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Saturday, September 15, 2007
A Few Challenges to Harvard Professor J. Lorand Matory:
Prof. Matory wrote an extremely tendentious piece for the Harvard Crimson complaining about alleged suppression of anti-Israel viewpoints.
Here are the challenges:
(1) Professor Matory writes: "Israel has now withdrawn from Gaza, an action that [former Harvard President Larry] Summers slammed Harvard and MIT professors as anti-Semitic for even contemplating." Prof. Matory, exactly when, where, and in with what words did Summers "slam" Harvard and MIT professors for "contemplating" Israeli withdrawal from Gaza? I do recall Summers slamming some professors at these schools for calling for divestment from companies with Israeli holdings (but not from any other countries with much worse human rights records). But calling for divestment from Israel bears only the most tenuous resemblance to "contemplating Israeli withdrawal from Gaza." To try to find a tenuous relationship, can you name even one divestment supporter who changed his or her mind when Israel withdrew from Gaza?
(2) Professor Matory also writes: "If Israel's defenders convince the world that all legitimately Jewish people are Zionists and that Jewish people are uniform in their opinions about Israel and its policies, then the convinced will conclude that condemning Israel or its policies requires them to hate Jewish people." Prof. Matory, if all Jews did have uniform pro-Israel views, do you really mean to suggest that this would justify people who "condemn Israel or its policies" hating Jewish people? And while Jewish people don't by any means have uniform opinions about Israel, doesn't what you wrote suggest that those who "condemn Israel or its policies" are justified in hating the Jewish people who DO support Israel (or its policies)? And doesn't that contradict your thesis that its unfair to conflate anti-Semitism and anti-Zionism? If being anti-Israel (or its policies?) logically leads to the hatred of Jewish people who are pro-Israel, it hardly seems a stretch to associate anti-Zionism with anti-Semitism, does it? Or is "hating only Jewish people who support Israel" sufficiently distinct from anti-Semitism in your mind?
(3) Finally, Professor Matory writes: "My aim here is not to preach but to insist upon my right, and others', to a conversation full of respect and free of intimidation, one that presumes no monopolies on suffering, one in which all racism and anti-Semitism-whether against Semitic Jews, Semitic Christians, Semitic Druzes or Semitic Muslims-is equally impermissible." Everyone knows, or (certainly if they are a distinguished Harvard professor writing about anti-Semitism) should know, that anti-Semitism is a phrase with roots in German racist theories of the 19th century that unfavorably compared Jewish "Semites" with German aryans, and that anti-Semitism specifically means prejudice against Jews. Intentionally misusing the phrase in this way is a cheap rhetorical trick designed to make Jews look self-absorbed and heartless by claiming that they have somehow appropriated all "anti-Semitic" prejudice to their own cause, neglecting prejudice faced by Arabs and other "Semites". Are you completely unaware of this dynamic? If not, is this your way of expressing your good will toward Jews (so long as they are not "Zionists")? And with regard to "intimidation," I suppose there is no "intimidation" involved in suggesting that Jews who support Israel logically deserve whatever hatred they get (see number (2)), nor is it at all disrespectful?
Professor Matory says that "what follows is the most important question for the health of the academic and moral community that we share here at Harvard: How can one engage in a critical and nonetheless loving conversation about Zionism with a community as gravely traumatized as the Jewish people?" I don't know the answer, but personally I'm not feeling the love. [How about starting by not completely misrepresenting what Summers said, not suggesting that people critical of Israel logically hate pro-Israel Jews, and not playing silly rhetorical games with the phrase 'anti-Semitism'"?]
UPDATE: This is apparently not the first time Matory has been, ahem, creative, in describing Summers' remarks. And Matory was one of the leaders of the anti-Summers movement, providing further evidence of what a great moment it was in the history of the American academy when Summers was forced out by a majority of the Harvard faculty.
Chemerinksy Update:
According to the L.A. Times, UC Irvine is working on a possible deal to rehire liberal legal scholar Erwin Chemerinsky as its dean. Meanwhile, Chemerinsky himself had an op ed in yesterday's LA Times telling his side of the story, and reaffirming his claim that UCI Chancellor Michael Drake told him that the original offer was rescinded because of his liberal political views. This directly contradicts Drake's own account, which holds that political issues had nothing to do with the decision, but failed to provide any alternative explanation.
On balance, I welcome UCI's move to rehire Chemerinsky, which seems to me at least an implicit admission that decision to rescind his offer was a mistake and (probably) motivated by misplaced concerns over his ideology.
At this point, I probably will not be doing any more Chemerinsky blogging, as I don't have any inside information not available to the general public, and the points that I might be interested in making are likely to be made just as effectively by others. I will blog about it again only if I have something original to say.
For those interested in continuing to follow this issue, Paul Caron of TaxProf Blog has been posting regular, detailed updates.
New York Times Descends Into Parody--Literally:
Today's "Corrections" page in the New York Times contains the following:
Correction
Published: September 15, 2007
An article last Saturday about Dartmouth College’s governance structure incorrectly described a Web site congratulating Todd J. Zywicki, a trustee, for meeting with members of the Phrygians, a secret society, and discussing possible actions against the college administration. It was a hoax site, not an official Phrygian site. Mr. Zywicki says he met several times with the Phrygians, but did not discuss actions against the administration.
The "Phrygian Society" is a senior secret society at Dartmouth--there are several of them and they traditionally have been single-sex (by the way, I meet with a lot of student groups). Apparently this reporter thought that a secret society would have a completely public website with pictures, meeting minutes, and the like.
It appears that the reporter let her political biases (which are strongly reflected in the original story) get out in front of her reportorial good judgment. Would you expect, for instance, that Skull & Bones at Yale would have a website at skullandbones.org where they posted pictures of their meetings?
For those who read the original story last weekend, therefore, please be aware that the website that was posted was a complete hoax as was all of the "substance" of the puported meeting that took place. My understanding is that the website is actually set up by a member of the Jack-O-Lantern, the Dartmouth humor magazine, and that they have established similar sites for other Dartmouth-affiliated groups.
"Rigging A Study to Make Conservatives Look Stupid":
Over at Slate, William Saletan takes a critical look at recent studies that purport to show liberals are smarter than conservatives.
If a Tree Falls in the Suburbs, Who Is Liable?
Virginia has become the latest state to adopt the rule that landowners can be liable when trees on their property cause damage to neighboring properties. In the past, most states used the "Massachusetts rule," which held that if a tree grew on your property but the branches hung into your neighbor's yard, that neighbor could cut them back as far as the property line. If the roots cracked the neighbor's patio or if the branches ripped their siding, it was their problem. And if the neighbors' pruning killed your tree, you could sue them for damages.
Maryland and the District still follow the Massachusetts rule, according to officials there.
Virginia's 1939 law was slightly different. Under that law, which was overturned yesterday, a landowner could sue a neighboring tree-owner only if the tree was "noxious" and caused "sensible injury." A big problem, however, was that no one ever defined a "noxious tree." [Note: Post initially accidentally published when incomplete.]
Whom Did Opus Offend?
The Washington Post ombudsman, Deborah Howell, investigates the reasons the Post and other papers refused to run two recent installments of Berke Breathed's "Opus" comic strip. The purported justification was that the strips could be offensive to Muslims. Yet as Howell discovers, it does not seem that Muslims were offended.
Ibrahim Hooper, spokesman for the Council on American-Islamic Relations, a civil rights and advocacy group, wasn't offended. " 'Opus' poked fun at the strip's characters, not Muslims or Islam. I see hundreds worse on the Internet every day," he said.
Akbar Ahmed, chair of Islamic studies at American University, also wasn't offended. He said there is a strong Muslim tradition of satire and self-deprecation. "I think there is a danger of us becoming so politically correct that we end up by blunting the critics' bent and the satirists' wit. Muslims need to be sensitive to the fact that in Western culture there is a healthy tradition of not taking things too seriously."
Are Most Scientific Studies Sloppy?
This week's "Science Journal" column in the W$J (link for subscribers) reports on the interesting and provocative research of John Ioannidis, who argues that the results of most published scientific studies are wrong.
Dr. Ioannidis is an epidemiologist who studies research methods at the University of Ioannina School of Medicine in Greece and Tufts University in Medford, Mass. In a series of influential analytical reports, he has documented how, in thousands of peer-reviewed research papers published every year, there may be so much less than meets the eye.
These flawed findings, for the most part, stem not from fraud or formal misconduct, but from more mundane misbehavior: miscalculation, poor study design or self-serving data analysis. "There is an increasing concern that in modern research, false findings may be the majority or even the vast majority of published research claims," Dr. Ioannidis said. "A new claim about a research finding is more likely to be false than true." . . .
Statistically speaking, science suffers from an excess of significance. Overeager researchers often tinker too much with the statistical variables of their analysis to coax any meaningful insight from their data sets. "People are messing around with the data to find anything that seems significant, to show they have found something that is new and unusual," Dr. Ioannidis said.
He further argues that only a fraction of incorrect studies are ever corrected or retracted, meaning that there are many published studies still "on the books" that support erroneous findings. It's an interesting and provocative thesis.
Alan Greenspan on the Bush Administration:
Here's an interesting preview of Alan Greenspan's memoirs: Alan Greenspan, who was chairman of the Federal Reserve for nearly two decades, in a long-awaited memoir, is harshly critical of President Bush, Vice President Dick Cheney and the Republican-controlled Congress, as abandoning their party’s principles on spending and deficits.
In the 500-page book, "The Age of Turbulence: Adventures in a New World," Mr. Greenspan describes the Bush administration as so captive to its own political operation that it paid little attention to fiscal discipline, and he described Mr. Bush’s first two Treasury secretaries, Paul H. O’Neill and John W. Snow, as essentially powerless.
Mr. Bush, he writes, was never willing to contain spending or veto bills that drove the country into deeper and deeper deficits, as Congress abandoned rules that required that the cost of tax cuts be offset by savings elsewhere. "The Republicans in Congress lost their way," writes Mr. Greenspan, a self-described "libertarian Republican."
. . . .
Of the presidents he worked with, Mr. Greenspan reserves his highest praise for Bill Clinton, whom he described in his book as a sponge for economic data who maintained "a consistent, disciplined focus on long-term economic growth."
Friday, September 14, 2007
An Ayn Rand First:(?):
An article in the New York Times about Rand and Atlas Shrugged that is notable for the absence of the expected condescending sneering.
Rand didn't much influence my political philosophy, which was about the same before I read her stuff as it is now, but I do give her credit for two things. First, she indirectly persuaded me that caring about the success of strangers on sports teams that happen to carry the name of my city or school is a waste of time. This freed up thousands of hours for other endeavors more directly related to my own life. (I'm not an evangelist about this; if you enjoy rooting for sports teams, and think the opportunity costs are worth the enjoyment you get out of it, more power to you.)
Also, discussions of Rand typically focus on her political and moral philosophy, but, as the Times article suggests, she inspired a lot of people, of all political, religious, and social views, to raise their aspirations and expectations of themselves. In my own case, I had always done well in school, but never studied hard or paid much attention to my classes. It was after reading Rand, and being at least as inspired by her example as her characters (an adult immigrant who didn't know English becoming one of the most influential English-language novelists of all time, in part due to her sheer force of will) that I started to apply myself--I think I'm somewhat unusual in that I still work much harder as a tenured law professor than I did in school. (Whether Rand did me a favor, or whether I'd be better off in some sense as a slacker with lots of free time like I was in college, is admittedly an interesting question.)
May California Employers Avoid Politically Controversial Employees?
I've argued before that a university may reasonably — and without violating the First Amendment or academic freedom principles — (1) prefer to hire a Dean or a Chancellor who isn't too politically controversial, and (2) insist that these employees (who do a lot of fundraising and are the public face of the university) avoid controversial statements during their employment.
But even if I'm right, it's possible that a California state statute nonetheless prohibits this. In fact, if the statute is read according to its text, coupled with the way the California Supreme Court has interpreted it, then all California employers must retain employees despite their controversial off-the-job statements, even when those statements are incendiary and alienate the employer's customers, donors, employees, or others.
Here's the relevant statute, California Labor Code § 1101:
No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.
Now you might think the statute applies only to politics in the sense of election campaigns; but the California Supreme Court has held otherwise, see Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 595 P.2d 592, 610 (Cal. 1979), and read the term as basically applying to commentary on a wide range of public affairs. You might also think it applies only to current employees, and not hiring decisions; not so, the Supreme Court held (id. at 610 n.16). So it seems that an employer's policy (written or not) that it won't hire or won't retain employees who make public statements that alienate members of the public — or more specific policies applying to, say, racist statements, religiously bigoted statements, sexist statements, and the like — would be illegal.
Employers would thus not only be barred from firing employees because they are Democrats or Republicans. They would also be barred from refusing to hire Klansmen or people who have made racist, anti-Semitic, or anti-Catholic statements, even when the candidate is being hired for a high-profile public contact or leadership position, and when many of the employer's customers would be deeply alienated by the person's statements (past or future).
Now it would make sense to come up with an exception for "when the employee's political activities are patently in conflict with the employer's interests," and one federal trial court case so held, see Smedley v. Capps, Staples, Ward, Hastings & Dodson, 820 F. Supp. 1227, 1230 n.3 (N.D. Cal. 1993). But there's no authority in the statutory text for any such position, and the case Smedley cited in support, Mitchell v. International Ass'n of Machinists, 196 Cal. App. 2d 796 (1961), actually doesn't support that position.
State statutes in some other states do have exceptions for when the speech restriction on employees "[r]elates to a bona fide occupational requirement" (Colorado) or when the employee's speech "creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest" (New York). But California doesn't; and it's not clear that California courts would be willing to infer such an exception -- compare Davis v. Louisiana Computing Corp., 394 So.2d 678, 679 (La. App. 1981), which specifically refused to infer such an exception into a similar Louisiana statute.
It's possible that some employers' First Amendment rights might trump this statute in some situations, for instance when a newspaper demands that its reporters not engage in politics. Compare Nelson v. McClatchy Newspapers, Inc., 936 P.2d 1123, 1127 (Wash. 1997) (so holding, by a 5-4 vote) with Ali v. L.A. Focus Publication, 112 Cal. App. 4th 1477 (2003) (rejecting the claim that a newspaper "has the unfettered right to terminate an employee for any [outside-the-newspaper] speech or conduct that is inconsistent with the newspaper's editorial policies"). But many employers wouldn't have such claims; and in particular, I'm pretty sure (notwithstanding occasional references to the supposed First Amendment rights of public universities) that the University of California, a branch of the California government, would have any First Amendment rights to resist the judgment of its ultimate bosses in the California legislature. (Article 9, section 9 of the California Constitution does give the University some independence from state statutes, but not from generally applicable state laws such as this one.)
In any case, I'm pretty sure that Chemerinsky won't sue UC on this theory or any other, so the answer might never be squarely determined. But I thought I'd raise this issue, chiefly because it illustrates an interesting and difficult problem faced by California employers who care about public reaction to their leaders', spokespeople's, and fundraisers' speech.
If This Isn't Sabotage, Then What Is?
I noted two days ago that one possible explanation for the actions of at least some of those who apparently pressured* Michael Drake to rescind the offer to Erwin Chemerinsky was a desire to derail the new law school. As the LA Times article quoted below notes (Hat tip to Brian Leiter), a delay in the opening of the law school is now a very real possibility. I can't get inside the heads of those who made the decision, but if they wanted to do maximum damage to their law school, they couldn't have done a much better job. From the LA Times article:
Officials said the turnaround on Chemerinsky could delay the opening of the law school — scheduled for 2009 — and so tarnish the institution that it would be difficult to assemble the scholars and staff needed to establish the school as one of the nation's best — UCI's long-cherished goal....
[O]fficials leading the launch of the law school said the decision makes it likely the school will not be ready to accept its first class as scheduled in 2009.
In order to meet the target, plans called for a dean to be in place this fall and for six to eight senior faculty members to then be hired this academic year. The search for Chemerinsky took nine months before a formal agreement was reached, and search committee members said they would now probably start again from scratch.
"We had three other finalists, and one of them would have definitely done it a week ago," said psychology professor Elizabeth F. Loftus, a member of the committee. "If you asked them today, I don't know. I don't think the law school will be derailed, but who knows what's going to happen next?"
*On the subject of external pressure, the same article in the LA Times says:
Loftus said Thursday that the chancellor told the committee during an emergency meeting Wednesday night that he was forced to make the decision by outside forces whom he did not name. A second member of the committee confirmed Loftus' account to The Times but asked to remain anonymous.
"I asked whether it was one or two voices or an avalanche, and the answer is that it was an avalanche."
Stoneridge v. Scientific Atlanta Preview:
The securities law case mentioned by Todd below, Stoneridge v. Scientific Atlanta is an extremely important case, probably the most important securities law case in the past decade. On Friday, October 5, the Center for Business Law & Regulation at the Case Western Reserve University School of Law, in conjunction with the Federalist Society's Corporate Law practice group, will be sponsoring a half-day conference previewing the case. Oral argument is scheduled for the following week.
The Case Stoneridge conference will provide a preview of the case and the surrounding legal and policy issues. Among the confirmed speakers are Stephen Bainbridge (UCLA), Barbara Black (UCinncinati), Richard Painter (Minnesota), Jay Brown (UDenver), Andrea Seidt (Ohio AAG), and Eric Isaacson (Coughlin Stoia), with more to follow. The conference will be webcast, and 3.5 hours of Ohio CLE credit will be available. More details are available here.
Related Posts (on one page): - Stoneridge v. Scientific Atlanta Preview:
- Stoneridge v Scientific Atlanta:
Stoneridge v Scientific Atlanta:
An early case on the Supreme Court's calendar this fall is Stoneridge v. Scientific Atlanta.
Extensive background is provided in Peter Lattman's extensive coverage on the Wall Street Journal Law Blog--a collection of his posting can be found here.
Larry Ribstein and Stephen Bainbridge have co-authored an amicus brief (with several others) and have blogged on the case. Having read some commentary on the case, Larry and Steve's arguments seem persuasive.
Ribstein writes:
As a purely legal matter, I must add that the issue is not a no-brainer. The basic problem is that the implied right of action is almost completely open-ended, and facts can be manipulated endlessly in a complaint. Lerach’s Enron complaint was 500 pages long. In my article with Kobayashi, Class Action Lawyers as Lawmakers, we compared such complaints to Theodore Dreiser’s reconstruction of a crime in his novel, An American Tragedy.
All the more reason why we need clear rules here. My theory is that the Court took cert on the Stoneridge case to provide that clarity, and that it will add the Enron case to the appeal to increase that clarity. By doing this the Court can make sure that secondary civil liability under 10b-5 is really dead, and stays dead, rather than wandering in scheme liability form like some terrifying zombie.
Boyden Gray also had an editorial in the Financial Times a few weeks ago that picks up on some of the policy issues associated with this, especially in the context of international law. The article is subscriber's only, but I found it reprinted here.
Update:
I should add that Mayer Brown LLP, with whom Eugene is affiliated part-time, is representing the respondents in the case.
The Chemerinsky Matter and the California Constitution:
Some have suggested that not hiring Chemerinsky based on his being politically controversial violates article 9, § 9 of the California Constitution:
The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs ....
The courts have not spoken in any substantial way about what the ban on "all political ... influence" means.
It would, I think, be odd to require that a university ignore the past political activities of all people with whom it deals "in the administration of its affairs," and the political impact that dealing with those people might have. Consider, for instance, the "appointment of [the university's] regents." Is it really the case that the Governor must appoint regents without regard to whether they've been political lightning rods, and without regard to the political enemies they have made?
Likewise, "administration of [the university's] affairs" includes more than just hiring of administrators: It includes the giving of awards, the invitation by the university of graduation speakers, the naming of schools and buildings, and more. Can it really be the case that a university can't consider (and in some instances try to avoid) possible political controversy in making such decisions? As to the selection and retention of faculty and students, the First Amendment and academic freedom principles should indeed preclude such considerations. The question is what should be done in other contexts, such as choosing whom to invite to give a lecture to donors, whom to appoint as a fundraiser, and the like.
At the same time, it's certainly possible that the California Constitution bars even those practices that I think are proper and perhaps even wise. Any thoughts on how the text of that provision should be interpreted, not just with reference to this particular controversy, but looking at the broad category of "the administration of [the university's] affairs"?
Stuart Taylor Guest-Blogging Next Week:
I'm delighted to report that Stuart Taylor and K.C. Johnson, authors of Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, will be guest-blogging next week about their book.
Stuart is a contributing editor for Newsweek, a weekly opinion columnist for National Journal, and a nonresident senior fellow with the Brookings Institution; in the 1980s, he was a reporter and Supreme Court correspondent for the New York Times. K.C. is a professor at the City University of New York history department, and author of many books and articles. I've been a fan of Stuart's work for many years, and I've also heard many good things about K.C.; I much look forward to their visit.
Ronald Dworkin and the Wall Street Journal Editorial Page:
The politics are 180 degrees apart, but I find a significiant similarity in style and method between the first and last few paragraphs of this analysis of the Supreme Court by Ronald Dworkin and the first and last few paragraphs of this essay about Ted Olson's prospects as AG from the Wall Street Journal editorial page. Over-the-top rallies the troops, I guess.
No Suspension for Belichick:
NFL Commissioner Roger Goodell fined New England Patriots coach Bill Belichick $500,000, and ordered the team to pay an additional $250,000 and lose one or more draft picks, for violations of league rules against taping an opposing team's play signals. The Patriots will have to give up their first-round draft pick in 2008 if they make the playoffs this year, their second and third-round picks if they do not. Said Goodell, "This episode represents a calculated and deliberate attempt to avoid longstanding rules designed to encourage fair play and promote honest competition on the playing field." Nonetheless, Goodell decided not to suspend Belichick "largely because I believe that the discipline I am imposing of a maximum fine and forfeiture of a first-round draft choice, or multiple draft choices, is in fact more significant and long-lasting, and therefore more effective, than a suspension." Although this is a precedent-setting penalty, ESPN analyst John Clayton still thinks the Patriots got off easy. Related Posts (on one page): - No Suspension for Belichick:
- What Penalty for the Patriots?
Thursday, September 13, 2007
Brzezinski and Obama:
Barack Obama has been criticized by pro-Israel forces (undoubtedly egged on by the Hillary team) for naming Zbignew Brzezinski, Jimmy Carter's National Security advisor, as one of his foreign policy gurus. Ezra Klein links to, and endorses, a post by one Matthew Duss, relying on a story from the Politico website, suggesting that the "Israel lobby," writ large, and Alan Dershowitz personally, are upset about Brzezinski because he wrote an essay last Summer defending Mearsheimer and Walt’s “Israel Lobby” essay.
This is a good an example of the dangers of blogging about things that one doesn't know much about. Anyone who is reasonably familiar with the history of U.S.-Israel relations knows that the pro-Israel community (and the organized Jewish community writ large, for that matter) has despised Brzezinski for at least thirty years. And it wasn’t just Brzezinski’s policies, deemed by many to be anti-Israel, it was the way he promoted them, and the way he interacted with Jewish community activists who sought to engage him--much worse, for example, than Bush I Secretary of State James "Fuck the Jews" Baker, who has few friends in the pro-Israel world.
For example, the New York Times reported on March 10, 1978, that Rabbi Alexander Schindler, President of the Conference of Major Jewish Organizations (and a very liberal fellow, both religiously and politically), thought that Carter's Middle East policy was a "question mark," largely because of Brzezinski. Schindler told the Times that among Jewish leaders "All of the anger and mistrust is toward the National Security Council and toward Brzezinski." Schindler explained that in a meeting with Jewish leaders, Brzezinski was "antagonistic, blustering, threatening." Brzezinski, for his part, acknowledged to the Times "strong resentment toward him personally expressed by some Jewish leaders."
Brzezinski denied being anti-Israel, and for all I know, he was sincere. But even though I was not even bar mitzvah age at the time, as a reader of Jewish newspapers that came to our home I remember the deep hostility and mistrust many Jews felt toward Brzezinski at the time. Brzezinski likely played a larger role than anyone but Carter himself in the fact that in 1980, Jewish activists largely preferred Kennedy to Carter, and Carter ultimately received less than 50% of the Jewish vote in the general election (compared, for example, to 80+% for recent Democratic presidential candidates).
So for Klein to attribute anti-Brzezinski sentiment to, for example, the fact that he “calmly defend[ed] and contextualiz[ed] a book by two leading international relations scholars, or because Brzezinski denies that "this Israel Lobby which is currently planting stories to attack and embarrass Obama doesn't exist," [as I’ve noted before, and despite Matthew Yglesias's continued insistence to the contrary, NO ONE denies that an Israel lobby exists, they just quarrel with absurdly expansive definitions of that lobby, and exaggerated notion's of that lobby's power], without any hint that Klein is aware of the longstanding feud between Brzezinski and the organized Jewish community, is just kind of embarrassing.
UPDATE: Hmm, just noticed that the original Politico article that prompted Duss's post notes that "Brzezinski has been at odds with elements of the American Jewish community since the Carter administration." But why let such details get in the way of a good "the Israel lobby is out to get someone because he defended Mearsheimer and Walt" story (adopted by M.J. Rosenberg, who clearly does know better, as well)? The article does quote one observer as claiming that Brzezinski had kept a low profile on the Middle East over the years, and that the source of controversy over him was thus his defense of M & W. But Brzezinski has not, in fact, kept a low profile; he was, for example a leading critic of Israel's action re Lebanon last year, and a Google search for Brzezinski and Israel results in approximately 650,000 hits.
Two more things: First, I don't know enough about Brzezinski to have a strong personal opinion about him. I do recall that he was considered something of a right-wing hardliner in the Carter Administration, especially compared to the more liberal, and far more pro-Israel, Cyrus Vance. Second, wow, the anti-Semitism you see in the comments pages of liberal blogs (just a sample from one thread: a commenter tying the Israel lobby controversy to the "Jewish conspiracy" to turn over atomic secrets to the Soviets; and "let me congratulate you for once again showing the legendary Jewish ability to make most peoples who encounter Jews eventually detest a good portion of them for their famous arrogance and condescension") whenever subjects like this come up! I don't know what these blogs' moderation policy is, but I wonder if similar sentiments were expressed regarding other groups, the authors, and their readers, would be so indulgent. (Not that I think Klein, et al., endorse anti-Semitism, but if you're bending over backwards to show that you're not part of the evil "Israel lobby," you may be more hesitant to "censor" anti-Semitic comments, especially because we all know that anti-Semitism plays virtually no role in debates over Israel.)
UC Irvine Chancellor Michael Drake's New Statement on the decision to Rescind Chemerinsky's Offer:
UC Irvine Chancellor Michael Drake has issued a new statement on his decision to rescind Professor Erwin Chemerinsky's offer to become the dean of the new UCI Law School. This statement is a lot more substantive than the Chancellor's previous effort. It denies rumors that the Chancellor's decision was influenced by pressure from conservative donors, and emphasizes that the "the decision was absolutely not based on Professor Chemerinsky's political views."
I'm willing to give Drake the benefit of the doubt on the donor issue. We don't really any proof that the decision was based on donor pressure. However, the assertion that it wasn't based on "Chemerinsky's political views" seems to directly contradict Chemerinsky's own account, which claims that Drake told him that "he hadn't expected I [Chemerinsky] would be such a target for conservatives. A lightning rod."
Drake's statement would be easier to credit if he had provided some other, nonideological justification for rescinding the offer. However, neither this statement nor the previous one does so (except to say that it was a "management decision"). Others have speculated that the offer was rescinded because Chemerinsky recently published a controversial anti-death penalty op ed. If so, isn't that little different from rescinding the contract because of Chemerinsky's liberal views? If the op ed were objectionable to UCI, it is because the liberal views expressed there might offend conservatives.
Like Eugene Volokh, I believe that ideology can sometimes play a legitimate role in assessing candidates for deanships. A school can legitimately refuse to hire a dean whose ideology prevents him from enforcing administrative policies he disagrees with or does serious damage to the school's image. However, there is no reason to believe that Chemerinsky's fairly typical liberalism falls into that category. Indeed, Chancellor Drake says in his statement that Chemerinsky's views are similar to his own.
My bottom line: if Chancellor Drake wants to refute claims that Chemerinsky's offer was rescinded for ideological reasons, he could help his case greatly by explaining what the real reason for the decision was.
Can Presidents Wage War Without Congressional Support?
Yale law professor Jack Balkin makes an argument that is very commonly heard these days: that the separation of powers has broken down and presidents can engage in warfare with little or no congressional support:
The sad lesson of the past year is that the modern Presidency-- armed with control over military intelligence and a large standing army-- can have its way in matters of war even if the President's policies are very unpopular, and there is very little Congress can do to stop it.
This lesson should be abstracted from one's feelings about the current occupant of the White House. George W. Bush is a failure-- I won't mince words-- but even a failed President can do pretty much what he wants in war given the way our constitutional system has developed following the Second World War and the rise of the National Security State.
I disagree. In fact, it is very difficult for a president to either initiate or continue a military conflict without fairly strong congressional backing. And the evidence of the last 60 years proves it.
I. Initiating War.
Let's start with war initiation. Virtually every major military action undertaken by the US since World War II has either been formally authorized by strong congressional majorities in advance (Vietnam, both Iraq Wars, Afghanistan), or enjoyed strong congressional support without a prior formal vote, though often there was an authorizing vote after the fact (Korea, both Lebanon interventions, Grenada, Somalia, Haiti). There is only one noteworthy exception to this rule: President Clinton's 1999 military action in Kosovo, which was opposed by most congressional Republicans. Yet even this case partly validates the rule. Knowing that congressional support was severely limited, Clinton took account of this political reality and carefully limited the scale of US involvement and especially US casualties (which didn't include a single combat fatality).
Setting aside constitutional considerations, there are good political reasons for presidential reluctance to initiate war without congressional support. If the war goes badly, the president will be hung out to dry politically and suffer a severe backlash. Moreover, as discussed below, Congress can use the spending power to stop a war it opposes dead in its tracks. With congressional support, by contrast, the president can shift some of the blame to Congress and make it difficult for the opposition party to blame him by pointing to the fact that their congressional representatives supported the war as well (a gambit President Bush used to great effect against John Kerry in 2004).
II. Continuing War in the Face of Congressional Opposition.
Even if presidents can't get away with starting a war without strong congressional support, perhaps they can get away with continuing it long past the point that Congress would like to end it. This is what many observers, including Balkin, believe Bush has done over the last year. The problem with this theory is that Congress does in fact have the power to stop a war at any time: it can do so simply by refusing to vote continued funding for it. This is true not only under my fairly expansive view of Congressional war powers, but even under John Yoo's extremely restrictive one. I would further argue that Congress also has broad authority to regulate military action in other ways. But even if that's not true, the uncontested spending power is itself sufficient to stop any war that Congress truly wants to end. The Iraq War could not continue for long without constant infusions of money.
Jack Balkin notes that the president can veto congressional efforts to stop a war. However, the power to deny funding is effectively veto proof, since Congress can exercise it simply by refusing to vote the money in the first place.
Why, then, have congressional Democrats failed to stop the war in Iraq? My guess is that, however much they dislike continuation of the war, they fear a precipitous withdrawal even more. Such a step could well cause a foreign policy disaster for the country and a political disaster for the Democrats themselves (because they will get a large share of the blame). On the other hand, the combination of continuation of the War with continued harsh criticism of Bush avoids this scenario, while enabling the Democrats to blame Bush (with considerable justice) for any failures on the ground. If congressional Democrats could agree on an alternative to Bush's strategy that they believe would both avoid immediate disaster and end the war fairly soon, they could very likely use the spending power to force Bush to accept it. But they don't have such an alternative, or at least most of them don't think they do. The war continues not because Bush - or any president - "can do pretty much what he wants in war," but because the congressional majority doesn't really want to use its power to stop him from doing it.
UPDATE: Some scholars add the additional twist that Congress' power to stop a war is difficult to exercise because, once war is initiated, Congress might legitimately prefer to victory to defeat, even if it would ultimately have preferred never to have started the war in the first place. Perhaps the congressional majority has a rank order of preferences of 1) no war (perhaps because they consider the price of victory to be too high), 2) an overexpensive victory, 3) defeat. But once the president initiates hostilities, only options 2 and 3 are still on the table. This argument would have great force if presidents really were able to start wars without congressional support. In fact, however, they have been unable or at least unwilling to do so.
UPDATE #2: Several commenters argue that the Democrats couldn't really defund the Iraq War without defunding the entire Department of Defense (since the Bush Administration could otherwise try to use funds allocated for general DoD purposes to continue the war). This is an interesting point, but I don't think it withstands scrutiny. The Democrats have at least two other ways to defund the war. First, they could refuse to authorize DoD spending bills without attaching riders forbidding use of the funds in Iraq (or at least strictly limiting that use to funds needed to effectuate a withdrawal). That approach would court a confrontation with Bush (who would threaten to veto). But the Democrats would have a good shot at winning that confrontation, in light of Bush's low public standing and that of the war.
Moreover, as a practical matter, waging the Iraq war requires numerous appropriations for specific equipment, payments to contractors, spending on Iraqi support personnel etc. of a type needed in Iraq, but not needed in comparable quantities for other military activities to continue elsewhere. For example, the war requires a variety of specialized equipment needed to operate in Iraq's desert environment. Congress could push through a bill excluding these items or strictly limiting their quantity to something approaching the amount needed to implement a relatively fast withdrawal.
No doubt those more expert in the federal budget process than I am could think of other ways for Congress to use the spending power without having to defund the military completely.
Positronium:
"The four particles 'do a merry dance around each other in a fuzzy, lump-less soup.'" The world is an even weirder place than I had thought. Thanks to GeekPress for the pointer.
Volokh Commenters Get Noticed:
Someone at the Atlanta Journal-Constitution liked our "mentee" thread -- and quoted a substantial chunk, all from the commenters:
he verbal warfare broke out late last month on "The Volokh Conspiracy," a blog run by UCLA law Professor Eugene Volokh. The squabble began during a discussion of misspellings, when one poster took off on the word "mentee."
I find "mentee" [said he] so offensive that I disparage its usage at every opportunity. While I will reluctantly overlook the use of "mentor" as a verb (that battle is lost), I refuse to acknowledge the existence of the verb "to ment" that "mentee" necessarily implies. Resumes containing this word require no further review. I reserve such vitriol and summary dismissal for this error alone. This is because it is what might be called a Homeric error. And I don't mean Homer Simpson.
Yankev's post: What else do you call the subject of a mentor?
I still vote for protege.
Mentee sounds too much like the endangered sea cows that inhabit Florida's coastal waters.
Was that your mentee I saw you with at lunch?
No, that's not the person I ment.
Uggh. Mentee may be a word, but so is puke.
Ex parte McCardle's post: How about "lickspittle," a great old word which has fallen into unwarranted desuetude?
AK: I might recognize "mentee" as a word, but I will never recognize "Mentos" as a food.
James Fulford: What else do you call the subject of a mentor?
Telemachus?
Tim Dowling: My recollection is that during the Bush I Administration, EPA's chief of staff issue a memo banning the use of the word "proactive" because, in his words, "it's not a word." Evidently, he didn't like it, word-wise speaking. By the way, mentoring has its own month, January. IT'S THE LAW. Go forth and ment.
NaG: I propose that "the" is not a word. It means nothing. There is nothing about "the" that adds meaning to a subsequent word. "The pig" has no different meaning than simply "pig"; "the" can simply be inferred from the noun itself.
BobH: Eliminate article!!
JohnEMack: Would other passive forms be better? How about "mentess" for female epigones? Or "mented," which permits us to call former students "demented."
Good work, folks!
Intimate Association, Fraternities, and Government Subsidies:
The public College of Staten Island refuses to officially recognize groups that discriminate based on sex; this refusal denies the groups various benefits. Last year, a federal district court held that the College's policy violated a fraternity's right to intimate association. Today, the Second Circuit reversed the district court's decision. (Thanks to How Appealing.)
I have argued the district court decision was indeed a mistake: The University is choosing not to fund certain exercises of a constitutional right to intimate association, and the government is generally perfectly free not to fund the exercise of a constitutional right, even when it funds other activity (including activity that's in some ways an alternative to that exercise of a constitutional right). Consider some examples ("need not" below means "has no federal constitutional obligation to"): | Right to abortion | New York may not ban abortions, | but it need not pay for them with state funds, or allow them to be performed at state-run hospitals | even if it chooses to pay for childbirth. |
| Right to free speech | New York may not ban advocacy of a candidate or a legislative proposal, | but it need not subsidize it through the charitable tax exemption | even if it subsidizes non-electioneering, non-lobbying speech through the charitable tax exemption. |
| Right not to marry | New York may not require people to marry, | but it need not give unmarried couples or platonic roommates special dorm housing, | even if it subsidizes married couples by offering such housing. |
| Right to privately educate one's children | New York may not ban private education, | but it need not pay for private education, | even if it pays billions for public education. |
For more on these examples, see my Freedom of Expressive Association and Government Subsidies, 58 Stanford Law Review 1919 (2006), which discusses all this in the context of the right to expressive association rather than intimate association.
I'm not sure about some of the Second Circuit's analysis in today's decision, but the general thrust seems correct: "[The college's] refusal to subsidize the Fraternity's activities does not constitute a substantial imposition on the group's associational freedom. See[, e.g.,] Regan v. Taxation with Representation of Washington, 461 U.S. 540, 546 (1983) ('We again reject the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.')" Sounds right to me.
Related Posts (on one page): - Intimate Association, Fraternities, and Government Subsidies:
- Intimate Association, Fraternities, and Government Subsidies:
Careful with Those Comparisons:
People have asked why Erwin Chemerinsky's political activism might have been seen as troublesome by UCI when Ken Starr's activism -- including continuing public commentary -- isn't seen as troublesome by Pepperdine, and Chrisopher Edley's past activism hasn't been seen as troublesome by Berkeley.
My sense is that different schools make these decisions with an eye towards their different donor bases. The makeup of these bases turns on many factors, including (1) the general ideology of the school's alumni and traditional supporters, (2) the political makeup of the school's geographical location, (3) whether the school is an old school with lots of alumni or a new school with few, and (4) whether the school is private or public (since in the latter case the public, through the legislature, is a big "donor").
Pepperdine, for instance, has a reputation as a conservative school with mostly conservative (especially religious conservative) alumni and traditional supporters. A social conservative dean, even a highly controversial one, may appeal to them, and his continuing political participation may please and energize more people than it alienates. Boalt (the Berkeley law school) has a large alumni base that is likely on balance quite liberal. My sense is that it is also seen as an important civic institution in Northern California, and thus draws support from the public at large -- a public that, I'm told, is strikingly liberal. A liberal figure, even a moderately controversial one, may appeal to them, too.
UCI law school has no alumni, and my guess is that it therefore has to largely rely on the legislature and on local Orange County donors. Orange County is much less conservative than it used to be, but it's no Berkeley. It thus makes sense that having a controversial liberal dean might pose some more problems for UCI than for Boalt. I may be wrong -- I'm not an administrator or a fundraiser -- but this at least seems like a plausible position for the UCI people to take.
None of this excuses the poor way this situation was handled by UC, and none of it by itself resolves the First Amendment questions or the academic freedom questions (though I've argued that those matters don't come into play here). But it does suggest that we can't dismiss any possible worries on UCI's part about their dean's being too controversial just by pointing to controversial deans at other schools.
More on Academic Freedom and Fundraisers / Policymakers / Institutional Public Faces:
As I mentioned yesterday, I think canceling the Chemerinsky UCI deanship plans was a big mistake on the UC's part. There are also credible claims that the decision might violate state law (a complicated matter, which I might blog about later).
But the incident also raises a broader question: What role do the First Amendment and academic freedom principles have in choosing deans (or for that matter university presidents)? May higher-ups consider a person's speech, politics, or political activism in deciding whether to hire, fire, or reappoint him as dean? May higher-ups constrain what a dean says while he's a dean, as well as considering his past statements when deciding whether to make him dean? Or should academic freedom principles bar such considerations, much as they generally do as to professors? Let me pass along my tentative thinking.
1. Remember that, especially these days, deans and presidents are in large part fundraisers. To be effective at that job, they have to deal well with donors; being controversial may often undermine that.
Deans and presidents are also the main public faces of the institution. There are many professors at the institution, and it's easy to dismiss a professor's controversial statements as entirely his own, entirely unendorsed by the institution. One can't do that as to a dean or a president; what he has said or is saying is going to rub off on the public perception of the institution.
And deans and presidents are policymakers — policymakers whose policy decisions may often affect political matters (for instance, if they authorize the creation of various public interest litigation clinics, or adopt certain policies about admissions, military recruitment on campus, and the like). Higher-ups, donors, and members of the public will infer what policies the dean will make from the dean's past political statements.
2. Professors, on the other hand, are not chiefly fundraisers from the public. (To the extent they raise funds, they tend to do it through grants, a process that focuses far more on evaluation of academic proposals and on scholarly reputation — and perhaps on personal contacts — than does decanal fundraising.) Each professor is one of many, and professors are notoriously lone wolves who often disagree with each other as well as with the administration. Professors are not primarily policymakers.
Moreover, professors' job is to come up with ideas, including highly controversial ones and ones that may well be wrong. I'd much rather have a faculty of 20 scholars who come up with controversial and innovative but sound ideas plus 20 who come up with controversial and innovative but unsound ideas, than a faculty of 40 who come up with sound but banal ideas. The first faculty will contribute 20 scholars' important ideas to the storehouse of human knowledge, and those ideas can then enrich the work of scholars and others worldwide. The second will contribute 40 scholars' minor ideas, which will be largely unhelpful. Deans and presidents are also supposed to be innovative, but much less so: A failed innovation applied to an institution by its leader causes much more damage than a failed law review article does.
This is why a brilliant but erratic and controversial scholar is great to have; a brilliant but erratic and controversial dean is generally not. A bland, uncontroversial dean will often do a very good job, and sometimes an excellent job (though perhaps not a genius job). Someone who writes bland, uncontroversial scholarship isn't much of an asset as a scholar.
3. So the main reasons for protecting professors' (and students') academic freedom do not generally apply to dean. And there are the same time good reasons for considering a decanal applicant's speech, activism, and general controversiality, given that a dean's job is not inventing brilliant ideas, but rather chiefly raising funds, making institutional policy, and being the institution's public face.
Thus, if you want to get contributions from a largely liberal donor pool, you might well prefer a liberal dean, and strongly prefer someone whose public image is of someone who is somewhere between left and very slightly right (or apolitical). If you want to get contributions from a largely conservative pool, you might prefer a conservative dean, and strongly prefer someone whose public image is of someone who is somewhere between right and very slightly left (or apolitical). If you want to get contributions from a mixed pool, you might strongly prefer someone whose public image is of someone who is between moderate liberal and moderate conservative (or apolitical). And if you're starting a new law school, which lacks an existing alumni donor base, you might be especially concerned about finding someone who can excite the most people while alienating the fewest.
Likewise, you might want to set aside a person's past speech, but at least have some indications that he will avoid highly controversial subjects during his tenure. Or you might focus more on the style of a person's arguments than the substance, on the theory that donors and others will be more likely to be alienated by people who have a reputation as being strident in their views.
Similarly, if a dean says something highly controversial — whether about identity group topics such as race, religion, sex, or sexual orientation, or about other controversial topics — his higher-ups may conclude that it is better to fire him, or at least quietly ease him out or decline to reappoint him. Such a decision may be eminently proper (even if in some situations tactically foolish or an overreaction), even if a similar decision about a professor would be quite wrong.
Naturally, some decanal hiring decisions may still be too narrow-minded, or otherwise foolish. And, as I've said, the way the decisions are made and publicized may well be extraordinarily counterproductive, as they seem to have been here. But the First Amendment and academic freedom standards for them must be vastly different than the standards for hiring professors.
More from the L.A. Times on the Chemerinsky Matter:
The L.A. Times reports:
Chemerinsky and [UCI Chancellor] Drake agreed the new dean's dismissal was motivated in part by an Aug. 16 opinion article in The Times, the same day the job offer was made. In it, Chemerinsky asserted that Atty. Gen. Alberto Gonzales was "about to adopt an unnecessary and mean-spirited regulation that will make it harder for those on death row to have their cases reviewed in federal court."
But Drake and Chemerinsky split sharply on what role the article played in the decision to fire the incoming dean and whether academic freedom was at stake.
"Shouldn't we as academics be able to stand up for people on death row?" Chemerinsky said.
Drake said that "we had talked to him in June about writing op-ed pieces and that he would have to focus on things like legal education in this new role, and then here comes another political piece. It wasn't the subject, it was its existence. What he said doesn't matter." ...
Chemerinsky said that Drake told him during a meeting at the Sheraton Hotel near the Raleigh-Durham airport that "concerns" had emerged from the University of California regents, which would have had to approve the appointment. The professor said Drake told him that he thought there would have been a "bloody battle" over the appointment.
Drake disagreed with the account. "No one said we can't hire him," he said. "No one said don't take this to the regents. I consulted with no regents about this. I told a couple people that I was worried and that this might be controversial, but no one called me and said I should do anything."
Drake drew support from Christopher Edley, dean of the Boalt Hall School of Law at UC Berkeley, whom Drake consulted on the decision to let Chemerinsky go.
"It appeared to me that Michael was willing to go forward in the face of opposition but for the fact that he lost confidence in Erwin's willingness to subordinate his autonomy and personal profile for the good of the institution," Edley said.
Edley, who worked in the Clinton administration, said it was nothing that he had not been called to do himself.
"I was questioned explicitly by people who feared I would turn the deanship into a platform for my own ideological commitments," he said. "But it was clear to me then, and it's clear to me now, that the job requires something else." ...
More from The Recorder (a San Francisco legal newspaper):
Christopher Edley Jr., dean of University of California, Berkeley's Boalt Hall School of Law who has been involved with the new law school -- and was handpicked by Chemerinsky to serve on his advisory board -- said it wasn't about Chemerinsky's "political leanings or ideology, which everyone knew" about.
"I think key people lost confidence that he would be willing to shed his high personal public profile in the service of the law school -- whether that was the right or wrong conclusion," Edley said, though he declined to identify the individuals who opposed Chemerinsky.
Edley continued: "At the end of the day, the chancellor had to have confidence that Erwin would be able to earn the trust, loyalty and investment of a diverse constituency, and for a startup venture that's an exceptionally delicate proposition."
Kmiec on Chemerinsky:
Pepperdine law professor Douglas Kmiec comments on UC Irvine's disgraceful treatment of Erwin Chemerinsky in the LA Times. Here's a taste:
Erwin Chemerinsky is one of the finest constitutional scholars in the country. He is a gentleman and a friend. He is a gifted teacher. As someone who participates regularly in legal conferences and symposiums, I have never seen him be anything other than completely civil to those who disagree with him.
So the news that UC Irvine had selected him to be the first dean of its new law school was welcome indeed. And the subsequent news -- that it withdrew the offer Tuesday, apparently because of Erwin's political beliefs and work -- is a betrayal of everything a great institution like the University of California represents. It is a forfeiture of academic freedom. . . .
Ironically, Erwin and I have often disputed the extent to which law is only politics. It has been my view that law must be understood as its own discipline and that the Constitution must be interpreted in a manner that respects its text and its history rather than any desired outcome. If federalism is a principle to be honored in the Constitution, for example, deference must be given to state choices, whether they are liberal or conservative. Erwin was less confident that law and politics could be so neatly divided.
I will continue to believe that the law has its own place above politics, but Erwin's dismissal surely makes that belief harder to sustain. UC Irvine's inability to keep politics out of its decision-making will make things difficult for the new law school. It will become more difficult to recruit new faculty and to attract the respect that the school would have so easily acquired by giving the deanship to Erwin -- and which it so tragically forfeited by its casual, and all too last-minute, withdrawal of the offer.
Would love comments:
I'm delighted to report that my new article, Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else, is going to be published in the June 2008 issue of the NYU Law Review. Here's the abstract:
In this Article, I propose a theory of how rational, ideologically motivated judges might choose interpretive methods, and how rational, ideologically motivated laymen—legislators, litigation organizations, lobbyists, scholars, and citizens—might respond. I assume that judges not only have ideological preferences but also (perhaps merely strategically) want to write plausible opinions. As a result, if judges decide to use any particular method of statutory or constitutional interpretation, the plausibility demands of the method they use will make them deviate from their own ideal points in the direction of the “most plausible point” of that method.
When judges can choose their interpretive method, they select the method that (taking these deviations into account) comes as close as possible to their favored outcome. This creates a selection bias, which makes interpretive methods’ observed distributions differ systematically from their true distributions. This bias explains how one can favor mandating an interpretive method even though one is politically closer to the current practitioners of a different method.
Judges can also choose whether to use the same method from case to case. I explain why, even though ideologically motivated judges (or litigation groups) might want to make the method they prefer in most cases mandatory for everyone, they do not personally have much effect on whether other judges use that method, and so it is rational for them to deviate from that preferred method in those cases where they prefer a different method.
It's going to be quite a while before this appears in print, so comments are welcome. The paper is available here.
UC Irvine Chancellor Michael Drake's Statement on the Decision to Rescind the Offer to Erwin Chemerinsky:
UC Irvine Chancellor Michael Drake has issued a statement defending the University's decision to rescind its offer of the law school dean position to liberal legal scholar Erwin Chemerinsky. The statement is here.
Brian Leiter calls the Chancellor's statement an example of "the familiar administrative mode of 'say nothing substantive, pretend everyone doesn't know what really happened, and hope it all just goes away.'" I tend to agree. The statement neither admits that Irvine made a serious mistake in rescinding Chemerinsky's offer for ideological reasons, nor provides any real justification for the school's decision. Still, if you are interested in this issue, go ahead and read the statement. At least it's mercifully short. Maybe you can find some hidden virtues in the Chancellor's bureaucratic prose that Leiter and I have missed.
Kay Hymowitz, Libertarianism, and Lifestyle Excesses:
Like David Bernstein, I welcome some of the things conservative pundit Kay Hymowitz says in her Wall Street Journal essay on libertarianism, and of course I too appreciate her praise of the VC. At the same time, there are some significant shortcomings in her analysis. David has identified one of them: her treatment of the libertarian position on civil rights.
I want to focus on her embrace of the common fallacy that libertarianism requires endorsement of any and all private lifestyles, no matter how foolish or self-destructive. This very common criticism (especially by social conservatives) conflates that which libertarians believe should be legal with that which we hold to be prudent and right. There are lots of foolish and even immoral behaviors that libertarians believe should be legal. It does not follow that we believe that doing those things is a good idea. Hymowitz, unfortunately conflates the two:
[I]t is difficult to separate the reasons for our abiding social disarray from the trends that Messrs. [Brian] Doherty and [Brink] Lindsey praise and for which libertarians bear a measure of responsibility. Despite Mr. Lindsey's protestations to the contrary, libertarianism has supported, always implicitly and often with an enthusiastic hurrah, the "Aquarian" excesses that he now decries. Many of the movement's devotees were deeply involved in the radicalism of the 1960s.
Nor should this come as a surprise. After all, the libertarian vision of personal morality--described by Mr. Doherty as "People ought to be free to do whatever the hell they want, mostly, as long as they aren't hurting anyone else"--is not far removed from "if it feels good, do it," the cri de coeur of the Aquarians. To be sure, part of the libertarian entanglement with the radicalism of the 1960s stemmed from the movement's opposition to both the Vietnam War and the draft, which Milton Friedman likened to slavery. But libertarians were also drawn to the left's revolutionary social posture.
To reiterate a simple but oft-misunderstood point: that which should be legal is not coextensive with that which is desirable or right. Libertarians believe that racist and communist speech should be legal; that does not mean that libertarianism implies support for such speech. The same is true of excessive drug use, cheating on your spouse, and so on. "People ought to be free to do whatever the hell they want, mostly, so long as they aren't hurting anyone else" is not "the libertarian vision of personal morality." It is the libertarian vision of the limits we should place on the power of government.
Prohibition by the state is not the only way to combat immoral or self-destructive private behavior, and nearly always not the best way. Indeed, a large part of the libertarian case against government "morals" regulation is precisely the the argument that the state is less likely to do a good job in this area than private institutions such as families, religious organizations, and social norms. The superiority of private sector social norms and traditions over state regulation was one of the central themes of F.A. Hayek's work, which Hymowitz praises in her essay. And Hayek was perhaps the most influential libertarian scholar of the twentieth century.
There is a kernel of truth in Hymowitz's argument in so far as libertarians are far less willing than conservatives to condemn private behavior merely because it goes against tradition (especially a tradition imposed and maintained by government coercion). This, to my mind, is a strength of libertarianism rather than a weakness; all too many longstanding traditions vociferously defended by the social conservatives of the day have turned out to be morally bankrupt or worse. 1960s' conservatives' defense of the tradition of racial segregation (discussed in David's post) is a major case in point. Be that as it may, refusal to condemn private behavior merely because it violates tradition is a far cry from "if it feels good, do it."
Similarly misguided is Hymowitz's claim that libertarianism was "complicit, too, in the vociferous attack during the 1960s on the bourgeois family." From Adam Smith to F.A. Hayek and beyond, prominent libertarian scholars have emphasized the importance of families, and the consequent need to protect them against government intrusion. Part of Hymowitz's argument here simply relies on the broader fallacy of conflating legality with morality already discussed above. The rest consists of a discussion of Ayn Rand's distaste for family ties. Rand had a deeply dysfunctional personal life, which may in part account for her attitude. But that attitude had everything to do with Rand's personal shortcomings and little if any connection to libertarianism as such.
Lastly, some of Hymowitz's claims about individual libertarian thinkers are seriously off base. For example, it is simply not true that Murray Rothbard "became a fan of Che Guevara and the Black Panther leader H. Rap Brown" because of libertarianism's embrace of social liberalism. Like other communist regimes, Che Guevara's Cuba was highly repressive of alternative lifestyles, imprisoning homosexuals and generally enforcing sexual puritanism. Rothbard's support for Che had nothing to do with social liberalism (which he probably knew to be the opposite of communist policy), and everything to do with his foreign policy isolationism, which often led him to take an overly indulgent view of America's foreign enemies. T |