It is an honor to write about my friend Charles Whitebread. To me, Charlie was always larger than life. Living and working here in Los Angeles, I have had the opportunity to work with many people whose image has preceded them: professional athletes, musicians, actors . . . Charlie. However, once I got to know the person, invariably they could not live up to the image that preceded them—they were just people—with the exception of Charlie.
The judicial appointments process has grown increasingly frustrating in recent years. Both sides claim that their candidates are the “most meritorious” and yet there is seldom any discussion of what constitutes merit. Instead, the discussion moves immediately to the candidates’ likely positions on hot-button political issues like abortion, gun control, and the death penalty. One side claims that it is proposing certain candidates based on merit, while the other claims that the real reason for pushing those candidates is their ideology and, in particular, their likely votes on key hot-button issues. With one side arguing merit and the other side arguing ideology, the two sides talk past each other and the end result is often an impasse. To get past this impasse, we propose placing judges in a tournament based on relatively objective measures of judicial merit and productivity. A tournament allows the public to test the politicians’ claims of merit. Being able to test these claims helps make transparent the occasions in which the real debate is over ideology. It is harder to disguise a purely ideological candidate as the best from a “merit” standpoint when the candidate performs poorly relative to many other judges based on objective factors. Once merit-based arguments have been isolated (or at least reduced in scope) to factors related to the tournament, it should be possible to have a transparent and meaningful debate over ideology.
In Choosing the Next Supreme Court Justice: An Empirical Ranking of Judicial Performance, Professors Stephen Choi and G. Mitu Gulati present an imaginative and well-timed challenge to the current judicial nominations culture, which insists in maintaining that nominees are selected for their excellence when they are actually chosen for their ideology.
In their provocative article, Professors Choi and Gulati make various claims advocating the selection of the next Supreme Court Justice on the basis of “merit.” The ingenious statistical tournament (the “Tournament”) they have designed purports to identify a set of judges-“a merit-worthy pool”‘ of candidates, as they put it-who should be given privileged consideration for future vacancies on the Court.
Professors Stephen Choi and G. Mitu Gulati are ambitious: they seek to quantify great legal minds. This interesting endeavor has both descriptive and normative components. Choi and Gulati hope not only to offer objective measures of what makes a judge great but also to affect the choices that presidents and senators make when appointing individuals to the U.S. Supreme Court.
The goal of this Article is to establish a new area of research exploring the connection between corporate governance and the well-being of children. Admittedly, at first glance, the relationship between the hard-nosed world of corporate law and the welfare of our nation’s most vulnerable citizens is far from obvious. We must step back to see the bigger picture – using the knowledge that we are at a historical transition from an industrial society to a knowledge-based economy. With this wide-angled lens, we can see connections among our most basic institutions of family, work, and corporation. Specifically, each institution is simultaneously in the midst of dramatic social and economic turmoil. Yet, these disruptions are not isolated events. Rather, crucial patterns of relationships emerge across time and among nations.
To explore how the transformations in family, work, and corporation are interwoven, we must start with the premise that human capital is the crucial factor for this nation’s success in the new economy. Even for low-level jobs, the so-called knowledge worker needs math and computer literacy to problem solve and cooperate in teams. The United States has experienced remarkable economic prosperity in the past decade, but when we look into the future, a different picture begins to surface. Compared to other advanced economies, the skill proficiency of our youngest generation of workers is lacking. Given this skills deficit, a wide variety of policymakers have begun to consider the topic of human capital formation. A general consensus exists that there is a danger that America’s children will be unable to meet the needs of tomorrow’s flexible labor markets.
Our law has no mind of its own. In times past, we have fancied law a product of the Deity, and we are still apt to depict it as something transcendent, or even broodingly omnipresent, if not divine. Some of our lawmakers maintain a tradition of donning garments befitting oracles when they utter their pronouncements.
There has been a recent resurgence of interest in class in legal scholarship. This development might have been predictable. Inequality in America has grown sharply over the past two decades. Working people face job tenure insecurity, massive shifts in work structures, and heavy debt. Indigent families have begun experiencing the termination of assistance from the state. Revelations of corporate wrongdoing highlight the power of wealth. But the new interest in class is not rooted primarily in concern with the conditions of low wage workers or the unemployed. Rather, it is a new twist on the topic of race. Out of social discomfort and legal challenges to affirmative action, judges and scholars are seeking a way to confront inequality without confronting race.
Class is important in its own right, but in the United States people usually do not talk much about it. The term is unfamiliar, packed with many different meanings, and uncomfortably radical. In law and popular discourse, the figure of the white working class person has appeared in recent years as the symbol for the need to end or change affirmative action. A searching examination of interest in white working people requires a closer look at class and the social construction of race. The concept of class seems tame only in comparison to the volatility of the discourse on race. It only remains tame if it is understood through a simplistic notion of individual status and divorced from conflict and from consciousness of shared interest among oppressed people – in other words, from groups and relationships of power.
Our law has no mind of its own. In times past, we have fancied law a product of the Deity, and we are still apt to depict it as something transcendent, or even broodingly omnipresent, if not divine. Some of our lawmakers maintain a tradition of donning garments befitting oracles when they utter their pronouncements. Needless to say, the reality is that rules flow out of the pens of mortal persons beneath the impressive robes, persons who must bend their mental efforts to many complex problems and tasks, all competing for their attention.
Half a century ago, the late Herbert Simon developed the theory of “bounded rationality” in connection with human decisionmaking. His insight was that the cognitive resources (like other resources) of human beings are finite and, accordingly, must be rationed. Whether consciously or unconsciously, we all have to make hard choices about how to allocate our intellectual energies. We cope with cognitive deficits, Simon and his students elaborated, in a variety of ways—for example, by searching selectively through the exponential ramifications of our analysis; by settling on decisions that we find sufficiently good, even if not necessarily best; and by developing mental short-cuts (dubbed heuristics) to simplify cognitive tasks, thereby allowing us to arrive at decisions in a more frugal manner.
It was often said of K’ung Fu-tse: “If the mat was not straight, the master would not sit.” This is surely an outlook with which many American lawyers, and those who deal with them, are familiar today. Though there is, of course, something to be said for keeping the mat straight, especially in an area as specific and particular as the law, the refusal to sit because of minor discrepancies can lead to tired legs and a bad temper. In the legal context, this means that certain “mat-straightening” practices can lead to inefficient procedure, incomprehensible or purposeless laws, and, at worst, miscarriages of justice.
The American legal system, descended as it is from Hebraic, Roman, and British law, is, in spite of the genius of its framers, at times hopelessly mired in the muck of mat-straightening when it should be concerned with simply sitting and getting down to the business of justice. This is due not so much to flaws in the basic structure of the law, but to the immense over-complexity that is largely (though certainly not solely) a phenomenon of the modern era. These days, it seems that the simple purpose of the law has been completely obscured by the practice of it. Fortunately, though much of Western legal scholarship has ignored or simply not recognized this trend toward unnecessary complexity, in the East, particularly in China, political and social philosophers have been dealing with this exact kind of excessive insistence on convolution and bureaucracy for thousands of years. They know it as Confucianism.