December 19, 2018
Samuel Moyn (Yale): Law schools are too focused on public law to serve the public interest (Michael Simkovic)
In a thought provoking essay in the Chronicle of Higher Education, Professor Samuel Moyn argues that law schools' focus on judge made law in general, and the Supreme Court in particular, is counterproductive especially when justified on ostensibly progressive grounds. Offline, Professor Moyn suggested that, to better help students understand how the legal system influences the distribution of economic and political power, progressives should focus more on teaching business law subjects like taxation and anti-trust.
Samuel Moyn, Law Schools Are Bad for Democracy: They whitewash the grubby scramble for power, Chronicle of Higher Education, Dec. 16, 2018.
March 14, 2018
"Academic Freedom and the Obligations of University Administrators" especially regarding faculty speech
MOVING TO FRONT FROM MARCH 12: UPDATED
A different wrinkle on this issue is presented by the new allegations that Prof. Amy Wax (Penn) has disparaged the academic performance of African-American students at her law school. Here academic freedom affords her no protection: any identifiable group of students at a school has a right not to be openly disparaged for its competence by faculty or administrators at their institution, and the Administration should both correct the record and would be within rights, in my view, to take disciplinary action against Prof. Wax (I do not think this is an offense justifying termination, but lesser disciplinary steps would be warranted). Think of it in Pickering terms: faculty disparagement of some identifiable portion of the student body interferes with the school's core functions, including helping members of the disparaged group find suitable employment upon completion of their education. (Contrary to the letter from the Penn alumni and students, it is not clear to me that Prof. Wax's statements violate the "anonymous grading policy," if the Penn one is like that at most schools: exams are marked without knowing the student's identity, but after the grades are turned in, the professor learns how each student performed. On the other hand, students have a reasonable expectation and entitlement, perhaps even protected by FERPA [I'm less sure about that], not to have their academic performance disclosed to third parties by the faculty member.)
UPDATE: Is Prof. Wax the Ann Coulter of the legal academy? Her colleague Tobias Wolff comments.
ANOTHER: Penn's Dean Ruger has removed Prof. Wax from teaching required 1L classes. As a punitive measure, that seems rather mild, given the breach of professional obligations involved, but perhaps he is taking other actions as well. A good line from Dean Ruger's statement:
Our first-year students are just that – students – not faceless data points or research subjects to be conscripted in the service of their professor’s musings about race in society.
January 30, 2018
In light of the current interest in the general topic, many readers will find Professor Sadurski's knowledgeable discussion of the situation in Poland illuminating and instructive.
(Thanks to Tomasz Gizbert-Studnicki for calling it to my attention.)
January 24, 2018
Retired attorney Bruce Craig would welcome hearing from law professors interested in the following issue (you may reach Mr. Craig at brucecrai-at-gmail-dot-com):
As a former assistant attorney general (Wis.) I litigated against a number of pyramid schemes starting in 1968 and ending, for all practical purposes, in 1979 when the FTC ruled in favor of Amway. Now retired, living in New York, and still involved with this issue to a limited extent.
Since 1979, and Reagan, Amway has become a $9 billion/yr world-wide operation, the overall industry's annual revenues about $150 billion. Qualified estimates indicate that the loss ratio of participants in these operations exceeds 95%.
Not only has this made the pyramid owners billionaires but, as a direct result, it has also funded a political and governmental machine that has fundamentally suppressed any meaningful enforcement or legislative oversight. This is primarily the result of the victims of these schemes being politically invisible to both sides of the aisle and ignored on the basis they didn't work hard enough. Victims seldom file complaints as they feel they were part of an illegal process and involved family members and friends.
The press has primarily focused on disputes between Wall Street titans and not on the ethical and legal underpinnings which have enabled this to happen. Unfortunately, it appears the legal academia has not examined this as well.
At present, there is no formal legal distinction between pyramid schemes and "Multi-Level Marketing", with limited enforcement only after the fact. This phenomenon has enabled those not yet sued to claim they are legal MLM and not illegal pyramid schemes.
Given the significant and continuing massive losses, incurred by those mostly in the lower part of the middle class. This note is to inquire whether legal scholars might be interested in exploring the issue. From a philosophical standpoint I've noticed that the investment and financial communities seem to ignore the underlying damage caused by those listed on the NYSE.
This is far beyond my competence, but I offered to share this with the community of legal scholars and legal theorists, some of whom might be able to help.
December 05, 2017
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. 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.
November 22, 2017
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.
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.
September 04, 2017
June 06, 2017
...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.
April 06, 2017
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.)