Do academic norms and politics mix? The case of Richard W. Painter (UPDATED AGAIN, 7/30)

Prior to last week, I'd never had (to my recollection) any interaction with Professor Richard Painter of the University of Minnesota, a moderately well-known expert on corporate law and legal ethics.  As some readers will recall, Professor Painter had the dubious distinction of agreeing to serve as the White House ethics lawyer for George W. Bush in 2005-2007 (i.e., after the unlawful war of aggression against Iraq).   But in more recent years, he's been on the side of the angels, crusading against corruption in the Trump Administration.  In 2018, he entered electoral politics, running against the incumbent Senator Smith in Minnesota in the primary, albeit losing by a large margin.

For reasons unknown to me, on July 22, Professor Painter called attention to a blog post of mine from February of this year regarding the controversy over Professor Mark Ramseyer's revisionist view of Japan's use of "comfort women" during WWII, which appeared in the peer-reviewed International Review of Law & Economics.  Professor Ramseyer's article has been subjected to severe criticism by other scholars.  That is how academic life and academic freedom works:   scholars get to publish their views, and other scholars get to respond.  Scholars also get to be wrong, including seriously wrong.  The hard question raised by L'Affaire Ramseyer is how, consistent with academic freedom and scholarly norms, we make decisions to retract after peer-reviewed publication.  My view, expressed in the earlier post, is that the standard for retraction should be intentional wrongdoing, such as fraud.  (Plagiarism, intentional or otherwise, should also be grounds for retraction as well, since it can be clearly established in any case that warrants retraction.)  The reason is fairly obvious:  every scholarly dispute could be turned into a demand for retraction absent the higher bar I propose. And in that world, publication after peer review would not mean very much.

In any case, Professor Painter was livid, not only at the "shocking arrogance" of one of the editors of the journal that published Ramseyer's article (Penn's Jonathan Klick), but at law & economics scholars and game theorists generally (and again)!  He declared that the editor who accepted Ramseyer's article must be a "sick puppy."  Professor Painter pronounced that, "Neither Leiter nor Klick knows what he's talking about. Academic articles with demonstrably false claims are retracted by reputable journals."   He cited no examples, which is not surprising:  outside of articles involving mathematical or calculation mistakes, almost all cases of retraction I have seen involve intentional wrongdoing by the authors (e.g., fabricating evidence or data) or plagiarism.  In addition, very few of the specific claims in Professor Ramseyer's article are "demonstrably false," although the critique linked above raises serious doubts about several of them, about his overall thesis, and about the quality of the scholarship (most of the critiques pertain to the interpretation of evidence, the omission of evidence, cherry-picking evidence, and not to falsehoods per se).  If we credit all the claims of the critics (at this stage, I see no reason not to), Professor Ramseyer's use of evidence was selective, and occasionally quite unreliable; and his citation practices were poor.   These are serious criticisms, but they do not add up to a case for retraction of the article after it passed peer-review:  they warrant published replies and perhaps an erratum for one or two claims that seem clearly misleading given the evidence (e.g., the apparently false claim that the girl Osaki was not deceived by recruiters).  If the criticisms survive scrutiny, Professor Ramseyer's reputation and that of the journal will suffer. 

I had a bit of Twitter back-and-forth with Professor Painter about this on Friday evening July 23, but when it became clear he wasn't being remotely serious (he was even chided by Professor Garrett Epps (Baltimore) for his mocking me as a quote-unquote-moral philosopher), I said "good night" and invited him to get in touch if he wanted to have a serious debate about the norms governing retraction of peer-reviewed articles.  He did not take me up on that offer.

It had struck me as funny that the guy assuming the "moral high ground" in this debate had chosen to be a lawyer for a President who, unlike even Trump, had committed a classic Nuremberg war crime; alas, my joking about that clearly got under his skin.   Although I had long since stopped responding to Painter, twelve hours later--first thing Saturday morning--he informed his 700,000+ Twitter followers that I was a "crackpot" who "when confronted...quickly slithered away into oblivion"; a "nihilist and extremist" for objecting on academic freedom grounds that a law school Dean should not be asking faculty to sign onto a statement about racism; a "scared kitten;" and suggested (based on nothing I said or did) that I was going to "rank" him unfavorably in order to silence him.  He then resumed with the same on Sunday morning, adding "ignorant misogynist" and comparing me to a "Holocaust denier" to the litany of insults and abuse.  48 hours later, first thing Monday morning, he resumed again with comparisons to Holocaust denial (and with zero awareness, of course, of either the evidence about police killings or the academic freedom issues involved when Deans solicit faculty to sign statements). 

I guess this kind of pandering to partisans works on Twitter, but in the adult world, it looks pretty weird!    

Anyone who recalls Trump's Twitter modus operandi will note the irony that Professor Painter seems to have adopted it wholesale:  he's incredibly thin-skinned, his reaction to criticism is wildly disproportionate, everything is "black and white" for him (no nuance in this world!), and opponents are subjected to childish insults and ridicule.  I am reminded of Nietzsche's quip: "Beware that, when fighting monsters, you yourself do not become a monster...." Or to quote Professor Painter's Twitter role model:  "Sad!"

Again, as Twitter behavior by mindless political partisans goes, neither Painter's nor Trump's is that surprising.  What distinguishes the cases, of course, is that Painter, unlike Trump, is a professor and purportedly a serious professional, not simply a shameless political hack.   His conduct in this affair does make one worry, however, that he may have lost all sense of what it means to reflect in a careful and nuanced way about academic norms, in this case, norms governing the question of when retraction of a peer-reviewed article (even a bad one) is warranted. 

Consider this tweet:

Of course, no one said "a journal should publish an article" on academic freedom grounds; the question is what norms of retraction apply to an article that went through peer review.   Presumably even Professor Painter agrees that moral outrage about the content of an article is not grounds for retraction.  Retracting an article on grounds of moral outrage is inconsistent with the core idea of academic freedom, namely, that scholars in various disciplines can express their views without sanction, as long as they adhere to the relevant disciplinary standards.  That is what the debate is actually about:  did Ramseyer violate disciplinary standards? Did his article involve intentional misrepresentation of or misuses of evidence?

All of this is lost in Painter's Manichean and dishonest framing:  his opponent is simply a misogynist who think academic freedom demands publication of a defamatory article.  I'm sure if Painter pulled a rhetorical trick like this in a workshop at the University of Minnesota, he would be laughed out of the room.  That he pulls it on Twitter does make one wonder to what extent his foray into political polemics has impaired his academic judgment.

Will he embarrass himself further in response to this expose of his behavior, or will he perhaps demonstrate that he is still a part of the academy?  We'll find out.

AN AMUSING ASIDE:   Painter became so obsessed with me this past weekend that, upon realizing that I work on the philosopher Nietzsche, he started posting quotes from Nietzsche too, suggesting they are responsible for Nazism (he's too ignorant to realize the quote comes from an unpublished early text, that does not represent Nietzsche's mature views).  He apparently looked up my most recent book, and decided the views of Nietzsche I defend are responsible for Trump (he quotes them verbatim from the book description).  (Amusingly, "David Hume" offered a rejoinder to Painter on Twitter!)  He also discovered, in his "through a glass darkly" way, Pyrrhonian skepticism, and decided that too was responsible for Trump.  This childish foolishness does seem to play well with his Twitter followers, however.

UPDATE (7/27/21):   So in the 24 hours after I posted this expose, Professor Painter referred to me as "ignorant and apathetic;" continued to misrepresent the academic freedom issue of Deans soliciting faculty signatures for political statements; and called me the "nuttiest person on Twitter" in the past week.   That actually does mark an improvement over the prior 48 hours of unhinged behavior!   One thing Professor Painter did not do, however, is link to this response, and for the obvious reasons.  After this appeared yesterday morning, he did try to whitewash his Twitter jihad of the prior 48 hours, and described my writing about him here as "retreating" (but no longer as a "scared kitten"!).  The idea that posting on the blog is "retreating" is funny in various ways, but I will note I have been posting on Twitter this whole time, just not engaging him, since he's not a serious person.  (I don't even understand his Trump reference in the preceding--only one example of his litany of abuse of me was even vaguely Trump-related [despite his explicitly comparing me to Trump in other tweets!]--but I guess it is because of my obviously apt observation that his Twitter modus operandi is Trumpian.)

I got several amusing emails from colleagues about Painter's display.  One wrote with a variation on the remark often attributed to George Bernard Shaw:  “Never mud wrestle with a pig,  You both get dirty, and the pig likes it.”  That is, indeed, a risk of even commenting on this:  but the actual issue (norms for retraction of peer-reviewed articles) is an important one for scholars; and Painter's bad behavior deserves to be known by his colleagues in the academy.   Another observed that "the difference is that Ramseyer, while perhaps something of a Japanese apologist (he grew up there), is still pretty much a serious scholar.  By contrast I think Painter sort of made a transition to being a Tweeter/political operative, I don’t think this is the first time he’s been intemperate by any means.  I’m not sure how much I’d want to engage with him." I certainly wouldn't recommend anyone engage him on Twitter, and, as I've since learned, he's pulled his Trumpian routine with other academics.   This whole episode does confirm that he's abandoned the scholarly life for politics and social-media buffoonery.

Professor Jonathan Klick (Penn) kindly gave permission to share his own experience with Professor Painter, and it does confirm the preceding:

I tried to engage with Painter early on, but he struck me as either dishonest or blinded by righteousness. With no real relevance to the Ramseyer stuff, he twitter-shit on my old empirical work on abortion access and risky sex/STDs (in Journal of Legal Studies) so I offered to send him the data and asked him what his criticisms were.  Instead of engaging on the merits, he basically said such work should only be done by physicians and female ones at that.  I asked him why then he feels free to write about corporate finance/securities stuff when he clearly has no finance training?  He had no good principled arguments about when it’s ok for people to write in a particular area.  Interestingly, he complimented me on my empirical methods work on securities fraud.  I think it is fairly clear he evaluates research on whether it arrives at conclusions he likes (our securities fraud stuff probably makes it easier for plaintiffs to bring/win cases).

(Addendum:  a reader points out that after reading this update, Professor Painter decided to take yet another "Twitter shit" on Klick's work!)

ANOTHER (7/28/2021):  A couple of hours after yesterday’s update, Painter went on another Twitter rampage.  No need to rehearse the details again, as his rhetorical armory is severely limited, so predictable.   I’ll give, however, two examples of his unwillingness to engage in honest discussion, which indicates how far gone he is qua academic.   The question of when peer reviewed articles should be retracted is transmogrified by Painter into this ("same man" is a reference to me, clear from the prior tweet):

Of course, I never said anything like that, yet alone "insisted" it. 

And my claim that, for reasons of academic freedom, law school Deans should not solicit their faculty to sign political statements about racism, is transmogrified into this:

There's an obvious pattern to his dishonesty, but it does make it ironic that he has positioned himself as an "ethics" expert:   like Trump, he observes no ethical limits on how he treats or represents other people on Twitter--not just me, but Professor Klick and others.

THE DENOUEMENT (7/30/21):  The former academic and now professional obsessive Tweeter Richard Painter finally started to calm down when he thought he had asserted his Twitter dominance over me the other day.   Let me explain.

For several days, Painter had been retweeting, out of context, one part of an exchange (from last May no less!!!) I had been having with another law professor about whether it was appropriate for Dean Osofsky at Penn state to solicit faculty to sign a political statement:  in this case, a statement asserting, among other things, that racism explained the murder of George Floyd.  At the University of Chicago, the Kalven Report (authored by a leading First Amendment scholar at the university) is one of the central documents on academic freedom, and its core idea is exactly right:  "The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic."   In order to encourage maximum freedom to "dissent," those who speak for the university--Presidents, Provosts, Deans--are not themselves to act as critics.  No Dean here would ever dream of trying to corral faculty into signing such a letter.  I've discussed these academic freedom issues at length on the blog.

Painter seized on one tweet in this longish exchange in which I summarized the point, noting that the claim that racism explains the killing is contestable, and faculty will have different views on it, so the Dean should not be proclaiming the "official" interpretation of the event, lest she effectively silence other faculty.   For Painter, it was beyond the pale to point out the obvious fact that the role of racism (or systemic racism) in the killing is a topic on which people far more intelligent than Painter have differing views.  Ignoring the academic freedom issues entirely, Painter repeatedly retweeted this one remark of mine, presenting it as racist, outrageous, stupid, etc.  (You can see Painter's idea of evidence here and here.  It's a good thing he doesn't teach that subject!)  Each time Painter would retweet it, his acolytes would post rude remarks on my Twitter feed (one even decided to respond to a tweet memorializing the death of a philosophy professor by insulting me--charming crowd!).  By deleting my earlier tweet, I deprived Painter of the ammunition.

Literally within less than a minute of my deleting the tweet, Painter pounced:

Put aside that the tweet was not "racially insensitive," Painter had never asked for it to be retracted:  to the contrary, he was repeatedly using it to generate some abuse by his mindless followers.  Lest the reader think that his "Thank you" meant that this smear merchant was suddenly taking the high road, rest assured it didn't last.  There followed a series of gloating tweets, in which the Alpha Dog of Twitter celebrated--in classic Trumpian fashion--his apparent victory (he even called me a "wimp" for deleting the tweet!), including such gems as:

Of course, no one had said anything about "academic freedom" insulating someone from criticism.  And Richard didn't hold anyone "accountable," he was just stirring the Twitter pot through selective quotation and without engaging any of the actual issues about academic freedom.  Periodic Twitter snipes at me have continued since, although not at the same frenzied pace as earlier this week:  as the kids today say, I'm apparently living "rent free in his head."

Someone like Painter--who has clearly abandoned the academic life in favor of politics and Twitter buffoonery--presents a challenge for an academic institution.   If he's still doing the job for which he collects a salary, then he can't be disciplined for his bad behavior:  all his Twitter bloviating is covered by the protection academic freedom affords extramural speech.  But his penchant for "Twitter-shitting" (to quote Jonathan Klick, above) on other academics and their work, plus his childish and obsessive behavior (the preceding just scratches the surface*), obviously damages his own reputation and to some extent the reputation of his school.  (The latter is unfair, of course, since, as I've learned over the last few days, some of his colleagues just roll their eyes at his shenanigans and view him as beyond reason.)  There is no easy way, consistent with academic freedom, for a school to handle a situation like this.  The best news is that Painter's primary audience seems to be the anti-Trump crowd rather than academics or scholars.  One reason he had a meltdown earlier this week is, no doubt, because the entire legal academy now knows what he is really doing with his time.

I'll conclude with an email I received from another law professor who was targeted for abuse by Painter:  "As Kamenev is supposed to have said about Stalin: 'My fondest wish is that he forget that I exist'....I applaud your willingness to take him on. My own temperament leads me to just try to stay out of his way as much as I can. He seems to require even less provocation than Trump before he starts to explode at someone."

(Yet more on Painter here.)

*Other examples:   When I linked a few days ago to this post on Twitter, noting that it documents Painter's "meltdown," he began accusing me of having a meltdown; in general, he's been accusing me of what he himself does, in a way that's transparent to anyone who has read this piece and looked at the evidence.  He's been searching the web for anything to insult me with, no matter how dubious, discredited or irrelevant, even citing Above the Law!  He's also extremely paranoid, imagining that I have been calling his colleagues (Richard:  that's not been necessary, most of them read my blog).  He does endless faux tough-guy posturing on Twitter: he won't be intimidated, he's not scared, I'm a "wimp," etc.   I confess I was shocked to realize this man is almost 60 years old, and yet spends what must be 12 hours per day acting like this on Twitter.  As I remarked a few days ago on Twitter, he needs an "adult intervention."