Thinking About the Constitution at the Cusp

What do I mean in saying that we need to think about the Constitution at the cusp? I have in mind an image in which we have one way of thinking about the Constitution on one side of a line, and another way of thinking about the Constitution on the other. My sense is that we may have crossed such a line quite recently. I believe that we may be in a new constitutional order, different from the New Deal-Great Society constitutional order that existed from 1937 to sometime in the 1980s. If so, those of us who have been teaching constitutional law for a long time may find ourselves in the position of law professors in 1938 and 1939, whose way of thinking about the Constitution was developed in the 1920s: we are intimately familiar with a whole raft of cases that simply do not have much to do with the Constitution in this new constitutional order. A law professor who said in 1940 that the farm program at issue in Wickard v. Filburn would be unconstitutional under the standards the Court used in the 1920s might have been right, but his statement would also have been profoundly irrelevant. I sometimes have the same feeling about critical comments about the Supreme Court\u27s recent work: the criticisms are that the Court\u27s current actions are not what the Court would have done ten years ago, and that the Court\u27s actions are inconsistent with the way most law professors have come to understand the Constitution. This criticism may be true enough, but it is perhaps profoundly irrelevant

Taking Politics Seriously - but Not Too Seriously

John Rawls’ gamification of justice leads him – along with many other monist political philosophers, not least Ronald Dworkin – to fail to take politics seriously enough. I begin with why we consider games frivolous and then show how Rawls’ theory of justice is not merely analogous to a game, as he himself seems to claim, but is in fact a kind of game. As such, it is harmful to political practice in two ways: one as regards the citizens who participate directly in it, and the other as regards those who do no more than follow it. Similar harms, I then argue, come from taking politics too seriously, which is the attitude I ascribe to pluralist political philosophers such as Isaiah Berlin, Stuart Hampshire, and Bernard Williams. To them, the plural, incommensurable nature of values means that they cannot be reconciled and so that politics must be a matter of negotiating dirty, and often tragic, compromises. What we need instead, I conclude, is a third way, one that is neither monist nor pluralist but in-between the two extremes

Did Justice Scalia Have a Theory of Interpretation?

It seems beyond bizarre to ask whether Justice Scalia had a theory of textual interpretation. If he did not have such a theory, what were he and his critics talking about for the past three decades? The answer is that they were talking about part of a theory of textual interpretation but not an actual, complete theory. A complete theory of textual interpretation must prescribe principles of admissibility (what counts towards meaning), significance (how much does the admissible evidence count), standards of proof (how much evidence do you need for a justified conclusion), burdens of proof (does inertia lie with acceptance or rejection of a proposed meaning), and closure (when is the evidence set adequate to justify a claim). Justice Scalia said a great deal about principles of admissibility and significance, but he said very little about the other essential elements of an interpretative theory. Moreover, much of what Justice Scalia said, and much else that can be inferred from his writings, about statutes and constitutions concerned theories of adjudication rather than theories of interpretation. The relationship between interpretation – the ascertainment of textual meaning – and adjudication – the determination of real-world cases – is actually quite complex, even if one has a normative theory of adjudication that says to decide cases as much as possible in accordance with interpretatively derived textual meaning. In the end, one probably cannot say that Justice Scalia had a theory of textual interpretation. He came close, however, to articulating a complete theory of how to apply statutes and constitutions in adjudication; he was lacking only a clear identification of the appropriate standard of proof for resolving legal claims in adjudication

Did Justice Scalia Have a Theory of Interpretation?

It seems beyond bizarre to ask whether Justice Scalia had a theory of textual interpretation. If he did not have such a theory, what were he and his critics talking about for the past three decades? The answer is that they were talking about part of a theory of textual interpretation but not an actual, complete theory. A complete theory of textual interpretation must prescribe principles of admissibility (what counts towards meaning), significance (how much does the admissible evidence count), standards of proof (how much evidence do you need for a justified conclusion), burdens of proof (does inertia lie with acceptance or rejection of a proposed meaning), and closure (when is the evidence set adequate to justify a claim). Justice Scalia said a great deal about principles of admissibility and significance, but he said very little about the other essential elements of an interpretative theory. Moreover, much of what Justice Scalia said, and much else that can be inferred from his writings, about statutes and constitutions concerned theories of adjudication rather than theories of interpretation. The relationship between interpretation—the ascertainment of textual meaning—and adjudication—the determination of real-world cases— is actually quite complex, even if one has a normative theory of adjudication that says to decide cases as much as possible in accordance with interpretatively derived textual meaning. In the end, one probably cannot say that Justice Scalia had a theory of textual interpretation. He came close, however, to articulating a complete theory of how to apply statutes and constitutions in adjudication; he was lacking only a clear identification of the appropriate standard of proof for resolving legal claims in adjudication

The New Imperialism: Violence, Norms, and the Rule of Law

The goal of this Article is to participate in the challenging project of carving out a new area of study in the place where international law, comparative law, and domestic law intersect. In this Article, I use the story of flawed rule-of-law assistance efforts to demonstrate the importance of this inquiry. I take as a basic premise that there are many situations in which it is justifiable and beneficial for the U.S. and other actors to seek to promote human rights and the rule of law abroad, and that at times even military interventions are a necessary and justifiable part of this effort. These are controversial statements (and do not imply endorsement of any particular past intervention), but I will simply assume their truth for the limited purposes of this Article. If we assume that efforts to promote the rule of law are important and justifiable, however, we need to make those efforts as effective as possible. The initial goal of this Article, then, is to convince readers that there is indeed a problem with how we go about promoting human rights and the rule of law. I argue that the root cause of the problem is the failure to take seriously issues of norm creation, and the complex relation between law and norms. In part, truly acknowledging this problem must involve recognizing something lawyers are often reluctant to acknowledge - that at times the law in its formal sense is of peripheral importance at best. Although we imagine that the trappings of formal law are central to creating order and reducing violence, there is little evidence that this is so. Second, this Article seeks to map out a preliminary research agenda for this new field, outlining the kinds of questions we urgently need to start asking, and suggesting some of the things we will need to do to start feeling our way towards some answers. I recognize, of course, that we may never have complete answers to questions of such complexity, but insist nonetheless that we can be at least a little bit more sophisticated than we currently are. Finally, I want to suggest some very preliminary hypotheses about what those answers might look like

Using Indigenous stories in caribou co-management

One day my dream would be to write a policy in my own language and let somebody else interpret. I think my days of interpreting are going down steadily. I’d rather just talk my language these days and leave it at that. As an officer I used to do a lot of judging. I was trained to do that. After I left the Wildlife Service, my wife said to me, “How come you don’t ask those questions anymore?” I said, “I don’t have to. I don’t need to. I just want to be a Dene, like the wildlife out there. Continue being a human being.” As a Dene person I’m taught to listen, to respect people, especially in learning centres because those are like my grandfather. I was taught never to ask questions. I don’t, out of respect. We don’t do that today anymore. The first thing I learned in school was the word “why.” I can think right back when I was growing up as a small child there was no word “why” or “what for.” I had to learn very quickly that if I’m going to be a human being in the future, then I’m going to have to start behaving so that my people will live. Our history is written on the land, in the placenames and the stories, in the language. It’s so important. Our people are disappearing very quickly

Introducing transdisciplinary design thinking in early undergraduate education to facilitate collaboration and innovation

The upcoming generations of college graduates will be inheriting the most complex world of opportunities and challenges that has ever existed. Professionals in many design, engineering, and other related fields will be forced to adapt to rapid change in our environment and resource constraints, and presumably in our social structures as well. We need to give the builders of the future the tools to address emerging problems effectively and collaboratively, without preconceived frames of the problems to be solved or the limits of their expertise in solving them. Design thinking, a term that was coined only in recent decades, has been gaining increased attention as a definable process that allows rapid, innovative, and user-centric problem solving, much in tune with the rapid pace of change in a technology-driven world. Numerous designers and theorists have weighed in on this concept, and programs such as Stanford University\u27s graduate-level d.School have developed it as a practical curriculum that has immediate impacts on a world much in need of out-of-the-box thinkers; i.e., designers. At Iowa State University (ISU), classes that touch on design thinking have been offered in several fields of design such as industrial design or architecture, but not specifically for visual or interaction design--and indeed, not in a context that encourages transdisciplinary innovation or that harness the creativity and ideas of disciplines outside design. Nationwide, there is a gap in curriculum development at the undergraduate level--both for teaching undergraduate design students and for introducing design thinking to our future entrepreneurs and engineers who will be shaping our physical world. My goal has been to capture insights on design thinking education, practice, and on the design students for which an undergraduate class could be offered. In Appendix A, I present such a prototype syllabus as a starting point for a full curriculum. This product, albeit only a beginning, was only possible after a prolonged and recursive research and ideation process, which constitutes the body of my thesis. As a practitioner of design thinking, I needed to understand at a deep level the challenges and benefits of such a class, through empathy with both undergraduate design students and those experienced design thinkers who teach or lead groups of designers. On the most basic level, I needed to discern, What would such a class teach? and Is such a class necessary? My guiding questions were as follows: Q1: What commonalities exist between the various design thinking process models that can be synthesized into a generalized theory of design thinking? Q2: What does experience say are the basic tools and challenges in the practice of design thinking and therefore the most important educational tools of the practice to introduce to students? Q3: Do undergraduate design students think in a way that is consistent with a general theory of design thinking? In Chapter 2, I review the literature written about design thinking, including that which predates the exact term, but laid the groundwork for the explosion of conceptualization that followed. In Chapter 3, I describe my three basic lines of research: 1) What do professional designers say about design thinking and teaching design thinking? 2) How do students naturally design, when given a design assignment? 3) What have I learned in my own career as a designer? In Chapter 4, the results of this research are presented. Chapter 5 analyzes the results and presents the next steps to take. Specifically, I read extensively in the design literature, interviewed 8 professional designers and/or design teachers, and observed and interviewed 7 art and design students approaching a creative assignment, which I also participated in. These observations provided insights that will guide my future work. Overall, I learned that the design thinking model can be generalized, despite the multiple forms of its articulation in the literature. I summarized the process as occupying three stages: Discover, Create, and Build. Other assumptions and precepts of design thinking, that do not fit into this visual, were also collected in my model. These include the need for collaboration, optimistic thinking, etc. The second important thing I learned is that students do need explicit training in the design thinking process and related methods. While certain aspects of the process, such as its recursive nature, come naturally to them, the key elements of empathy and user validation were missing from my observations. Design is still a personal expression to these students. Unfortunately, I was not able to examine collaborative work in the research I did, but there is plenty of anecdotal evidence to suggest that undergraduate students do not know how to collaborate effectively across disciplines. My job, of course, is only 2/3rds done. I have arrived at a prototype syllabus and guidance for teaching such a class, but I have not validated or deployed it with apropos lessons or rubrics. In future research, I hope to extend the research of this thesis into the design thinking classroom, observing transdisciplinary student teams collaborating on a project, and possibly further into their student and professional careers

PHD Entrepreneur

presentationThe idea for this speech began when my friends and family started asking what I would do after graduating with my PhD in psychology. Folks tended to get a bit confused when I replied that my plan is to start a business. You don't need a PhD to do that! It's true. The path leading from PhD to Entrepreneur is a road-less-taken. And yet, the path is gaining both feasibility and popularity. Years from now, when historians of academia evaluate the early 2100s, they will classify me as an "early adopter" of the PhD-Entrepreneur identity. That's what I predict, anyway. The speech provides a socio-economical argument to support that prediction

To Lawyer or Not to Lawyer, Is that the question?

A central aspect of much of the debate over access to justice is the cost of legal services. The presumption of most participants in the debate is that individuals of limited or modest means do not obtain legal assistance because they cannot afford the cost of that assistance. The question I consider in this paper is whether income is a major factor in the decision to obtain the assistance of a qualified legal professional. Drawing upon data from five different countries (the United States, England and Wales, Canada, Australia, and Japan) I examine the relationship between income and using a legal professional. The results are remarkably consistent across the five countries: income has relatively little relationship with the decision to forego that assistance. The analysis suggests that those considering access to justice issues need to grapple with the more general issues of how those with legal needs, regardless of the resources they have available, evaluate the costs and benefits of hiring a lawyer

Reflections on Law Student Mental Health by a Dean of Students after 25 Years

Your faculty need to be educated about how to refer students, how to speak with students who pop into their office. Your Dean, writ-large nationally, Deans need to have the willingness, and again, the bravado, the willingness to go to the faculty and say, You need to be part of this movement. Whatever that may mean. I would love to see every faculty member taking 30 seconds at the beginning of every class for students to breathe. Thirty seconds of breathing. If you\u27ve never done it, do it at home today, deep breaths, and see what it feels like. I would like our faculty to make sure that the syllabi are available to the students before the semester begins. Not a big deal at the end of the day. It gets our students crazy! Should be able to do that, particularly if you\u27ve been teaching for twenty years, right? And you may not be changing it a ton. And again, I don\u27t mean to be critical. Small steps, right