Judge Posner, J.S. Mill and Same-Sex Marriage

Sometimes the gods of happy coincidence smile down on us as law teachers. This last week I have been working with my Legal Theory students on rights and freedom, and on Thursday Judge Richard Posner handed down the (unanimous) decision of the US Court of Appeals, Seventh Circuit in Baskin v Bogan, striking down legislative bans on same-sex marriage in the states of Indiana and Wisconsin.

In a closely argued 40-page opinion Judge Posner finds that the states’ bans breach the Equal Protection Clause of the US Constitution. The case does not address the argument that gay marriage should be permitted as a fundamental right. The decision thus sits within a framework of classical Equal Protection ‘suspect class’ legal analysis. It finds that the same-sex-marriage bans discriminate on the basis of sexual orientation, and that such classification, being based on an immutable characteristic of the group discriminated against, proceeds along ‘suspect lines’. Consequently the obligation falls on the states seeking to uphold the ban to rebut the presumption that they have breached the Equal Protection Clause, by showing that they have a compelling justification for their marriage limitations. This, in the court’s judgment, Indiana and Wisconsin both wholly failed to do. ‘Simples’ as a certain meerkat might say.

In truth, attempts to defend same-sex marriage bans have been facing a struggle in the US ever since the possibility of direct moral condemnation of homosexuality was precluded by Lawrence v. Texas. The defendants arguments in Baskin v Bogan were objectively weak, and there can be little question that Posner does an effective and at times humorously serious job of highlighting the implausibility (if not absurdity) of the arguments and hence the irrationality of the states’ discrimination. The analysis is littered with some extremely pithy observations – one of the most striking perhaps being that bans on same-sex marriage are even more onerous than bans on interracial marriage because they allow gay people no real prospect of marriage at all, whereas intra-racial marriages were at least permitted (p. 29).

But it’s in its reasoning and its (unusually) explicit philosophical basis that the judgment gets interesting for my purposes. In the course of argument Posner reframes the case within a distinctly Millian consequentialism, arguing that legal intervention is only justified where the act complained of causes harm to another’s person or interests. This can be seen in three key points of the judgment. First, Posner establishes that the denial of same-sex marriage causes significant harms (economic and psychological) to members of the gay community. Secondly, he rejects the idea (in the absence of any concrete evidence to the contrary) that permitting same-sex marriage of itself undermines the institution of marriage in expressly Millian terms:

We know that many people want to enter into a same-sex marriage (there are millions of homosexual Americans, though of course not all of them want to marry), and that forbidding them to do so imposes a heavy cost, financial and emotional, on them and their children. What Wisconsin has not told us is whether any heterosexuals have been harmed by same-sex marriage. Obviously many people are distressed by the idea or reality of such marriage; otherwise these two cases wouldn’t be here. But there is a difference, famously emphasized by John Stuart Mill in On Liberty (1869), between the distress that is caused by an assault, or a theft of property, or an invasion of privacy, or for that matter discrimination, and the distress that is caused by behavior that disgusts some people but does no (other) harm to them. Mill argued that neither law (government regulation) nor morality (condemnation by public opinion) has any proper concern with acts that, unlike a punch in the nose, inflict no temporal harm on another person without consent or justification. The qualification temporal is key. To be the basis of legal or moral concern, Mill argued, the harm must be tangible, secular, material—physical or financial, or, if emotional, focused and direct—rather than moral or spiritual….

….[W]hile many heterosexuals (though in America a rapidly diminishing number) disapprove of same-sex marriage, there is no way they are going to be hurt by it in a way that the law would take cognizance of. Wisconsin doesn’t argue otherwise. Many people strongly disapproved of interracial marriage, and, more to the point, many people strongly disapproved (and still strongly disapprove) of homosexual sex, yet Loving v. Virginia invalidated state laws banning interracial marriage, and Lawrence v. Texas invalidated state laws banning homosexual sex acts. (33-34).

Thirdly, Posner then turns to the argument that the primary or sole reason for marriage law

 is to try to channel unintentionally procreative sex into a legal regime in which the biological father is required to assume parental responsibility. The state recognizes that some or even many homosexuals want to enter into same-sex marriages, but points out that many people want to enter into relations that government refuses to enforce or protect (friendship being a notable example). Government has no interest in recognizing and protecting same-sex marriage, Indiana argues, because homosexual sex cannot result in unintended births. (15)

 Posner addresses this claim over more than six pages of argument which, he asserts, demonstrate that the grounds advanced by lawyers for the two states “are not only conjectural; they are totally implausible.” He achieves this in two ways, by highlighting logical fallacies and inconsistencies in the argument, eg:

At oral argument the state‘s lawyer was asked whether “Indiana’s law is about successfully raising children,” and since “you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?” The lawyer answered that “the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.” In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure. (19-20)


and by countering the evidential grounds relied on, eg:

The state’s claim that conventional marriage is the solution to that problem is belied by the state’s experience with births out of wedlock. Accidental pregnancies are found among married couples as well as unmarried couples, and among individuals who are not in a committed relationship and have sexual intercourse that results in an unintended pregnancy. But the state believes that married couples are less likely to abandon a child of the marriage even if the child’s birth was unintended. So if the state’s policy of trying to channel procreative sex into marriage were succeeding, we would expect a drop in the percentage of children born to an unmarried woman, or at least not an increase in that percentage. Yet in fact that percentage has been rising even since Indiana in 1997 reenacted its prohibition of same-sex marriage…. There is no indication that these states’ laws, ostensibly aimed at channeling procreation into marriage, have had any such effect. (23-24)

In both cases the sum effect is to demonstrate that the claimed benefits of the discriminatory policy do not or cannot justify the harms caused.

In the end, the Indiana and Wisconsin claims do not really constitute a hard case in the classical sense, but they are of interest in demonstrating how a judge can directly employ philosophical reasoning. I think they can also help highlight both the extent to which ‘harm’ itself can be a slippery concept, and that cases will often involve assessing competing harms, (as Posner observes, the state must be able to demonstrate that “the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes” – p.5) rather than the straightforward choice between harm and no-harm that much of Mill seems to assume. Doubtless Posner would also contend that his consequentialism provides a more objective mechanism for dealing with such issues than a lengthy debate about fundamental rights or human dignity, but we are still left with the limitations of a consequentialist approach. The extent to which Posner’s approach relies on evidence of benefit/detriment is, arguably, one of its strengths – so long as the evidence is there, and is reliable, but what if the harms are finely balanced, or both sides are reduced equally to conjecture? Moreover, despite some fairly critical comments about elements of the defendants’ attempts to link marriage and parenting, Posner’s own reasoning relies heavily on the benefits of marital status to the adopted children of same-sex families, an argument that potentially falls flat in contexts where gay couples are still denied the right to adopt as well as the right to marry.




New surveys from Targetjobs

GTI Media, the publishers of the Targetjobs websites, have completed their 2012 trainee and law student surveys. The results can be found here.

Results for the trainee survey are derived from an online survey completed by 206 trainee solicitors working at a ‘variety’ of law firms. Headline findings include:

  • Just over 70% agreed that the LLB/GDL prepared them ‘quite’ or ‘very’ well for work
  • Over 90% thought that the LPC prepared them ‘quite’ or ‘very’ well for legal practice
  • About 75% agreed that ‘university’ prepared them ‘reasonably’ or ‘very’ well for their training contract

These headlines obviously suggest a fair degree of satisfaction with the status quo. Neil Rose in Legal Futures has been quick to suggest that “the results arguably run contrary to the sentiments coming out of the ongoing Legal Education and Training Review (LETR) that the LPC is not preparing students adequately.” Of course its Neil’s job to look for an argument, but I have two responses to that statement; first, so far, we have only asked the question, we are still looking at (for) the evidence, either way. Secondly, I’m not sure the evidence to LETR thus far is pointing to radically different conclusions regarding student perceptions (though those of course are just part of the picture, and we are trying to be more nuanced about it, precisely because these sorts of headline stats are of relatively limited value).

As with all stats, the story they tell depends, to an extent, on how we choose to interpret them: glass half full or glass half empty? Should we be concerned that over a quarter of graduates felt that their LLB/GDL did not prepare them ‘at all well’ for the world of work?  Similarly, that 68% said the LPC prepared them only ‘quite well’ for the TC might be seen as less than a ringing endorsement. Is ‘quite well’ good enough, or is it realistically as much as we can ask of a classroom-based course?

More than that, however, responses need also to be read in the context of what else was asked, and what else we know about the sample. From the published GTI date the contextual date appears quite limited:

  • All respondents are employed as trainees, so the system has worked for them. We don’t know if that predisposes them to the status quo. Would unsuccessful LPC graduands have given a significantly different set of responses?
  • We don’t know whether factors like sponsorship, the provider attended, or attendance at a ‘bespoke’ LPC make a difference to perceived satisfaction. Some more sophisticated factor analysis might be really helpful here.
  • What if we asked them to envisage a better way of training, how would the LPC compare then?
  • What if we also asked them whether the LLB or GDL should be a better preparation for work or not? That might have given a different slant on satisfaction with the degree/GDL

This is not intended to rubbish the GTI findings, but it does highlight (as if we need to!) the difficulty we face in interpreting such broad data.  This is one of the reasons we are drawing extensively on qualitative data for LETR, and, interestingly, the individual comments reported by GTI do echo quite a number of the things we are hearing in our fieldwork.

The student survey (705 respondents) also offers some strong measures of student satisfaction: 85% of those studying law were ‘happy’ or ‘very happy’ with the quality of their degree, and only 4% felt that their degree did not prepare them for work.

Not surprisingly, the GTI data echoed other recent studies that have emphasised the criticality of work experience to access to the profession.  93% of students stated that they found it ‘difficult’ or ‘very difficult’ to get a vacation placement offer. Students also felt strongly that the profession has an obligation to provide more work experience opprtunities than it currently does.

The survey also reports that 43% of students were thinking about a career outside of law. The report speculates that this may reflect the higher competition for training contracts and pupillages. But again the evidence may not really support this. It is not clear whether the GTI data disaggregate those students considering a non-legal career as a back-up option from those who have no intention of entering the profession. Melissa Hardee’s recent survey, along with other studies going back to the 1980s, suggests that, by the final year of the degree, consistently over a third of law students have no intention to enter practice, indicating perhaps that increased competition may be having less of an impact than the 43% figure at first sight suggests. But food for thought nonetheless.

Law School applications and social mobility

Publication of the first round of UCAS figures brings news of an overall fall of 11.9% in home applications to university compared with this time last year. That won’t come as a great surprise to many doomsayers in the wake of the Government’s carve-up of higher education (a process which was of course commenced by the previous lot – in case you thought my political biases were showing).

But whether it will all be doom and gloom is not something we should be predicting at this stage – it is simply far too soon to tell. The only deadline that has passed is for  Oxbridge, medicine, dentistry and veterinary science – and these only show 0.8% decline. None of these are ‘ordinary’ parts of the HE ‘market’ so we should equally not read too much into that either. Given the high demand for all these areas, one might reasonably expect only a small decline here – so that in itself may not say much about what will happen in the rest of the sector. At this stage, I think, there are only trends to watch.

First, there are big variations in how the (apparent) decline is affecting different disciplines: -26% in business studies, and -17% in architecture, for example, whereas law is only -5%. Such variations could make hitting targets and managing student numbers a lot more ineresting for universities, particularly in the context of the new recruitment game that has been created by splitting the ‘market’ into high achievers (AAB+)/core and margin.

Secondly, the decline in home student numbers so far has been offset by a rise in international applications. Is this a sign of increased recruitment activity by UK universities as a safety net, and/or is it symptomatic of students moving away from the US and Australian markets, both of which have had their troubles? We shall have to see.

Thirdly, rather more troubling is the noted decline in mature student numbers. Overall, applications from students aged 19 or over has fallen by 19.2 per cent. Applications by those aged 30 to 39 have fallen by 22.7% and by those aged 25 to 29 by 21.4%. These age groups do quite a lot of the sector’s work for diversity and social mobility – the participation rate of black 17-30 year olds, for example, exceeds that of white students; for 17-19 year olds it is below the proportion of whites.

Underneath this, of course, is the troubling concern that any significant decline in undergraduate student numbers is going to impact the sector’s continuing poor performance on social mobility (as opposed to diversity – we are pretty good at middle class diversity now in the UK, its really upping the mobility of the working class we still have problems with). In their background papers for the White Paper, BIS advisors made the point very clearly that social mobility would be assisted by an increase in student numbers, which, of course, the Government has felt obliged to ignore (and yet still claim its reforms will be good for social mobility).

To what extent students will be put off by the spectre of massively increased debt is moot, and an issue we have been currently exploring as part of the LETR literature review. Research on earlier changes to the fee regime have not uncovered the fear of debt as having a significant or systemic effect on participation, but we are moving into a different country now, with the average level of indebtedness predicted to more than double (and averages in this area are notoriously unhelpful; I suspect – but can’t prove – that they disguise a broad range with quite a lot of polarisation towards the ends of that range.

In the US, law school applications for 2011 were running 12.5% down in January, levelliing up slightly to a 10% decline by September – the biggest drop in 1o years according to the Wall Street Journal, but that’s probably still not big enough to have too many Deans and Admissions Directors losing sleep.Would a 5% or 10% decline in applicants have a serious impact on UK law schools? The ratio of applications to places across the whole sector works out at roughly 1.5 to 1, so there is capacity to spare, though this, of course, disguises massive variations in the demand for places between institutions. A 10% drop may well be enough to make life very uncomfortable for some of the least popular recruiting universities. The new funding regime, again adds to the complexity here.  If  their core numbers were to continue to decline through under-recruitment and/or re-allocation to the margin, and they failured to achieve successful bids for margin numbers, we could certainly see some schools seriously at risk in the next two to three years. But there are, as you can see, a number of variables at play.

Closure of any post-92 law school is not going to be good for the diversity of the legal education sector. Will a decline in student numbers impact diversity and social mobility in the legal profession? Worryingly, possibly not a lot. Most of the improvements in social mobility have  been achieved by the post-92 sector, and such research as is available suggests that the cost of vocational training, combined with the recruitment practices of (seemingly) a significant part of the profession, still leave the majority of those students seriously disadvantaged in the marketplace. The 2012 changes will certainly not make a tough job any easier.

Careers: why ‘Big Law’ or any law?

For the students amongst you, or anyone thinking about a career in law, have a look at the excellent post by blawger Tim Bratton, General Counsel at the FT.

Westminster and Warwick – two universities I’ve worked in, are very different law schools, but their students have tended to share the same aspiration for corporate work at a magic circle firm – ‘Big Law’.
Why? Money and status are undoubtedly significant motivations for at least some, but we also know that those kinds of aspirations are not necessarily the ones that will keep you walking into the office with a spring in your step ten years down the line. The essence of Tim’s post is a plea to consider what is going to bring the gleam to your eye or a smile to your face – to put it more academically, (in American legal ethicist William Simon’s words) what will have you experience what you do as ‘meaningful work’. That’s not necessarily an easy question to answer when you’re in your late teens or early twenties, with limited experience of any working environment, and its not just a question to ask if you’re thinking about ‘Big Law’. it’s worth asking whatever you might consider doing.

I don’t think, even in these days of debt and under-employment, its romantic to want your work to be an extension of your self-expression. I’m clear it makes a difference. It’s certainly a big part of why I chose academia over practice, though I probably wouldn’t have phrased it that way when I was making those decisions at 22 or 23! While there are plenty of lawyers who are satisfied with what they do, research shows that there are also those, particularly 5-7 years PQE, who are pretty miserable, but feel trapped by the salary, or the narrow niche work they are doing.

Julian Summerhayes (a solicitor turned business consultant and coach) in his response to Tim’s post, strongly endorses that same view, as I think would many of the lawyers I know:

‘If I was starting out now in law, I would ask myself one basic question: “Why law [as opposed to any other career]?”

What is it that is so special about buying and selling a house, preparing a will or even the more juicy end of the market? If all I could rely on in answering the question was the money – I wish a few more people were honest enough to say that – then forget it.

Go do something that inspires you. But if you see yourself contributing in a much wider context – doing good if that is not too altruistic – then consider if the partnership model (as currently constituted) will allow for that. Don’t just focus on the brand name of the firm but think about the clients, sectors and pro bono work they do. What really does float your boat? Can you marry it up with a career in law?’

Changes to the legal services market being ushered in by the Legal Services Act are also changing the employment game. I suspect that opportunities to train as a solicitor or barrister in traditional private practice will, as a result, continue to decline gradually, whilst opportunities to work as a paralegal or employed lawyer in other business settings will expand. And remember, this is in a context where less than 50% of law graduates currently are progressing to work in the legal profession. Clearly there are opportunities and threats here. Be prepared to be creative and flexible; look outside the box of traditional practice. In short, think about what really matters to you, you’re core values if you like, and what kind of work would be alligned with those values.

Back to the (Academic) Future

UKCLE recently ‘premiered’ its film on the future(s) of legal education at our Learning in Law Annual Conference in January. The premiere was certainly popular enough to generate a good turn out at the end of a longish day, and was followed by a lively plenary discussion the next morning. I’ve also shown the film as part of the Law Teachers’ Programme on the LLM at University College, London. I think it says some useful and sometimes quite contradictory things about where (English/UK) legal education is and ought to be going. It also touches, quite frequently, on the values that (might) underpin the practice. I’d be interested to get a debate going here, so: what do you think…?

‘Disruptive’ students – some practical points

1. Include course and behaviour norms and expectations for students and teachers in course and module handbooks. This is obviously easier to achieve if staff are prepared to agree AND ENFORCE a consistent ‘policy’ across a programme or department. Potentially disruptive students may play on mixed and inconsistent messages.
2. Discuss these norms and expectations with students at induction and/or the start of modules. Share control and responsibility with them, obtaining agreement about the norms for classroom behaviour. If they have additional suggestions/norms, discuss them, and, if agreed add them to your list. This list could form part of a formal learning contract.
3. Use role modelling and ‘impression management’ – eg, if you don’t want students to be late and under-prepared, be on time and well-prepared yourself. Dressing and acting ‘professionally’ can be used to reinforce status and behaviour norms – if desired, though this may appear to emphasise the power disparities that exist in the classroom.
4. Prevention is easier than cure: detachment and boredom are significant causes of disruptive behaviour. Consider building greater variation of learning styles and a wider range of activities into learning and teaching, in an attempt to engage all students.
5. If disruptive behaviour does occur, see if you can change what you are doing – eg, divide students into groups for some work, or create an activity. Get the disruptive students to take some responsibility for how the class goes – eg to act as rapporteurs or lead discussion.
6. Don’t ignore continuing disruption, deal with it firmly but calmly when it arises. Don’t take it personally, and don’t make it personal.
7. Unless you have concerns about your personal security or safety, don’t walk out on a class, you will still shave to go back and deal with the problem next time
8. Speak to disruptive students outside of class. Explain why you find them disruptive, try to find out why they are acting that way, ask them what they would prefer to be doing. See if you can agree a way forward together.
9. Disruption that constitutes bullying or victimization of a faculty member or student is unacceptable in any circumstances and should be addressed as a disciplinary matter.

‘Disruptive’ university students – causes and cures?

Non-academics tend to be surprised when they hear university teachers complaining about a growing number of ‘disruptive’ students. “Surely not”, they exclaim, “these are people who choose to be there, and are paying for the privilege, why would they want to disrupt classes?” A good question. I’m not sure just how new or widespread a phenomenon it is, but it is one that seems to have generated, in recent years, a growing number of comments in the academic trade press, and teaching guides. Certainly many US universities seem to have developed formal policies on dealing with disruptive students – though (outside of library policies specifically) that still seems much less common in the UK. At UKCLE we have received a few questions about how law schools should deal with the problem. It was one of these that prompted me to put some thoughts together, first as a response to the specific enquiry, and now for hEaD space.

The first step is to think about what actually constitutes disruption, and what is causing the behaviour. Studies on disruptive behaviour in schools indicate, not surprisingly, that it can be both student and teacher-induced. I suspect, in HE, quite a lot may also be influenced by the fact that students are exposed, often quite abruptly and with limited support, to what is, for some, an alien learning environment. A lot of low-level disruption is likely to reflect either a genuine lack of awareness of expected behavioural norms, or sometimes an expression of frustration at, or sometimes a feeling of alienation or inadequacy in that environment. Viewed in this way, quite a lot of ‘disruptive’ behaviour probably shouldn’t be labelled as such. In my view real disruption involves intentional behaviour that significantly and ongoingly interferes with the learning experience of other students. Defined in that way, I suggest, it focuses our attention on practices involving active non-engagement in or interference with learning activities, such as routinely and deliberately talking over the tutor or other students, repeated mobile phone use, hectoring or bullying of other students, and/or the teacher. The more extreme forms of such behaviour, rightly, become a disciplinary issue, but the lesser forms, and even unintentional ‘disruption’ can also have a serious impact on the learning environment and need to be addressed appropriately.

Arthur Levine and Jeanette Cureton in their book When Hope and Fear Collide (1998) looked at US college students’ attitudes and behaviours in the 1990’s. They interviewed 9200 students, 270 Student Affairs Officer and did focus group interviews at 28 campuses across the US. Despite its US provenance, I think it has resonances for the UK. One of their key points is that there is a significant mismatch between teachers’ teaching style and students’ learning style. While students tend to like learning that has structure and direction, involving concrete, practical, experiences and exemplars, faculty often prefer learning that moves from the global (‘general principles’, or the ‘big picture’) to the particular, involves a relatively high level of abstraction and theory, and, often the deployment of only lightly directed, or ‘discovery’ forms of learning.

My point here is not that either approach is right or wrong, rather, it is that the mismatch itself can generate a loss of respect and frustration for both sides in the relationship, and trigger patterns of ‘disruptive’ behaviour. This suggests that at least part of the solution may lie in properly addressing the difference in expectations. In the next post I’ll explore some tried and tested strategies that can help deal with the problem.