Ad coelum FAIL

"Native Hawaiians, like other indigenous cultures, could not grasp the concept of fee simple ownership of land. The concept of owning land was as foreign to them as the concept of owning air would be to us today."

-- Sen. Daniel Akaka, 152 Cong Rec S 5558

Non-lawyer readers, see Wikipedia for a simple explanation of the ad coelum doctrine.

And yes, I really did just need to write a post that had that title.

The self-esteem trap

I was home with the senior Archers this weekend and came upon Polly Young Eisendrafth's The Self-Esteem Trap sitting upon a chair. I'm a sucker for searching essays about the manners and mores of my generation, and the description -- "Today's children and young adults are suffering from a number of symptoms, including obsessive self-focus, restless dissatisfaction, pressures to be exceptional, unreadiness to accept responsibilities and feelings of either superiority or inferiority. According to the author, instead of contentment and positive self-regard, kids raised to believe they are extraordinary or special are more likely to be unhappy and disappointed" -- seemed to fit.

To Eisendrath-Young's credit, some of what she describes sounds familiar. At the same time, I came across psychological studies in college suggesting that sufficiently broadly based personality descriptions resonate with almost everyone. I recall one in which a college professor gave his students a personality test; gave all 100 exactly the same description; and something like 70% of them called the results very accurate. So I fear that nearly everyone feels "pressures to be exceptional" or "unreadiness to accept responsibilities" at some point or other -- self-esteem movement or none.

Eisendrath-Young does a good job excoriating the excesses of the self-esteem movement. That's all well and good, but I'm not sure how many parents and teachers ever embraced the most extreme claims of the self-esteem trend even at its zenith. I fear also her proposed solution -- recognizing that being ordinary and connected to human communities leads to happiness -- may be a cure as bad as the disease. The self-esteem movement was silly because it bred arrogance, yes, but also because most kids intuitively mistrusted the fake egalitarianism at its core. The excellent writers, violinists, and athletes in any middle school are often successful not merely because of superior work ethics; talent also matters. It was farcical to pretend that everyone was the same merely for the sake of ensuring that everyone's self-esteem stayed high. Contra Eisendrath-Young, it's equally farcical to pretend that everyone is equally ordinary so that nobody suffers from feeling exceptional. The point particularly comes out when Eisendrath-Young sighs about the problems of one young woman who has an Ivy League undergrad degree and another Ivy graduate degree and secondly about a 14-year-old boy who's taking college courses. These young people have gifts that aren't strictly ordinary; why pretend that they are, and why expect them to fall for it?

Eisendrath-Young contrasts her angsty ex-Ivy Leaguers with her own blue collar childhood. Her family had its problems, she acknowledges. But kids had greater autonomy then, were less coddled and sheltered from the world's problems, and therefore became more resilient. Also, families obsessed over education less, which meant that even bright children like her grew up without feeling arrogant about their academic achievements. Maybe, although there were plenty of working-class families in the 1950s that were obsessed with education; I'd cite my own mother's family as an example, along with virtually every novel or memoir ever written by a New York Jew. Second, Eisendrath-Young doesn't the possibility that families changed not in response to the self-esteem movement, but in response to the increasing returns on investment in higher education. The lucrative blue collar jobs that Eisendrath-Young's male high-school classmates easily secured simply no longer exist. Given these economic changes, isn't it rational for parents to value education more -- even if there are problems that come along with that mentality?

Not a glorious profession, because it is not a glorious class

Forgive the possible violation of anticipatory nepotism, but the Volokh Conspiracy's Kenneth Anderson has interesting post in which he links to a long essay titled "A New Class of Lawyers: The Therapeutic as Rights Talk." There's much in there that relates back to my project of trying to answer definitively whether libertarians should go to law school.

1)Anderson's observations about how the problem with law is not the deficit of professionalism, but rather an excess in professionalism that overwhelms all else, ring true to my experiences. Anderson's description of the "good" large law firm lawyer as a therapeutic authoritarian also sounds much like the ideal to which my law school classmates and I were taught to aspire.

I chuckled particularly when I read his description of "good" large firm lawyers at p. 1076 as the advance guards of the EEOC; when I tried to convince law firms that I was interested in employment discrimination during OCI, several firms asked me how I as a woman felt about defending employers in harassment cases. I sensed an honest answer -- "I'm president of my law school's Fed Soc, idiot; please see line 3 of my resume" --- would have been impolitic. So I mouthed bromides I didn't really believe about the important work that corporate firms do to bring about "compliance" with laws I'm not convinced are just.

What's relevant to other libertarians here is that I imagine many of them will respond the way I did to this sort of rhetoric. Most of us are ornery Randian individualists deep down. We don't particularly like guilds, and sweeping conceptions of the demands of professional life kind of creep us out.

2)Not related to my larger blogging project, but I'm struck by how much closer my understanding of social deviance (p. 1082-3) is to Herbert Morris's than to most normal right-wingers. I still think there are huge Hayekian knowledge problems with trying to cure deviance via state-imposed solutions, many more than nearly anyone on the left acknowledges. After all, even if one accepts the state as therapist analogy, a good therapist first does no harm. But I recognize that this moral intuition puts me at oods with most other conservatives and libertarians. I'll have to think more about that.

Business, Markets, and the Structure of Social Change

Reason links to http://www.associatedcontent.com/article/1867049/libertarianisms_worst_enemy_is_not.html?cat=75 on why the biggest threat to libertarianism isn't big government; it's big business.

I've said it here before and I'll say it again: being pro-business does not equal being pro-market. Sadly, the business world contains more James Taggarts -- who want to use government to rack up political profits -- than it has passionately pro-market Dagny Taggarts. But as I also said in that post, all too many young libertarians don't understand that point clearly.

I don't know exactly why the fallacy persists, but I suspect it's at heart a structure of social change problem. See also. That is, most of the libertarians whom I've met who work at Level 1 of the structure of social change (the universities) or Level 2 (think tanks) are completely clear on this point. It's younger libertarians and pro-market conservatives, usually interns who are newer to the professional libertarian community, who get most tangled up on this point. So I suspect something's getting jammed in the transmission of libertarian ideas from the think tank world to larger audiences. That happens; it's an inevitable weakness of social change enacted along the model.

I'm tempted especially to blame Atlas Shrugged, which is of course one of the most popular introductions to libertarian thought out there. I don't mean to hate on Rand. It's an excellent novel. But it does deliberately romanticize big business, and so it perpetuates the unfortunate stereotype that all free market types are just shills for large business.

Obama and Girondinism

This NRO article is sufficiently over the top that I probably should leave it alone. Except a single line -- the crack about the Obama administration's "attempt to realize the vision of the 1960s" -- grated in a very particular way that led me to want to get out something I've been thinking for a while.

Which is that Barack Obama is a Girondin according to the idiosyncratic typology I set out in this post. This demands full-on, Atlantic Monthly-style exposition, but Obama may be one of the purest Girondin figures in our national life. Much of his rhetoric about post-partisanship and post-racialism might have been fluff, sure, but it was fluff tailor-made to appeal to Girondins' penchant for compromise and moderation. As annoying as David Brooks often is, I find him indispensable because he understands Girondinism better than any other writer of comparable stature. He wrote the book on Girondinism, after all, which is why he "gets" Obama better than most conservative writers.

Back circa 1999, a high school friend of mine and I were sitting around the lounge of our school, fretting about where we'd go to college. I wondered aloud if, somewhere, there was some American high school senior so perfect that he or she didn't suffer from any of our anxieties. The two of us started sketching this imaginary person's profile. High SATs and grades were necessary, of course, but plenty of our friends had those credentials in spades and we still didn't sleep easy at night. Our ideal applicant should be "diverse," which probably meant black. No, wait, biracial might be better. Having lived abroad at some point would have been good. And he should also an excellent athlete -- maybe a basketball player -- and naturally charismatic and gifted at public speaking. It was disconcerting, some five years later, to see how closely Barack Obama approached the left pro-meritocracy Word made Flesh.

The corollary to Obama's being Girondin, of course, is that he is not a Montagnard. Kahane -- and plenty of other writers -- seem eager to assume that Obama is. It's the wrong tactic. Girondins and Montagnards shouldn't be fought the same way. Better that what's left of the American right focus on trying to understand Girondinism and attack it for what it is, rather than re-fighting the Montagnard battles of yore.

On Bill Henderson's thoughts on the life of law schools

Via Jonathan Adler at the VC, I came across this interesting post on how legal education is out of touch with current practicioners' needs. It might serve as a valuable addendum to my series of advice posts on whether libertarians should go to law school.

Like most of what Henderson writes, it's well worth reading. Still, I am not sure I agree entirely. Though I admit that the Archer/Pnin household has a vested interest in the structure of legal academia not changing much. With respect to his first point about the nature and cost of civil litigation, it's really quite... easy... to name people who work on these issues. All the tort reform types; David Bernstein and other people who have written on Daubert; and, really, wide swaths of the law and economics movement appear to be using economic tools to explain why the civil litigation system may be inefficient or excessively expensive.

I suppose "reduce costs" and "improve access" are also in tension; the people that I listed above are mostly right of center types concerned with minimizing costs, whereas there are plenty of left-leaning academics who write extensively about ways of improving access. I'm less familiar with work by the latter, admittedly because of my own biases.

Granted, I am probably far less well read than Henderson on these issues. Still.

Regarding Henderson's rules, I am also skeptical. I am not really a Burkean conservative... except, well, when I am a Burkean conservative, and I fear that I am one when it comes to university education generally and legal education specifically. Most "bold" or "outside the box" thinking attempts that I encountered in my own legal education cratered spectacularly. See, e.g., the Legal Methods course I had to take in first year, which, despite a fantastic professor, was an unfortunate melange of sixth grade Study Skills ("This is how to brief a case, and also, how to use different colored highlighters effectively!") with watered down versions of Jurisprudence and Administrative Law thrown in for good measure. I liked the latter enough that I had the good sense to sign up for real Admin Law with the same prof, from which I actually learned something useful, so I suppose all was not lost. Ditto whatever the professionalism series thing we had to do in first year was called, which involved sitting around awkwardly in small groups, led by faculty we didn't know, discussing our relative willingness to narc on our law school classmates. I am somewhat kinder to my law school's Trial Advocacy course, which was at least sort of fun. But I have at least some interest in litigation, and I imagine I would view the program far less warmly if I'd always thought I wanted to do transactional work. So, given that track record of innovation, I would politely discourage my law school from further attempts to think outside the box.

my back pages

Pnin sends me a fascinating post on parenting and peer groups. Friedman (Milton's son) claims that, while most children identify with their peer groups over their parents, there are a few interesting cases in which children come to see Parents as Us and peers as Them. He also argues that this Us v. Them mechanism explains why unusual religions flourish even in secular societies.

I agree with Friedman, though I suppose I was also somewhat of an unusual case of his chosen phenomenon. Growing up, I generally felt that I had far more in common with my parents -- and, more broadly, with my mother's entire extended family of Ukrainian aunts, uncles and cousins -- than with almost anyone else I knew my age. One, most of my peers didn't seem to value academic achievement for its own sake and hard work nearly as much as anyone in my extended family did. Two, my peers had imaginations that always seemed curiously constricted and ahistorical. I felt that I understood the world of the 1930s as well as my own world because I spent so much time around older relatives when I was very small. Almost nobody else I knew my own age understood as intuitively that the past wasn't yet past. I did myself coming closer to rebellion much later - in college or in my early twenties, past the usual rebellion stage - because I'd actually found a peer group that felt more like Us than Them. Most people don't go through things in that order.

Elsewhere, this comment thread asks if people who prefer childhood to adulthood are more likely to be libertarian than those with the reverse preferences. For what it's worth as a lone data point, I do prefer childhood to adulthood and lean quite libertarian. There might be some correlation: I'm not all that sympathetic to paternalists in my personal life either. Of course, I also found it frustrating as a teenager that I didn't have more flexibility to choose an attractive peer group. I found adult life (and college life as predecessor to adulthood) infinitely more satisfying because I was able to choose more interesting peer groups.