December 05, 2017

Why academic freedom?

Once again into the fray.  A brief excerpt from the paper:

The main threats to academic freedom in the natural sciences in the capitalist democracies come from powerful business interests that disfavor, for profit-seeking reasons, certain discoveries:   for example, concerning the human contribution to climate change, to take the most important example in the present, but also findings about the inefficacy of particular pharmaceuticals and medical treatments.   Businesses have a strong interest in the correct natural scientific understanding of the causal order of nature, to be sure, since the extraction of profit from nature requires it.  At the same time, businesses also have strong interests in concealing certain scientific results that might impede popular acceptance of their business practices and consumption of their products.  Academic freedom is a crucial bulwark in favor of discovering truths about the natural world even in the relatively free capitalist societies.

 

In the human sciences, the issues are usually different:  it is, shall we say, rare for international corporations to get exercised about the latest developments in the history of early modern Europe or philosophy of the social sciences.  The threats to academic freedom in the human sciences come less from the business sector, and more often from political and religious interest groups whose normative commitments are threatened by the findings of the human sciences.   In the United States, for example, external pressure is frequently brought upon universities who try to employ critics of Israeli policy towards the Palestinians.[1]   But the pressure to violate academic freedom comes from within the universities too.   Indeed, some humanists have concocted a whole new metaphysics of “silencing” and “marginalizing” and “violence” to describe the expression of ideas that are offensive and insulting to certain minority groups.  For these academic insiders, Marcusian “indiscriminate” toleration in academic discourse is not acceptable, since the expression of ideas that might be hurtful to individuals based on group membership—in particular, membership in groups that have been victims of historical practices of subordination (e.g., African-Americans in the United States, though more recently, transgender individuals)—is alleged to “silence” members of that group and do “violence” to them.   

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December 5, 2017 in Jurisprudence | Permalink

November 22, 2017

Langdell, formalism, and realism at Harvard

Here's a video of the session from a couple of weeks ago as part of the HLS bicentennial.  Opening remarks about Langdell are by John Goldberg (Harvard), who is followed by Catherine Wells (Boston College), me, Anthony Sebok (Cardozo), and Henry Smith (Harvard).  For those interested, my remarks on "Langdell, Wissenschaft, Realism" begin at 19:20.  I found Smith's remarks about the role of a firmer law/equity distinction in Langdell's views especially interesting.


November 22, 2017 in Jurisprudence | Permalink

September 29, 2017

How should a Dean who understands academic freedom respond to public controversy about faculty writing?

So we know from the unhappy example of Dean Ferruolo throwing a faculty member under the bus what not to do:  you don't publish a statement on the homepage of the school singling out a faculty member's work, declare that not only do you, as Dean, disagree with it, but suggest that these are pariah views in "our law school community", and imply that the offending views may implicate "racial discrimination" and persecution of the "vulnerable" and "marginalized."  Making an obligatory reference to academic freedom in passing does not undo the damage that this decanal misconduct causes. 

The job of administrators is not to share their opinions about the views of members of the faculty, but to administer a university environment in which faculty and students may express points of view that do not otherwise violate anti-discrimination, sexual harassment or other laws.  (The silly op-ed did not violate any applicable law obviously).  So one obvious, and preferable, option would have been for the Dean to make no public statement at all.  He could have met with concerned student groups, and educated them about academic freedom and reaffirmed institutional policies about equal opportunity.  If a Dean makes any public statement in the context of such a controversy, it should not include any comment on a faculty member's views; it would suffice, for example, to simply reaffirm the institution's commitment to equal opportunity for all students and the like.

The Kalven Report got it exactly right fifty years ago, and all administrators ought to read and think about it.  The university sponsors critics, it is not itself a critic or advocate (except for that narrow range of issues central to the university's function).   A Dean, or other university administrator, forfeits his academic freedom upon becoming Dean--in part, because Deaning is not a scholarly enterprise but an administrative one, and academic freedom exists only to protect the scholarly pursuit of truth.  As an administrator, the Dean's job is to protect academic freedom and protect an environment in which faculty and students can express their views in the appropriate fora, such as the classroom, scholarship, and sometimes in the public sphere.   In order to preserve a community of open and vigorous debate, the Dean must not lend his authority to one side or the other.   That there is an uproar about a faculty member's scholarship or op-ed does not mean the Dean must speak out, except perhaps to educate people about what a university is and what academic freedom is and why it matters.

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September 29, 2017 in Faculty News, Jurisprudence, Of Academic Interest, Professional Advice | Permalink

September 04, 2017

"Legal Positivism about the Artifact Law: A Retrospective Assessment," the final version...

...is now on SSRN.


September 4, 2017 in Jurisprudence | Permalink

June 06, 2017

"Justifying Academic Freedom: Mill and Marcuse Revisited," revised version now on-line...

...here.  The last version benefitted from talks and workshops at Iowa, Tel-Aviv, Haifa, and Chicago.  The abstract:

I argue that the core of genuinely academic freedom ought to be freedom in research and teaching, subject to disciplinary standards of expertise. I discuss the law in the United States, Germany, and England, and express doubts about the American view that distinctively academic freedom ought to encompass "extramural" speech on matters of public importance (speakers should be protected from employment repercussions for such speech, but not because of their freedom qua academics).

I treat freedom of academic expression as a subset of general freedom of expression, focusing on the Millian argument that freedom of expression maximizes discovery of the truth, one regularly invoked by defenders of academic freedom. Marcuse argued against Mill (in 1965) that "indiscriminate" toleration of expression would not maximize discovery of the truth. I show that Marcuse agreed with Mill that free expression is only truth- and utility-maximizing if certain background conditions obtain: thus Mill argues that the British colony in India would be better off with "benevolent despotism" than Millian liberty of expression, given that its inhabitants purportedly lacked the maturity and education requisite for expression to be utility-maximizing. Marcuse agrees with Mill that the background conditions are essential, but has an empirical disagreement with him about what those are and when they obtain: Mill finds them wanting in colonial India, Marcuse finds them wanting in capitalist America.

Perhaps surprisingly, Marcuse believes that "indiscriminate" toleration of expression should be the norm governing academic discussions, despite his doubts about the utility-maximizing value of free expression in capitalist America. Why think that? Here is a reason: where disciplinary standards of expertise govern debate, the discovery of truth really is more likely, but only under conditions of "indiscriminate" freedom of argument, i.e., academic freedom. This freedom is not truly "indiscriminate": its boundaries are set by disciplinary competence, which raises an additional question I try to address.

In sum, the libertarians (Mill and Popper) and the Marxists (Marcuse) can agree that academic freedom is justified, at least when universities are genuine sites of scientific expertise and open debate.


June 6, 2017 in Jurisprudence | Permalink

April 06, 2017

More on Judge Gorsuch, plagiarism, and Oxford

Leslie Green, who holds one of the two statutory (i.e., university-wide) Chairs in Philosophy of Law at Oxford, has now expanded on his thoughts about the Gorsuch plagiarism case and the claims of John Finnis (who held a personal chair in legal philosophy, but is now emeritus).  (Earlier posts here and here.)


April 6, 2017 in Jurisprudence, Legal Profession, Of Academic Interest | Permalink

April 05, 2017

On Judge Gorsuch's plagiarism

In fact, plagiarism is not, contrary to John Finnis, normal practice at Oxford.  This also is irrelevant to his nomination, but the Judge should acknowledge the error.


April 5, 2017 in Jurisprudence, Of Academic Interest | Permalink

March 31, 2017

"Justifying Academic Freedom: John Stuart Mill and Herbert Marcuse Revisited"

A new draft paper that may be of interest to some readers; the abstract:

I argue that the core of genuinely academic freedom ought to be freedom in research and teaching, subject to disciplinary standards of expertise. I discuss the law in the United States, Germany, and England, and express doubts about the American view that distinctively academic freedom ought to encompass "extramural" speech on matters of public importance (speakers should be protected from employment repercussions for such speech, but not because of their freedom qua academics).

I treat freedom of academic expression as a subset of general freedom of expression, focusing on the Millian argument that freedom of expression maximizes discovery of the truth, one regularly invoked by defenders of academic freedom. Marcuse argued against Mill (in 1965) that "indiscriminate" toleration of expression would not maximize discovery of the truth. I show that Marcuse agreed with Mill that free expression is only truth- and utility-maximizing if certain background conditions obtain: thus Mill argues that the British colony in India would be better off with "benevolent despotism" than Millian liberty of expression, given that its inhabitants purportedly lacked the maturity and education requisite for expression to be utility-maximizing. Marcuse agrees with Mill that the background conditions are essential, but has an empirical disagreement with him about what those are and when they obtain: Mill finds them wanting in colonial India, Marcuse finds them wanting in capitalist America.

Perhaps surprisingly, Marcuse believes that "indiscriminate" toleration of expression should be the norm governing academic discussions, despite his doubts about the utility-maximizing value of free expression in capitalist America. Why think that? Here is a reason: where disciplinary standards of expertise govern debate, the discovery of truth really is more likely, but only under conditions of "indiscriminate" freedom of argument, i.e., academic freedom. This freedom is not truly "indiscriminate": its boundaries are set by disciplinary competence, which raises an additional question I try to address.

In sum, the libertarians (Mill and Popper) and the Marxists (Marcuse) can agree that academic freedom is justified, at least when universities are genuine sites of scientific expertise and open debate.


March 31, 2017 in Jurisprudence | Permalink

March 29, 2017

"Naturalism in Legal Philosophy" revised and updated at Stanford Encyclopedia of Philosophy (SEP)

It's also now co-authored with Max Etchemendy, our Law & Philosophy Fellow this year at Chicago.  SEP is a uniquely excellent on-line resource; I commend it to readers looking for high-level introductions to almost any topic in philosophy.


March 29, 2017 in Jurisprudence | Permalink

March 18, 2017

"The Roles of Judges in Democracies: A Realistic View"

A new paper that might be of interest to some readers; the abstract:

What are the “obligations” of judges in democracies? An adequate answer requires us to be realistic both about democracies and about law. Realism about democracy demands that we recognize that electoral outcomes are largely, though not entirely, unrelated to concrete policy choices by elected representatives or to the policy preferences of voters, who typically follow their party based on “tribal” loyalties. The latter fact renders irrelevant the classic counter-majoritarian (or counter-democratic) worries about judicial review. Realism about law requires that we recognize that judges, especially on appellate courts, will inevitably have to render moral and political judgments in order to produce authoritative resolutions of disputes, one of the central functions of a legal system in any society. That means it is impossible to discuss the “obligations” of judges without regard to their actual moral and political views, as well as the moral and political ends we believe ought to be achieved.


March 18, 2017 in Jurisprudence | Permalink