October 25, 2007
Against "Law Porn"
Larry Ribstein (Illinois) comments. Frankly, I'd rather read about faculty hires.
October 24, 2007
David Kennedy from Harvard to Brown
David Kennedy, a specialist in international law at Harvard Law School, will move to Brown University in January, to take up the position of Vice President for International Affairs. (The Chronicle of Higher Ed has the story here.)
Why Call it Law "Porn"?
Bridget Crawford (Pace) has a rather sophisticated answer here. Pamela Karlan (Stanford), who seems to have coined the term (though I, alas, get the blame for popularizing it), offered this explanation of its meaning awhile back:
When I started using the term "law porn" to refer to the glossy promotional materials from various law schools (and I don't know whether someone else used it first and I just picked it up or whether I was the originator), I was playing off an existing expression -- "food porn." That phrase referred to a kind of breathless, over-the-top journalism about obscure recipes, usually accompanied by arty photos of food shot with annoying lighting techniques and the like. My guess is that the word "porn" was being used there to refer to the titillating way the articles appealed to the senses. Lots of people had been using that term. I was struck by the resemblances between the law school magazines and the foodie publications. Like the food magazines, the law school magazines were characterized by arty photos that often seemed designed to make the buildings or the faculty look vaguely sexy, using come-hither photos. Like the food magazines, the law school magazines used overblown language littered with adjectives designed to convey a sort of excitement. All you need to do is to look at the cover of the current issue of NYU's magazine, with its "Dworkin on Dworkin" cover, and, at least if you're in the legal academy, you'd see what I mean by law porn.
The entire point of calling the magazines "law porn" was to make fun of them, so the fact that the term seems nonsensical to you suggests its utility. At least within the community to which I was directing my remarks -- namely, friends in my faculty lounge and colleagues at other law schools -- my experience has been that the phrase communicates exactly what I intended: people instantly recognize the phenomenon and share my reaction to it.
October 23, 2007
"Why Evolutionary Biology is (so far) Irrelevant to Law"
A revised, penultimate version of this paper I wrote with the philosopher of biology Michael Weisberg is now on-line for those who might be interested. It will appear some time in 2008.
Good Luck to All Those Affected by the Southern California Fires
The law schools at the University of San Diego, California Western, and Pepperdine University are all closed today. (Others may also be affected, but these are the ones I know about.) Professor Tom Smith, on the USD law faculty, is writing about the fires here; he and his family have had to evacuate their home. Coverage of the San Diego fires can be found here and this map shows the location of fires throughout Southern California. Pretty scary. Let us hope the winds die down soon!
October 22, 2007
Professor Bainbridge Comes to the Defense of Grunge!
October 20, 2007
We Need a "Law Porn Blog"!
Daniel Solove (George Washington) is right!
October 19, 2007
David Bernstein on Massad, Finkelstein, Marx, and Freud
I promise not to make a habit of this, but I could not help noticing that after I pointed out the obvious a couple of weeks ago--that Professor David Bernstein (George Mason) has a blind spot for recent attacks on academic freedom by forces outside the universities because so many of the victims, like Norman Finkelstein and Joseph Massad, are critics of Israeli policy towards the Palistinians--Professor Bernstein took it upon himself to launch new smear attacks on both of them. Neither attack is worthy of someone who is a scholar.
In the case of his latest attack on Professor Massad of Columbia University, Professor Bernstein claims that, like the Iranian President, Massad denies that there are homosexuals. Here is the pertinent portion of Professor Bernstein's critique:
No Homosexuals in the Arab World: Recall that at Ahmadinejad's recent speech at Columbia, he responded to a question about Iran's oppression of homosexuals by claiming that "in Iran we don't have homosexuals like in your country." His statement was met with a chorus of boos and catcalls, the only thing he said that really riled up the politically correct crowd of Morningside Heights.
Well, it may come as a surprise to Columbia faculty and students to learn that a current professor at Columbia has argued that there are no homosexuals in the entire Arab world, except for a few who have been brainwashed into believing they have a homosexual identity by an aggressive Western homosexual missionizing movement he calls "Gay International." The article is called, "Re-Orienting Desire: The Gay International and the Arab World," and it appears in Volume 14, issue 2 of the journal Public Culture, and was elaborated upon in a book, Desiring Arabs, published by University of Chicago Press (UPDATE: BTW, I read the article, which is accessible through my GMU library account, but not the book). According to the author, "It is the very discourse of the Gay International which produces homosexuals, as well as gays and lesbians, where they do not exist" (emphasis added).
The author doesn't deny that same-sex sexual contact exists in Arab countries, but claims that the category of "homosexual" is purely a Western one exported to the Arab world by Western cultural imperialists. He suggests that by encouraging Arabs to adopt a Western homosexual identity, westernized Arab homosexuals have naturally provoked a counter-reaction against the importation of decadent Western culture into their societies. The article, to say, the least, is not at all sympathetic with the Western gay rights movements, and the author could easily write, replacing "Iran" with "the Arab world," "in the Arab world we don't have homosexuals like in your country."
My suspicion, upon reading this, was that Massad's thesis was inspired by Foucault's thesis in The History of Sexuality that homosexuality does not mark out a "kind" of human being, and thus had nothing at all to do with the bizarre delusions of the Iranian President. Since the article in question is accessible from my university computer, this was easy enough to confirm. Foucault's History of Sexuality is cited in notes 45 and 73 in Massad's article, and the accompanying text makes clear that Massad is endorsing Foucault's thesis. (Indeed, the longest section of the article has its own subtitle, "Incitement to Discourse," a phrase taken directly from Foucault, as Massad acknowledges.)
Foucault's (and Massad's) thesis does not deny that there exists same-sex contact by numerous individuals in the Arab world (as Bernstein manages to note, though seems not to understand its import); rather, it denies that engaging in same-sex contact marks out a kind of person about whom there are meaningful, lawful (or law-like) generalizations to be made (e.g., that homosexuals are mentally ill; or that homosexual men had bad relations with their father; or that homosexuals only have sex with people of the same sex, and so on). The "kind" of person we call the "homosexual," and with whom certain traits are said to be correlated, is really a social and cultural construct, not a set of interlinked facts about sexual identity that hold invariant across societies and cultures. Indeed, the effect of treating those who engage in same-sex contact as part of a sexual kind is, Massad claims, to "repress same-sex desires and practices that refuse to be assimilated into [this] sexual epistemology" (p. 362; cf. pp. 382-383 for the same point). (I am not much enamored of Massad's writing or intellectual style, but "sexual epistemology" is his name, roughly, for what I am calling Foucault's attack on the idea that homosexuality is a "kind.")
Foucault is, of course, skeptical quite generally about psychiatric kinds (and he is not alone on that score: see, e.g., this informative review of a recent book on this general topic). I have my own doubts about Foucault's general thesis (for reasons discussed in particular on pp. 1091-1094 of this article, forthcoming in The Oxford Handbook of Continental Philosophy that I edited with Michael Rosen), and Professor Massad's deployment of the idea might be thought premised on the assumption that such doubts are misplaced. But all of that is neither here nor there. By associating Professor Massad's familiar (and much-debated) thesis about the nature of sexual orientation with the Iranian President's mad skepticism about whether there are any people engaged in same-sex sexual contact, Professor Bernstein's intent was obviously to smear Massad via "guilt by association"--even though Massad's thesis has nothing at all to do with Ahmadinejad's.
In the case of Professor Finkelstein, Professor Bernstein suggests that opposition to the former DePaul professor arises not simply because he is a critic of Israeli policy but because he makes anti-semitic remarks. (Professor Bernstein also appears to endorse the views of someone named Cathy Young, who doesn't realize that Finkelstein's book published by the University of California Press was, in fact, a peer-refereed publication, but let's just put that display of ignorance to one side. [On the merits of Finkelstein's scholarship and tenure case, the remarks of John Mearsheimer, professor of political science at the University of Chicago, are far more informative; he calls the work "first rate" and makes absolutely clear how outrageous and politically corrupt the DePaul tenure decision was.])
Professor Bernstein rests his entire case on two quotations which he deems to be anti-semitic. The first one seems gratuitously offensive but not anti-semitic (one might criticize appallingly unethical bullies like Abraham Foxman without inflammatory comparisons to Nazi stereotypes), while the second is neither offensive nor anti-semitic (it may, in fact, be false, but Finkelstein provides the evidence that warrants it). Maybe I just have an old-fashioned view of anti-semitism, but I regard remarks as anti-semitic if they denigrate Jews qua Jews, ascribing negative or ugly characteristics or behaviors to someone based on their being a Jew, and nothing else. Neither of the passages Bernstein's quote do that; indeed, the first does the opposite. Adducing evidence that a particular Jewish person, or a particular Jewish community, engages in certain behaviors is not evidence of anti-semitism (unless, perhaps, all the evidence turned out to be false, in which case one might infer anti-semitic motives: but that is plainly not applicable to Finkelstein's claims).
To make matters worse, it turns out that Professor Bernstein has lifted both quotes out of context. Fortunately, he is called on that misrepresentation by a commenter. (Another commenter also makes some interesting observations here.)
I suppose if there were any remaining doubt that with respect to certain topics, David Bernstein is moved primarily by ideology--not concern for academic freedom or scholarly rigor--one need only look at his most recent post comparing professors influenced by Marxism to those who subscribe to Intelligent Design--which is then supplemented in the comments section by his wholly false claim that Freud's "work (or at least the vast majority of it) can't stand up to the scientific method, either."
One need not know much to know that Intelligent Design is just creationism repackaged by those who have consulted a lawyer and a public relations expert, and one may safely assume that Professor Bernstein intends the comparison to be unflattering. One would, however, have to know a fait bit to know about the actual nature and status of Marxist scholarship or the actual scientific status of Freud's theory. If one doesn't know anything about the subject, as Professor Bernstein obviously does not, one might choose instead to remain silent. Not Professor Bernstein.
With regard to Marxism (I have blogged about this before), I think there is a fairly robust consensus that all of the following aspects of Marx's theory are false: (1) the labor theory of value; (2) the theory of the falling rate of profit; (3) the teleological conception of history; and (4) the a priori commitment to the dialectical structure of historical change. Many writers are also skeptical about Marx's conception of human flourishing, though like most philosophical accounts of the good life it still has sympathizers (though this hardly distinguishes it from most other views in the philosophical canon on this score).
My suspicion is that the vast majority of professors influenced by Marxism are not influenced by any of the preceding doctrines. Instead, they find fruitful two other Marxian ideas: (1) that one can explain historical events by attention to how different economic classes pursue their material interests, which lead them into conflict with other economic classes, and (2) that one can explain the public dominance of the moral and political ideas in a culture by reference to the role they play in promoting the interests of economic elites, and even though these ideas will involve systematic mistakes about interests on the part of non-elites. Both (1) and (2) involve empirical claims that have been amply supported in numerous historical and sociological studies. (That they have been "amply supported" is not to say that they are well-confirmed, and thus clearly true:--but they are better-supported than most theses that play a fruitful theoretical role in historical explanations.) The scholarly literatures here are voluminous, so it's hard to know where to begin, but interested readers might look at this paper of mine, especially note 41.
Professor Bernstein is equally ignorant about the actual state of the empirical literature on Freud: he is apparently unaware of the experimental evidence that supports various Freudian theses (in the same paper, see, e.g., note 89 and the accompanying text). In any case, this is no longer worth belaboring. Professor Bernstein is obviously not a credible critic (as even the comments on his posts at the right-wing Volokh site tend to make clear). Yet he is symptomatic of a culture in which politically motivated attacks on the universities are growing more and more common. As Professor Mearsheimer remarked in his talk about the Finkelstein tenure case (linked above), universities are the only place in America where Israel can be discussed honestly and frankly, as though it is just "another country," whose virtues and foibles, and their relationship to strategic American interests (Mearsheimer's main concern), can be evaluated. It is also an arena in which empirical work--historical, sociological, and psychological--can be done that might lend support to theories (like Marx's or Freud's) deemed "beyond the pale" by the know-nothing public culture. There is no reason for Professor Bernstein to be interested in this work, and no one would fault him for remaining silent about it. But one might hope that, as a scholar, he would not contribute to mindless anti-intellectualism about other scholarly pursuits, or participate in smearing authors of scholarly work about Mideast politics that he finds unpalatable.
UPDATE: It would be impossible to do justice in a summary to the multi-layered irrationality of Professor Bernstein's "reply", but I do commend it to those readers with a standing interest in the Dunning-Kruger Effect. Some of the commenters (start here and scroll down, also here) point out some of the, shall we say, peculiarities in Professor Bernstein's remarks. I shall comment additionally on only one: I do not really understand why Professor Bernstein brought up my skepticism about evolutionary psychology, but it does not appear he has any idea about its grounds, since he adds (in his typical free-association style) that it "horrifies the far left because it suggests the lack of malleability of human nature." The argument of our paper, however, turned on the criteria for confirming selectionist explanations, the metaphysics of inference to the best explanation, and problems about the "level" of explanation needed to predict and control phenomena. It had nothing to do with the "malleability of human nature" (though it is probably true that some on the right are attracted to evolutionary psychology precisely because they think it confirms a picture of human nature they find morally attractive). Since Professor Bernstein has just gotten through complaining about what he deems my excessive sympathy for certain Marxian and Freudian theses, it might have occurred to him that both Marx and Freud had conceptions of human nature, and that Freud's rather robust one--most evident in Civilization and Its Discontents--involves a fierce denial of the "malleability of human nature." So the relevance of Bernstein's invocation of "the far left"'s dogmatic commitment to "the malleability of human nature" in the context of responding to me is what exactly?
ANOTHER: David McGowan (San Diego) sent me a link to his review of Professor Bernstein's free speech book. Pages 4-10 of the review suggest that Professor Bernstein's difficulty with references and context is not limited to his blog postings.
October 18, 2007
Three Former Professors Sue Ave Maria Law School, the School's Founder (Tom Monaghan) and Dean (Bernard Dobranski)
Here is a statement about the case from their attorney, Deborah Gordon:
Three professors from Tom Monaghan's Ave Maria School of Law filed a multi-part complaint against Thomas Monaghan, Bernard Dobranski and associated entities in Washtenaw County Circuit Court on Oct. 17. Monaghan serves as Chair of the Board of Governors and Dobranski is the President and Dean.
The three professors claim that they were removed from their positions in retaliation for their having reported illegal conduct by Monaghan and Dobranski to law enforcement and other governmental agencies, and for refusing to go along with Monaghan's attempts to improperly control the Board by permitting his private, conflicting interests to supersede the best interests of the law school, including his attempt to re-locate the school from Ann Arbor to property Monaghan owns and desires to develop in "Ave Maria Town" Florida. Monaghan has claimed that the Virgin Mary personally directed him to develop Ave Maria Town and Ave Maria University in Southwest Florida.
A faculty vote against the planned move in September 2006 and a vote of "no confidence" in Dean Dobranski in April 2006 have not deterred the illegal, improper activity.
Two of these professors were denied tenure by Dobranski even though they received the unanimous support of the tenured faculty. Tenured Professor Safranek was ejected from the building and his salary and benefits terminated. Dobranski and Monaghan did not even grant him a hearing. The suit alleges Professor Safranek has been subjected to false smears as part of the retaliation effort.
The suit also alleges that certain staff used their positions and law school resources to obstruct a criminal investigation into a priest's alleged involvement in sex offenses, including possession of child pornography, and that Professor Safranek reported this to law enforcement.
This lawsuit is the latest debacle in the collapse of Ave Maria School of Law. This past summer nearly 1/2 of the faculty fled or were removed from the school. Approximately 40 first year students transferred to other law schools (out of a class of 135), and the quality of the incoming class continued to decline. Dobranski was forced to hire a slew visitation professors and adjuncts to keep the school afloat.
The complaint, filed yesterday (but not yet served), is here: Download safranek_complaint.pdf . Things are going from bad to worse for Ave Maria.
October 17, 2007
Minneapolis-St. Paul: Dean Search Capital of the United States!