency regime and its prospects for reform.  Professor Samahon aptly opened the conference by asking participants to think about how the course of history might have been different had transparency been the rule of the day before 1967, say, at the time of the Bay of Pigs or the Gulf of Tonkin.  What far-reaching impact would there be of transformed American involvement in those events?  The question points to historic mistakes and lives that might have been saved, yes; but also to unknown alternatives and dangers unwittingly averted.

The U.S. FOIA was among the first of its kind in the modern world and ground-breaking in its scope.  Professor Samahon later in the afternoon, asking a question of my own panel, pointed to the startling success of the FOIA, lest we take it for granted: a beacon of transparency and accountability in the world, the operationalization of an essential condition for a successful democracy, and a feature of government that is sorely wanting in so many countries today, with real human suffering as the price of opacity and corruption.

At the same time, program participants seemed in universal agreement:  Our FOIA is showing its age.  More dynamic transparency instruments in foreign and international law—incubated in the so-called “second-generation” constitutional and human rights systems of Western Europe and emerging democracies around the world—have made vast strides in government transparency and accountability, leaving our FOIA looking, to put it mildly, rather tired and worn around the edges.  Speaking a cutting truth, Judicial Watch attorney Michael Bekesha said in an afternoon panel that to really make FOIA work, the current statute, 5 U.S.C. § 552, needs to be “blown up,” and a new law constructed in its place.  My own talk looked to innovations in FOI, or "access to information" (ATI) in Africa for inspiration.

Villanova video-recorded the day-long program, and the Law Review plans a symposium issue with contributions from the panelists, to be published later next year.  So stay tuned for more on this important subject.  Meanwhile, I will paste below the program, to whet the appetite.

The Villanova Law Review Norman J. Shachoy Symposium:

Fifty Years Under the Freedom of Information Act, 1967-2017

Friday, October 20, 2017, 9 a.m. to 4:30 p.m.

Welcome

• Mark C. Alexander, Arthur J. Kania Dean and Professor of Law, Villanova University Charles Widger School of Law
• Tuan Samahon, Professor of Law, Villanova University Charles Widger School of Law

Panel 1: The “On the Ground” Operation of FOIA

• Susan Long, Associate Professor of Managerial Statistics and Director of the TRAC Research Center, Whitman School of Management, Syracuse University
• Margaret Kwoka, Associate Professor, University of Denver Sturm College of Law
• Moderated by Suzanne J. Piotrowski, Associate Professor, School of Public Affairs and Administration, Rutgers University-Newark

Panel 2: The Press, the Academy, and FOIA

• David McGraw, Deputy General Counsel, The New York Times
• Jason Leopold, Senior Investigative Reporter, BuzzFeed News
• David M. Barrett, Professor of Political Science, Villanova University
• Moderated by Terry Mutchler, Mutchler Lyons

Panel 3: Congressional Oversight of the Executive Branch

• Katy Rother, Senior Counsel, Committee on Oversight and Government Reform, U.S. House of Representatives
• Aram A. Gavoor, Visiting Associate Professor of Law, The George Washington University Law School
• Moderated by Catherine J. Lanctot, Professor of Law, Villanova University Charles Widger School of Law

Panel 4: Resolving FOIA Disputes

• Alina Semo, Director, Office of Government Information Services, National Archives and Records Administration
• Marcia Berman, Assistant Branch Director, Civil Division, Federal Programs Branch, U.S. Department of Justice
• Michael Bekesha, Attorney, Judicial Watch, Inc.
• Moderated by Margaret Kwoka, Associate Professor, University of Denver Sturm College of Law

Panel 5: State and Global Comparative Perspectives

• Anamarija Musa, Commissioner of Information, Republic of Croatia
• Suzanne J. Piotrowski, Associate Professor, School of Public Affairs and Administration, Rutgers University-Newark
• Richard J. Peltz-Steele, Professor of Law, University of Massachusetts School of Law
• Moderated by Fran Burns, Professor of Practice, Villanova University

Policy proposal threatens academic freedom at University of Arkansas

Watchdogs in my former home state of Arkansas have alerted me to a major proposed change to University of Arkansas Board of Trustees tenure policy that threatens faculty academic freedom and tenure.  I wrote on this subject and presented at an AAUP conference some time ago; see "Penumbral Academic Freedom" at SSRN.  I happen to have just started serving here at UMass Dartmouth on a campus-wide committee studying policy related to faculty privileges and responsibilities.  I plan in time to write more about my experience here at UMD.  Meanwhile, though, what is happening at Arkansas, just one instance amid an alarming national trend, needs wider attention.  Simply put, an attack on academic freedom anywhere is an attack on academic freedom everywhere.

As is widely known both in and outside the academy, this is not a happy time for freedom of expression on the university campus.  (See this New York Times op-ed from yesterday, by University of Oregon President Michael Schill.)  Professor Catherine Ross at GW Law wrote an excellent piece recently for 66:4 Journal of Legal Education on "Assaultive Words and Constitutional Norms," explaining the clash between First Amendment freedom of speech and lately abundant and popular efforts to regulate speech that is normatively objectionable, such as hate speech.  The problem extends to our complicated American relationship with whistleblowers: compare the Obama Administration's "war on whistleblowers" (Guardian) with the later pardoning of Chelsea Manning.

In the academic sphere, the problem has played out in attack on faculty and faculty privileges, such as tenure, that are designed to preserve the university as "the quintessential marketplace of ideas."  The corporatization of the university and the infantilization of faculty have been documented and described, for example by Johns Hopkins Professor Benjamin Ginsberg in his 2013 book, The Fall of the Faculty (Amazon).

My colleague Professor Joshua Silverstein at the University of Arkansas Little Rock Law School wrote an excellent missive to his faculty on the proposed changes to Arkansas board policy.  He explained how the policy changes conflict with established AAUP norms.  Especially problematic is a provision that would allow termination of faculty for "unwillingness to work productively with colleagues."  As Professor Silverstein aptly observes, this is administrator-speak for what the AAUP long ago described and condemned as a "collegiality" requirement.

That provision would allow the termination of a faculty member who ignores instruction to teach the politically correct or anti-intellectual version of a subject in the classroom; who refuses to give passing grades for failing performance, when campus bean counters fear losing the student's tuition dollars; or who objects to the elimination of disciplines such as philosophy and foreign language as the university looks to budget according to revenue potential rather than academic mission.  In the corporatized university, there is no room for faculty governance and less for freedom of thought.  Faculty are expected to toe the line and make the widgets.  That's a frightening vision of the university, especially when one contemplates the impact on young adults of modeling automatous obedience in a purported democracy.

Professor Silverstein has given me permission to excerpt his missive, below.  His redline-and-comment version of the board policy I have parked here.  I note that Silverstein had to create the redline version himself; only a clean revision was distributed.  The redline version, he warns, might have mistakes that are artifacts of conversion from PDF.  The clean revision proposal is here.  The current rule can be found here.  Silverstein disclaims that he only received the proposal last weekend, so his review is not comprehensive.  Also, these comments pertain only to changes to the board policy on tenure.  Other proposed changes would affect employment periods and distinguished professorships.

The academy must stand together to repel attacks on tenure.  And we in the legal academy have an especial responsibility to heed the call.

--

Colleagues:

Last week, the faculty senate received proposed changes to the UA System rules regarding tenure (Board of Trustees Policy 405.1), employment periods (Policy 405.4), and university and distinguished professorships (Policy 470.1).   This email concerns the proposed changes to policy 405.1.  As the subject of my email indicates, I believe that the proposed changes are a grave threat to tenure and academic freedom within the entire UA System.  Most importantly, the revisions dramatically expand the grounds justifying termination for cause.  They do so by (1) effectively establishing collegiality as a basis for termination, and (2) permitting dismissal after a single unsatisfactory rating in an annual review.  In addition, the revisions critically weaken the procedural protections available at university committee hearings regarding terminations.  If these changes are adopted, the damage to the University of Arkansas will be wide-ranging and likely permanent.  It is thus imperative that we speak out about the threat.

*  *  *

1.  The University may not retroactively alter tenure rights.

In my opinion, the proposed changes to 405.1 cannot retroactively alter the rights granted under existing tenure contracts.  Well-established principles of contract law and constitutional law firmly support this conclusion.  Thus, the changes to 405.1, if adopted, will only apply to faculty not yet tenured.  However, I have not conducted exhaustive legal research on this point.  In addition, while nothing in the proposal suggests that the university believes it can—or intends to—apply the changes retroactively, an express admission on these points is the only way we can be sure of the thinking of the Board of Trustees and the rest of the central administration.

Even if the changes are applied solely in a prospective manner, that only modestly reduces the damage that the new rules will cause.  For example, all new hires will be subject to the revised standards.  That is a serious problem.  The changes will make it more difficult to hire the best entry-level and lateral faculty.  And those who are hired will possess weakened tenure protections and more limited academic freedom, both of which will result in numerous harms to teaching, research, and service within the UA system.

2.  The proposal dramatically expands the scope of what constitutes “cause” for purposes of terminating faculty. 

a.  Introduction.

Let me start by highlighting the critical textual changes to the definition of “cause.”  The current definition is set forth in section I of Policy 405.1 (which is on page 2 of the policy):

“Cause” is defined as conduct which demonstrates that the faculty member lacks the ability or willingness to perform his or her duties or to fulfill his or her responsibilities to the University; examples of such conduct include (but are not limited to) incompetence, neglect of duty, intellectual dishonesty, and moral turpitude.

Compare that to the revised definition, set out in section I of the proposal on pages 1-2 (and on pages 1-2 of my redline):

Cause - Cause is defined as conduct that demonstrates the faculty member lacks the willingness or ability to perform duties or responsibilities to the University. A faculty member may be disciplined, or dismissed, for cause on grounds including but not limited to unsatisfactory performance or (1) professional dishonesty or plagiarism; (2) discrimination, including harassment or retaliation, prohibited by law or university policy; (3) unethical conduct related to fitness to engage in teaching, research, service/outreach and/or administration, or otherwise related to the faculty member’s employment or public employment; (4) misuse of appointment or authority to exploit others; (5) theft or intentional misuse of property; (6) incompetence, job abandonment, pattern of disruptive conduct or unwillingness to work productively with colleagues, or refusal to perform reasonable duties; (7) threats or acts of violence or retaliatory conduct; or (8) violation of University policy, or state or federal law, substantially related to performance of faculty responsibilities or fitness to serve the University

I have highlighted two pieces of the revised definition.  First, I highlighted the addition of “unsatisfactory performance” near the beginning of the definition.  Second, I highlighted certain language in item 6.  Section 2.b. of this email addresses item 6.  Section 2.c. of this email addresses the insertion of “unsatisfactory performance.”  There is additional language in the proposal relating to the two pieces of the definition that I highlighted.  That language is discussed in the sections below corresponding to the highlighted language.

b.  Establishing collegiality as a basis for termination dramatically reduces tenure protections and academic freedom.

The language I highlighted in item 6 is very dangerous.  “Pattern of disruptive conduct” is a deeply subjective standard.  “Unwillingness to work productively with colleagues” is worse.  These standards create a serious potential for abuse.  It takes little imagination to see how the standards could be employed to stifle academic freedom by dismissing or otherwise punishing tenured faculty on the pretextual grounds that they are “disruptive” and/or “uncollegial.”  Note that including a collegiality requirement in tenure standards violates AAUP principles.  This change would thus move the UA System out of compliance with the AAUP.  See On Collegiality as a Criterion for Faculty Evaluation at page 1 (and throughout)), available here.

The importance of the changes in item (6) is highlighted by the fact that the “work productively” collegiality standard is repeated in the section of 405.1 that concerns academic freedom.  The proposal amends section IV.A.14.c, on page 10 by inserting the following language: “Faculty are expected to work productively with colleagues in carrying out the mission of the University.”  By adding this to the academic freedom section, it is clear that the drafters intend the language to circumscribe the scope of academic freedom everywhere within the University of Arkansas.

c.  The proposal permits termination after a single unsatisfactory rating in an annual review; this also dramatically reduces tenure protection and academic freedom.

Under the current standard, termination for performance issues may result only from “incompetence,” “neglect of duty,” or the like.  Under the proposed standard, a mere finding of “unsatisfactory performance” in a single annual review is sufficient grounds to warrant termination.  That is a profound change.

To elaborate, the proposal inserts new standards regarding annual reviews in section V.A.9.  Here is the pertinent language:

Any campus procedures regarding post-tenure review shall not allow greater than one academic year, with active cooperation from the faculty member, for an overall unsatisfactory performance rating to be substantially remedied prior to a recommendation of dismissal on the basis of unsatisfactory performance. In other words, if a faculty member’s overall performance is evaluated as unsatisfactory for an academic year, any improvement plans or other remedial measures are expected to result in a satisfactory evaluation by the end of the following academic year; if not, the faculty member may be issued a notice of dismissal on twelve months’ notice as provided for in this policy. Again, such period of time for remediation assumes the active cooperation and engagement of the faculty member; otherwise, a shortened timeframe may be utilized.

On the surface, this provision appears to provide that termination is only permissible after two unsatisfactory ratings.  In the first yellow block, the provision states that “any improvement plans or other remedial measures are expected to result in a satisfactory evaluation by the end of the following academic year; if not, the faculty member may be issued a notice of dismissal . . .”  (Emphasis added.)  That suggests that two unsatisfactory ratings are required.  But now consider the last sentence of the language I quoted, also highlighted in yellow: “Again, such period of time for remediation assumes the active cooperation and engagement of the faculty member; otherwise, a shortened timeframe may be utilized.”  (Emphasis added.)  This means that if the university, in its subjective judgment, determines that a person is not being sufficiently “cooperative” or “engaged” in the remediation plan, termination is possible well before the end of the first academic year after the unsatisfactory rating.  In short, a single unsatisfactory rating, combined with a judgment of insufficient “cooperation” or “engagement,” can result in termination. 

That is a dramatic change from the existing rule.  To repeat, the current standard requires “incompetence,” “neglect of duty,” or something comparable.  Those words denote performance that is considerably worse than suggested by a mere finding of “unsatisfactory.”  Indeed, “incompetence” and “neglect of duty” are much worse than multiple findings of unsatisfactory performance.

This change also violates AAUP standards.  For example, in a report regarding Greenville College in Illinois, the AAUP said this:

As the writers of the 1958 Statement on Procedural Standards had assumed, most institutions have indeed developed their own standards of what constitutes adequate cause for dismissal.  They most commonly tend to be “incompetence,” “professional misconduct,” “gross neglect,” and the like.  In comparison, Greenville’s standard of “unsatisfactory service” not only is nebulous and subjective, but also sets too low a bar for adequate protection of tenure and academic freedom . . . .

Report, Academic Freedom and Tenure: Greenville College (Illinois) at page 86, available here.

Likewise, the AAUP’s formal statement on post-tenure review explains that the appropriate standard for “cause” is “incompetence, malfeasance, or failure to perform . . . duties.”  Post-tenure Review: An AAUP Response at page 230, available here.  The report proceeds to explain that if “the standard of dismissal is shifted from ‘incompetence’ to ‘unsatisfactory performance,’ . . . then tenured faculty must recurrently ‘satisfy’ administrative officers rather than the basic standards of their profession,” which fatally undermines academic freedom.  See id.

As these AAUP documents make clear, the proposed change of the cause standard from “incompetence” and “neglect of duty” to mere “unsatisfactory” performance is fundamentally inconsistent with core principles of academic freedom.  And that would be true even if the proposal required multiple findings of unsatisfactory performance.  As I explained, however, a single finding of unsatisfactory performance can justify termination under the proposal (when combined with a finding that the faculty member is not sufficiently cooperative or engaged in remediation of the unsatisfactory performance).

3.  The proposal critically weakens procedural protections.

Section IV.C. of 405.1 concerns the procedures for dismissing a tenured or tenure-track faculty member.  Part of the termination process is a hearing before an impartial committee.  The proposal revises section IV.C.5., on page 14, to strip away the committee’s ability to grant procedural protections equivalent to those afforded in a court of law.  See comment j7 on page 12 of the redline, which explains this point in more detail.

* * *

Note that the redline contains a few other substantive comments.

As I said, this proposal is a striking attack on academic freedom and tenure.  It is thus imperative that we make our voices heard.

Josh

Joshua M. Silverstein

Professor of Law

University of Arkansas at Little Rock

William H. Bowen School of Law

1201 McMath Ave.

Little Rock, AR 72202-5142

Decedent's reps fight Yahoo! for email access, beat federal preemption argument in state high court

The Massachusetts Supreme Judicial Court has rendered a thought-provoking judgment about postmortem access to a decedent's Yahoo! e-mail account.  The case is Ajemian v. Yahoo!, Inc., No. SJC-12237, Oct. 16, 2017, per Justice Lenk.  The SJC nabbed the case sua sponte from Mass. App.  The case will be available soon from Mass.gov new slip opinions.

Yahoo! denied access to the personal representatives of the decedent's estate on two grounds: (1) that access was prohibited by the preemptive, federal Stored Communications Act (SCA) (1986), essentially a sectoral privacy statute, and (2) that the representatives' common law property interest in digital assets was superseded by Yahoo! terms of service (ToS).

The trial court ruled in favor of Yahoo! on the SCA grounds and opined only indeterminately on the ToS argument.  The SJC reversed and remanded.  The Court employed a presumption against implied preemption to find the representatives outside the "lawful consent" terms of statutory exemption in the SCA, which would require actual owner consent.  The SCA therefore provided no barrier to access under state law on these facts. This is an important precedent in state construction of federal law to limit the reach of the SCA.

Tantalizingly on the ToS front, the trial court held that it could not opine definitively on Yahoo!'s position because of unresolved questions about the formation and enforceability of the ToS as contract.  The SJC reiterated that the trial judge had not established whether a "meeting of the minds" had occurred as purported prerequisite to contract.  That's a compelling observation in our world, awash as it is with click-wrap adhesion agreements being held enforceable by the courts without serious scrutiny.  "Meeting of the minds," however much a staple of 1L Contracts, has been pretty much read out of the analysis in today's boilerplate world.

The case will be one to watch if it generates another appeal, but I'll be surprised if on these facts, Yahoo! goes to the mat if that means risking the ToS on the record.

Can ‘Star Trek’ put the U back in –topia?

This weekend will see the premiere of the newest entrant in the Star Trek franchise, CBS’s Star Trek: Discovery (trailer).  Notwithstanding CBS’s dubious bid to build a new model for content delivery in CBS All Access—creative initiatives crushed by commercial imperatives is a tradition in Star Trek history—Discovery marks a worthwhile moment to take stock of where we are now as a global village, 51 years after the premiere of Gene Roddenberry’s groundbreaking Star Trek, now “The Original Series.”

Roddenberry’s vision was a utopian one.  It seems almost cliché now to recount the novel “enterprise” of a multi-national crew spreading humanist idealism throughout the galaxy.  Despite its military trappings, Star Fleet was tasked with exploration of the final frontier on behalf of a United Federation of Planets (UFP).  Star Trek represented all the good parts of cultural imperialism and mitigated all the bad with deep, moral self-reflection.

Martin-Green
(CC 2.0 Gage Skidmore 2016 via flickr)

It looks like Discovery will resonate in the Roddenberry tradition.  The series, which might vary perspective and setting across seasonal sub-arcs, opens with a strong black female lead in Sonequa Martin-Green (The Walking Dead’s Sasha) and a female captain of color in Michelle Yeoh (Crouching Tiger’s Yu).  Discovery takes place after humankind’s first forays into deep space, which were depicted a decade ago by Star Trek: Enterprise, but still before the adventures of James T. Kirk and crew in the 1960s Original Series and the current movie-reboot series.  The nascent UFP is in a cold war with the Klingon Empire.  This fictional era and the name of the starring ship, U.S.S. Discovery, suggest fealty to Roddenberry’s vision of a “wagon train to the stars.” 

But can that vision get traction in today’s world?

However much our multi-platform electronic environment has served up an embarrassing surfeit of science fiction, we remain awash in dystopian imaginings.  Disclaimer one, yes, I realize that dystopian fiction is not new; even 1984 dates to 1949.  Disclaimer two, let me be no hypocrite; I have devoured it all, from The Hunger Games to The Handmaid’s Tale, having just finished the latter’s s1 yesterday.  (Nick is going to save her, right? right?!)  Yet many a commentator has observed the peculiar resonance of dystopian fiction today, in a world in which hunger and poverty persist, the wealth gap widens, and our standard of living and expectation of leisure seem after all not to have skyrocketed in consonance with technological ingenuity.

There was a time after the Berlin Wall fell, in the 1990s amid perestroika and glasnost, that it seemed like we might be on an upward trajectory.  The turn of the century brought with it a cautious optimism.  Maybe the era of world war and nuclear nightmare could be put to bed, and humankind would rise from those ashes and turn at last to the business of life on, and beyond, earth.

Then 9-11 happened.  The world went back to war, and we’re still in it.  Our American streets fill with protests fueled by racial division.  An unprecedented humanitarian crisis tears at the seams of European socio-economic union.  The septuagenarian United Nations—real-world analog of the thinly veiled UFP—seems impotent to stop a threatened nuclear detonation in the atmosphere.  And oh yeah, the ice caps: they’re melting.

Inevitable dystopia seems the apt model to envision our future on earth.  Wherefore art thou, Discovery, into our world of social and political fracture?  Can we even recognize ourselves in utopian science fiction?

It bears remembering that the world to which Roddenberry first introduced Star Trek was itself no utopia.  The Original Series tendered commentary that might seem trite now—e.g., TV’s first interracial kiss between Kirk (Shatner) and bridge officer Uhuru (Nichelle Nichols), the “black on the ‘right’ side” racism of Let That Be Your Last Battlefield, the futile primitive conflict of A Private Little War.  But that commentary was sophisticated and controversial in its time.  Star Trek’s very proffer of earthbound east and west in common pursuit of human survival and space exploration was a calculated critique of Jim Crow, the space race, Vietnam, and the Cold War.  Star Trek’s utopian vision was launched amid the civil rights fire that forged our second national reconstruction.

So maybe now is exactly the time for Star Trek.  Maybe we need utopia now more than ever, precisely because it is so unfamiliar.

As Star Trek turned 50 in 2016, Sir Thomas More’s enigmatic Utopia turned 500.  More’s Utopia was a social critique, not a social blueprint.  Critique always has been the raison d’être of science fiction.  There is no utility in only imagining the future.  The endgame is to hold up that parallel world next to your own, to see how the two compare.

For Star Trek, the final frontier is not space.  The final frontier—the discovery—always has been us.

Video resources for teaching theory of intent in tort law

I've created some new video resources to help in teaching common law torts.  These videos all relate to theoretical points in the introductory unit on intent.  The videos are available on my public YouTube channel.  They can be used in any torts course, though they track Shapo & Peltz-Steele, Tort and Injury Law (3d ed. 2006) (CAP, FB, Amazon), and Steele's Straightforward Torts (free from SSRN).

Study: Intent in U.S. Tort Law.  This video offers a study in the theory of intent in U.S. tort law.  A movie clip is analyzed to demonstrate analysis of intent in battery.  Running time: 8:50.

Explainer: "Pound Progression" in U.S. Tort Law.  This video briefly explains the three steps Dean Roscoe Pound observed in the development of civil justice systems.  Running time: 2:19.

Explainer: Eggshell Plaintiff Rule in U.S. Tort Law.  This video briefly explain the operation of the eggshell plaintiff rule, as well as the reason for its inapplicability to intentional infliction of emotional distress.  Cited is Vosburg v. Putney (Wis. 1891).  Running time: 2:36.

Explainer: Culpability Spectrum in U.S. Tort Law (Pound to Intent).  This video examines the culpability spectrum in U.S. tort law with an emphasis on variations on intent.  The video further explains how culpability can be varied to compensate for the uncertainty implications of the Pound progression.  Running time: 3:44.

Justice Oliver Wendell Holmes, Jr., was kind of a pompous ass

Justice Oliver Wendell Holmes, Jr. (FJC), “the great dissenter,” was kind of a pompous ass.  That probably should not have surprised me, given his birthright in Massachusetts aristocracy.  And that probably should not have been my chief take-away from the book, The Great Dissent (2013) (Amazon; Macmillan), the impressive accomplishment of author and law professor Thomas Healy at Seton Hall Law.  Somehow I am stubbornly surprised every time a person I admire turns out to be no more than human.

The subtitle of The Great Dissent reads, How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America.  That refers to a monumental shift, now legendary in constitutional law, that seemed to have occurred in Holmes’s thinking over the summer of 1919.  In the spring of 1919, Holmes and the Court majority were eagerly doing their part to condemn targets of the First Red Scare, such as labor agitator Eugene Debs, for criminal violation of the post-WWI Espionage Act.  Then in fall 1919, Holmes suddenly turns up in dissent to further convictions.  He used almost the same language, the same rules that he had authored and joined earlier in the year.  But in the fall, with not even a wink at the reader, he seemed to think the words had acquired entirely different meaning.

Partnering with Justice Louis Brandeis, Holmes’s powerful dissents in 1919 and following years outlined a philosophy of free speech that ultimately passed the test of time.  Holmes veritably gushed ideas, such as “clear and present danger” and “marketplace of ideas,” that became benchmark norms in 20th-century civil rights law—not only in the United States but in democracies around the world.

So what happened to Holmes in the summer of 1919?  To answer that question, Healy takes the reader on a spellbinding journey into the social and political dynamics of America’s intellectual class—and last survivors of the Civil War—as they struggled to maneuver the country in a new world order shaped by the ravages of an unprecedented war.

There is an apocryphal answer to the 1919 question.  The free speech analysis that Holmes and Brandeis worked out after 1919 bore a striking resemblance to an earlier proposition advanced by Judge Billings Learned Hand as trial judge in a 1917 case in federal court in New York.  Hand and Holmes knew one another, if not well, and their contrasting judicial philosophies, co-existing in era, frequently prompt comparison by scholars.  So it was once speculated that perhaps Holmes had met with Hand in precisely that summer.  It’s the kind of story that would make an exciting two-man show for the law-and-theater crowd.

As Healy tells it, Hand did play a role, if less direct, in reshaping Holmes’s thinking.  Another figure emerges as a key intermediary in Healy’s narrative, British political scientist Harold Laski.  Laski did interact with Holmes quite a bit, before, during, and after the summer of 1919, and his influence is plain.  Of course the full story is a good deal more complex, and Healy constructs it masterfully.  More than that, I won’t spoil.  Read the book.

Holmes in 1861 daguerreotype.

I was struck by three points of the story, and they all relate to Holmes not really being the paragon of personhood I wish he were.

First, Holmes was an elitist.  He read 50 books in the summer of 1919, Healy recounts.  He was always eager to immerse himself in the rich intellectual legacy of the Greek philosophers.  He was much less eager to take up Justice Brandeis’s invitation to visit textile mills in the summer of 1919 to witness for himself the unsettling state of labor and labor strikes in post-war America.  On the one hand, it’s fabulous that Milton’s Areopagitica and Mill’s On Liberty were part of the deep knowledge of the man who shaped modern free speech law.  On the other hand, it’s hard to tell whether he really understood the implications of dissent on the ground.

As my law school is now in the process of hiring a new dean, I think about Holmes's elitism in relation to the transformative trauma unfolding in legal education today.  Law schools are entranced with experiential education and are dumping jurisprudence in an effort to get students more time in practice training.  Ian Holloway and Steven Friedland recently located legal education in tension between a “grand university” model and a “Hessian craft guild" model.  Holmes was all grand university, and that is not ideal.  But modern free speech would not be what it is today if we were depending on the Hessian craft guild to build it.  It’s really important to have room for both.

Second, Holmes was a little slow on the uptake, even on free speech doctrine.  There was in fact correspondence between Hand and Holmes, though it pre-dated 1919.  And Healy reports how Holmes just missed the point.  Had he gotten the point, he might have started dissenting a bit earlier, and maybe even saved some demonstrators and harmless Bolsheviks from long prison terms.

A good example of Holmes’s fumbling start is the “clear and present danger” doctrine, which was born before the summer of 1919, but only later acquired its more rights-protective meaning.  “Clear and present” was indicative of Hand’s influence, suggesting as it did what today we might call a behavioral economic approach to legal reasoning.  But Holmes rather blew it, because his use of the test was highly subjective.  He gave the test no meaning, so allowed it to be perverted by the fever of the Red Scare.  Later evolution of the test would reveal a dynamic relationship between variables such as the “imminence” and “gravity” of the danger.  That more sophisticated analysis prophylactically protects speech that might be subversive, but poses no real threat, and also allows free speech doctrine to realize its critical anti-majoritarian function.  Hand understood that in 1917.  It took Holmes quite a while to work it out.

Third, Holmes was not a friend you could count on.  Amid the Red Scare, Holmes’s dear friends Laski and Felix Frankfurter, on the Harvard Law faculty, suffered virulent persecution for their politics and identities.  The “Red Summer” was the very summer of 1919.  Both men were sympathetic with labor, and both were labeled Bolsheviks.  Frankfurter, who was Jewish and Austrian, was further denigrated by post-war anti-Semitic and anti-German sentiments.  Critics of Laski, a British national, demanded his expulsion from teaching at Harvard Law.  Imagine!—persecution on a law faculty based on the politically correct zeitgeist.  How last century.

To be fair, Holmes and Harvard Law Dean Roscoe Pound did take steps to defend Laski and Frankfurter.  But their efforts, especially Holmes’s, were lackluster.  Despite the loving affection that Holmes professed for like-a-son Laski in private correspondence, Holmes resisted early entreaties to help.  Holmes was afraid of offending Laski and Frankfurter’s persecutors on the Harvard Law faculty, whom Holmes regarded as friends.  Holmes preferred to distance himself from the conflict and retreat to the sanctified solitude of his private library.  The great dissenter, a Civil War veteran wounded in action, whose famous diction dominated doctrinal opponents, shrank from moral defense of his friends, lest the comforts of his social and economic status be placed in jeopardy.   

Huh.

An honorable biographer, Healy is straightforward and matter of fact when it comes to Holmes the man.  Holmes was a voracious reader, brilliant thinker, and surely was one of the greatest jurists, perhaps the greatest jurist, in American history.  Civil rights as we know it today, and much of human rights as it is known in the world today, owes a debt to Holmes.

Holmes also cheated on his wife.

“If anyone, then, knows the good they ought to do and doesn’t do it, it is sin for them.”  James 4:17.