Several times folks have asked for me to give accounts on the blog of visitors to the Law & Philosophy Program, much as Larry Solum often does, most recently for the "Rawls and the Law" conference, which he chronicles here (and scroll down).
It is very hard, in my view, to give an accurate report of philosophical or other analytically dense presentations (especially in "real time" as Solum does it). Jonathan Wolff is doing very high level work in political philosophy, and beyond summarizing a few of his main themes--his rejection of "resources" as an adequate egalitarian measure; his arguments for the very fact of risk as a kind of "disadvantage" that needs to be remedied (apart from its psychological effects); his criticism of monetary compensation schemes for disadvantage--I couldn't do adequate justice to his rich and intelligent presentations, or his generous engagement with questions and criticisms.
I very much admire Larry Solum's Legal Theory Blog, especially for its useful links, and the lexicon entries, which are a great resource for students. (I have more reservations, I admit, about his Legal Theory Bookworm and "download" of the week, since the items he singles out run the gamut, in my view, from the terrific to the incompetent. But such disagreements are inevitable, I suppose.) But I have worried for awhile that Solum does a disservice to those whose conference papers and discussions he blogs. The "Rawls and the Law" conference is a case study of the problems.
For example, Arthur Ripstein, a very talented philosopher on the philosophy and law faculties at the University of Toronto, had this to say to me about Solum's account of his paper at the Rawls conference:
"Well, there are various things he says that suggest he actually was at my talk. But he completely missed the point. This may have been my fault, but at least on this occasion, I doubt it. Each of [names omitted of other conference participants] (among others) discussed my paper with me afterwards and they came away having understood my central claim. So did Stephen [Perry] in his comments, which are also somewhat misreported."
Similarly, my colleague Larry Sager found Solum's rendering of his paper and the discussion puzzling:
"Solum seems to have misunderstood considerably more of my remarks than he understood. The panel was on Rawls' 'constitutional essentials' and the lessons they hold for constitutional law and structure. The point that both Frank Michelman and I meant to be wrestling with was the conceptual justification for there being two domains -- political justice on the one hand and a substantially truncated subset of political justice, the constitutional essentials. Rights to material well-being are a good ground for thinking about this question, both with regard to Rawls and with regard to constitutional law. My concern with both is what led me to talk about constitutional text and precedent. My point was very brief, and entirely negative: Neither text nor precedent gives reason for the truncation, even in American constitutional law. And of course, it gives no justification for the truncation in Rawls (which I pointed out in just this many words, but for which Solum taxes me.). Despite Solum's kind remarks at the end of his summary, it is hard not to take issue with, and some offense at, his comments about my beard harkening back to the 1960's, the issue of social rights be an artifact of the past, and myself being 'a living musuem'. Material rights have never been the holy grail of my constitutional thought, and I have never invoked Rawls in my thinking about such rights. It's hard to know what about my thoughts in this area have been 'thoroughly discredited' by theorists of a younger generation. Underenforcement, which is one of the mainstays of my thought and argument is, I believe, alive and well in contemporary discourse, generations aside. David Barron, for example just gave a paper at Tushnet's get together, arguing that my version of underenforcement is different and more useful that Post's and Segal's recent version. The broader question of the thinness and truncation of constitutional essentials is just beginning to be thought about, and hasn't been around long enough to have been credited or discredited. And as for material rights as a question of constitutional design, at least, they represent a topic that has just begun to emerge in constitutional theory."
I must say I share some of Sager's irritation. Next year, Yale University Press will publish Sager's Justice in Plainclothes: A Theory of American Constitutional Law , and after that Harvard University Press will publish a book by Sager and Chris Eisgruber on religious liberty. In my experience with constitutional law scholars around the country, I'd say there are perhaps only 2 or 3 who are as dialectically and analytically acute as Sager; certainly there are others as or more influential, but he really deserves better than he got from Solum. (Ripstein concurred; without my asking, he commented: "I just glanced at [Solum's] comments about Larry Sager's (excellent) paper. Misrepresentation is bad enough, but why does he have to be so insulting?" Good question. I'm all for not pulling punches, but one has got to be right.)
By contrast, one of the participants in this session said Solum's account was "very accurate in terms of reporting what was said in the papers, and even in discussion." That this session focused on a special interest of Solum's may have something to do with the better quality of the reporting.
But the real issue, it seems to me, is whether it's fair to presenters to translate their ideas and arguments, and then present them to potentially thousands of students and faculty elsewhere via a blog. It is if one is consistently on the money, as Solum was in the session on public reason. But it's unfair, and does a disservice, when the accounts produce the kinds of reactions from presenters quoted above.
Which is why I don't intend to blog about the particulars of the talks and discussion with our visitors here. High-quality intellectual dialogue is spoiled if everyone has to worry that their arguments will be mangled and then presented to the world. I would urge Larry Solum, who otherwise provides a valuable service, to stop blogging conferences. I suspect the reservations noted above are rather widely shared.
UPDATE: I see that Larry Solum has posted some additional thoughts on the blogging scholarly conferences question:
Solum: "Leiter objects that my comments may have given a misleading impression of the content (especially of two of the papers, one from a colleague of Leiter's). In both cases, my remarks were negative and critical. (As readers of Legal Theory Blog know, I rarely make negative comments about any work.) I can certainly understand that reading a negative remark about one's talk on the Internet would be difficult for the individuals involved."
Leiter: The issue raised by Ripstein and Sager was that their arguments were inaccurately represented, not that they were criticized. Sager goes in to some detail, and it's clear that his argument, and indeed the point of the session, was seriously misrepresented.
Solum: "I am sure that Leiter himself has experienced his share of indignant reactions, both to the opinions that he expresses on his blog and to the very sharp comments that he makes about individuals and departments in the Philosophical Gourmet and in his academic quality rankings of law schools."
Leiter: Yes--that goes with the territory of not pulling punches. Most of the stuff on my ranking sites is "pure opinion," rather than a mix of "this is what philosopher X thinks" followed by "my opinion" of what philosopher X thinks. The latter, insofar as one misrepresents what philosopher (or scholar) X thinks, does more damage than "pure opinion," since the opinion is almost always likely to look well-supported by the (mis)representation, yet readers have no way of gauging the extent of the misrepresentation. (When it's "pure opinion," one can just dismiss it out of hand, as it were, or accept it to the extent one accepts the reliability of the judger.) The one time I was told, correctly, that I had misrepresented someone's view in a blog posting, I deleted the posting. The reactions at issue here--from Ripstein and Sager--are not simply indignant: they claim that their views were inaccurately portrayed. To be criticized on the basis of arguments one didn't make is a just ground for indignation.
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