Leiter Reports: A Philosophy Blog

U.S. General Accounting Office: Iraq Now Worse Off than Before War

Story here:

"In a few key areas - electricity, the judicial system and overall security - the Iraq that America handed back to its residents Monday is worse off than before the war began last year, according to calculations in a new General Accounting Office report released Tuesday.

"The 105-page report by Congress' investigative arm offers a bleak assessment of Iraq after 14 months of U.S. military occupation. Among its findings:

"-In 13 of Iraq's 18 provinces, electricity was available fewer hours per day on average last month than before the war. Nearly 20 million of Iraq's 26 million people live in those provinces.

"-Only $13.7 billion of the $58 billion pledged and allocated worldwide to rebuild Iraq has been spent, with another $10 billion about to be spent. The biggest chunk of that money has been used to run Iraq's ministry operations.

"-The country's court system is more clogged than before the war, and judges are frequent targets of assassination attempts.

"-The new Iraqi civil defense, police and overall security units are suffering from mass desertions, are poorly trained and ill-equipped.

"-The number of what the now-disbanded Coalition Provisional Authority called significant insurgent attacks skyrocketed from 411 in February to 1,169 in May.

"The report was released on the same day that the CPA's inspector general issued three reports that highlighted serious management difficulties at the CPA. The reports found that the CPA wasted millions of dollars at a Hilton resort hotel in Kuwait because it didn't have guidelines for who could stay there, lost track of how many employees it had in Iraq and didn't track reconstruction projects funded by international donors to ensure they didn't duplicate U.S. projects.

"Both the GAO report and the CPA report said that the CPA was seriously understaffed for the gargantuan task of rebuilding Iraq. The GAO report suggested the agency needed three times more employees than what it had. The CPA report said the agency believed it had 1,196 employees, when it was authorized to have 2,117. But the inspector general said CPA's records were so disorganized that it couldn't verify its actual number of employees.

"GAO Comptroller General David Walker blamed insurgent attacks for many of the problems in Iraq."

And the GAO didn't even mention the tens of thousands killed and maimed....

U.S. University Faculty Quality--According to the National Research Council

I came across some interesting aggregated data on "faculty quality" across three dozen disciplines from the 1995 study of graduate programs in the U.S. by the National Research Council. That study was based on 92-93 surveys, so it's now a good decade old. (A new NRC study will begin soon, and will likely be out in 3-4 years.) During that decade, schools like NYU, UC Irvine, and Columbia have improved; schools like Berkeley, Wisconsin, Washington, Illinois, and Johns Hopkins have fared less well. (Texas is harder to assess, which means my perception of trends elsewhere should be taken with a grain of salt. My impression is that some programs have gotten markedly stronger--examples are, most obviously, Philosophy, but also Psychology, Economics, and Mathematics--while others have stagnated or slipped [e.g., Physics, Government]. How it washes out across all fields is hard to say. Overall, my sense is there have been net gains, but this is too impressionistic to be reliable.)

Still, despite being dated, this material may be of some interest.

This aggregation of the 1995 NRC data ranked the top 20 universities based on average faculty quality across all programs, for schools with at least 15 programs evaluated. It did the same for faculty quality in the Biological Sciences, the Physical Sciences, the Social Sciences, and the Arts & Humanities.
The data is here:Download file. Some comments on the data to follow later....

Good Commentary on the "Enemy Combatant" Decisions

My colleague Sarah Cleveland, an expert on international human rights and foreign affairs law, has a fine, short commentary on the meaning of Monday's Supreme Court cases here. An excerpt:

"The Supreme Court delivered a critical blow Monday to the Bush administration's claim that the president is above the law.

"Since 9-11, the president has asserted unprecedented powers to designate citizens as 'enemy combatants' and detain them indefinitely, to hold noncitizens in a Constitution-free zone at Guantánamo and to establish military tribunals....

"The framers created three branches of government and divided powers, not because it was efficient -- it isn't -- but because it was the best defense they knew against the concentration of excessive power in a single person....

"Courts historically have played a mixed role in maintaining the balance of constitutional power in these contexts. While our Constitution does not exempt wartime actions from legal scrutiny, modern courts have been increasingly reluctant to police the delicate balance that instrument strikes.

"The Supreme Court restored this important balance. In the court's proudest day in recent memory, the court rejected the claim that the president has unreviewable authority to designate enemy combatants and dismissed in a paragraph the contention that such detainees have no right to counsel."

Department of Brazen Hypocrisy

Paul Street observes:

"President Bush, Vice President Cheney and Secretary of State Colin Powell have recently gone out on the political limb by denouncing the 'barbarism' of the latest terrorist decapitation of an American hostage in the Middle East.

"Yes, of course you have to be depraved practically beyond belief to cut off the head of a defenseless hostage, to film that act, and then to distribute the images across the world. Anyone who engages in such conduct has forfeited any claim they might have once had to being human. Barbarian? Absolutely. There are some things, one hopes, that everyone can agree on.

"Where, however, is the Bush administration's disgust and anger over the actions of Uzbekistan dictator Islam Karimov, who is known for boiling his political opponents alive? His barbarian regime, which routinely tortures and kills dissidents, recently received $500 million from the self-declared guardians of global decency in the White House."

The Coming Military Draft

The writing is on the wall. This former National Guardsman--from whom we last heard here--has an analysis of the latest evidence suggesting a draft is imminent.

Lysenko (or is it Stalin?) would have understood Bush

Anyone who cares about science or knowledge ought to be scared to death by the Bush Administration.

UPDATE: More on the general topic from Chris Mooney here and here. Mr. Mooney's blog provides excellent coverage of these and cognate issues.

Bush's Visit to Ireland

This is, in many ways, a funny account of Bush's disastrous visit to Ireland. Three cheers for the Irish!

What is Living and What is Dead in Marx?

Originally posted on December 3, 2003.

============

For understandable, if philosophically frivolous, reasons the collapse of the Soviet Union has been taken—especially in popular culture (including popular "intellectual" culture, such as the blogosphere)—as signalling the defeat of Marx qua philosopher. (The mock interview with Marx that was making the rounds of the blogosphere awhile back gave expression to this kind of view.) Marxism had, after all, been so long associated with the Soviet Union, that that system’s collapse was taken to coincide with the collapse of its putative intellectual foundations. Of course, this association is, from a philosophical point of view, a non-sequitur. (Indeed, the Soviet Union arguably collapsed for Marxian reasons: bureaucratic central planning clearly fettered the development of the forces of production, and thus was eventually supplanted by nascent market forms of production and distribution. But the truth of that hypothesis doesn't matter in this context.)

Even putting aside silly objections, though, there is still a pressing question about what really is living and what dead in Marx's philosophy? (In this regard, I once again strongly recommend Jonathan Wolff's Why Read Marx Today? [OUP, 2002].) In recent years, there has been what I call a "moralizing" tendency in Marx scholarship--a tendency to abandon the manifest causal-explanatory ambitions of Marx's actual philosophical practice (Marx was a good naturalist!), in favor of developing the implicit normative theory in Marx's writings. Marx never engaged explicitly in normative theory, and for a simple reason: he concluded, correctly I think, that it would have no impact on practice. (Richard Posner, a closet Marxist on this issue, has made the same argument more recently, for example in The Problematics of Moral and Legal Theory [Harvard, 1999].) My view is that Marx stands or falls on the success or failure of his causal/explanatory project, and so the question what is living and what is dead in Marx is equivalent to the question what is living and what is dead in the causal/explanatory project (and the predictive claims flowing from it) that was Marx's central work?

Part of my answer is here, which is excerpted from my contribution to The Future for Philosophy volume (which will be out not later than next fall). A few suggestive highlights:

We must start from the now commonplace observation among scholars that many familiar Marxian predictions--e.g., the labor theory of value or the theory of the falling rate of profit--are simply false, while certain philosophical assumptions--e.g., about the teleological structure of history, or his conception of human nature in terms of species-being--seem hard to square with his naturalistic scruples, since no successful scientific methods or empirical results have given them robust support.

But what is equally striking is the accuracy of many of Marx’s best-known qualitative predictions about the tendencies of capitalist development: capitalism continues to conquer the globe; its effect is the gradual erasure of cultural and regional identities; growing economic inequality is the norm in the advanced capitalist societies; where capitalism triumphs, market norms gradually dominate all spheres of life, public and private; class position continues to be the defining determinant of political outlook; the dominant class dominates the political process which, in turn, does its bidding; and so on. (The article, above, includes citations to supporting evidence.)

Particularly important, in my view, remains the Marxian theory of ideology, which predicts that the ruling ideas in any well-functioning society will be ideas that promote the interests of the ruling class in that society, i.e., the class that is economically dominant.

By the “ruling ideas” we should understand Marx to mean the central moral, political and economic ideas that dominate discussion in the mass media and in the corridors of power in that society. The theory is not peculiar to Marx, since the “classical realists” of antiquity like the Sophists and Thucydides advanced essentially the same theory: the powerful clothe their pursuit of self-interest in the garb of morality and justice. When Marx says that, “The ideas of the ruling class are in every epoch the ruling ideas” (The German Ideology) and that, “Law, morality, religion are to [the proletariat] so many bourgeois prejudices, behind which lurk in ambush just as many bourgeois interests” (The Communist Manifesto), he is simply translating in to Marxian terms the Sophistic view “that the more powerful will always take advantage of the weaker, and will give the name of law and justice to whatever they lay down in their own interests” (that's WKC Guthrie's gloss on the Sophistic view).

In the United States, for example, a majority of the population favors abolition of the estate tax—what the ideologues of the ruling class now call a “death tax”—believing that it affects them, and that it results in the loss of family businesses and farms. In fact, only 2% of the population pays the estate tax, and there is no documented case of families losing their farms or businesses as a result of the tax’s operation. Examples like this--in which the majority have factually inaccurate beliefs, that are in the interests of those with money and power--could, of course, be multiplied. Does this just happen by accident?

We still might demand, of course, an explanation for why the ruling class is so good at identifying and promoting its interests, while the majority is not? But, again, there is an obvious answer: for isn’t it generally quite easy to identify your short-term interests when the status quo is to your benefit? In such circumstances, you favor the status quo! In other words, if the status quo provides tangible benefits to the few—lots of money, prestige, and power—is it any surprise that the few are well-disposed to the status quo, and are particularly good at thinking of ways to tinker with the status quo (e.g., repeal the already minimal estate tax) to increase their money, prestige, and power? (The few can then promote their interests for exactly the reasons Marx identifies: they own the means of mental production.)

By contrast, it is far trickier for the many to assess what is in their interest, precisely because it requires a counterfactual thought experiment, in addition to evaluating complex questions of socio-economic causation. More precisely, the many have to ascertain that (1) the status quo--the whole complex socio-economic order in which they find themselves--is not in their interests (this may be the easiest part); (2) there are alternatives to the status quo which would be more in their interest; and (3) it is worth the costs to make the transition to the alternatives—to give up on the bad situation one knows in order to make the leap in to a (theoretically) better unknown. Obstacles to the already difficult task of making determinations (1) and (2)—let alone (3)—will be especially plentiful, precisely because the few are strongly, and effectively (given their control of the means of mental production), committed to the denial of (1) and (2).

Teaching evaluations

I like getting teaching evaluations at the end of the term. That they are generally quite positive is surely one reason; but they are also informative, and have helped me improve my teaching over time. My favorite student comment from this past term:

"I was concerned about taking your class after viewing your web site because you are so hostile to Christians and conservatives there. I was very glad that you keep that out of the class and think you are one of the best professors at UT Law."

This was the only student (out of about 100 who completed evaluations this past term) to remark on the blog. And while I'm puzzled by the reference to hostility towards Christians (I am hostile to impositions of majority religions on minorities, not to Christians), I'm glad that a student coming in as a skeptic came out with a ringing endorsement. Unlike the Young Conservatives of Texas, I actually believe that the political views of the professor should not intrude in the classroom. In any serious subject, with intellectual content, there is no reason for politics to play any role.

What is "experimental philosophy"?

Joshua Knobe (Philosophy, Princeton) has a nice albeit brief account of what may prove to be the most important development in the field in recent years.

What the "Transfer" [sic] of Power in Iraq Actually Means

Historian Juan Cole:

"This entire exercise is a publicity stunt and has almost no substance to it. Gwen Ifill said on US television on Sunday that she had talked to Condaleeza Rice, and that her hope was that when something went wrong in Iraq, the journalists would now grill Allawi about it rather than the Bush administration. (Or words to that effect). Ifill seems to me to have given away the whole Bush show. That's what this whole thing is about. It is Public Relations and manipulation of journalists. Let's see if they fall for it.

"Allawi is not popular and was not elected by anyone in Iraq. The Kurds were sullen today. There were no public celebrations in Baghdad. When people in the Arab world are really happy, there is celebratory fire. They are willing to give Allawi a chance, but that is different from wholehearted support."

When can the government keep an enemy combatant?

This is a helpful chart.

Hamdi

Hamdi is the U.S. citizen “captured” in Afghanistan; the U.S. government claims he is an “enemy combatant,” while Hamdi maintains that he was, in effect, an innocent in the wrong place at the wrong time, and he demands the right to challenge his detention and his status as an “enemy combatant” in court. Having now read through rather quickly the four separate opinions in Hamdi, the case turns out to represent a rather striking mix of views, breaking down roughly as follows (corrections may be forthcoming, and are welcome):

The controlling opinion by Justice O’Connor (joined by Rehnquist, Kennedy, and Breyer) clearly rebuffs the government’s position, but provides the stingiest, as it were, remedy compared to the next two opinions. O’Connor finds that the “AUMF” (the Authorization for Use of Military Force enacted after September 11 and prior to the attack on Afghanistan) authorized the detention of citizens in Hamdi’s situation (this probably means AUMF does not authorize the detention of Padilla, who was arrested in Chicago and then declared an “enemy combatant”—which means the Souter or Scalia opinions are more likely indicative of what would happen in his case). Yet Hamdi still retains a due process right to challenge his detention and his classification as an “enemy combatant.” But this entails balancing the due process interests of Hamdi against the opposing governmental interests. So while “the citizen’s right to be free from involuntary confinement by his own government without due process of law” is “fundamental” (24), it is, like so many of our fundamental rights, still fit to “hang in the balance” with countervailing government interests. Justice O’Connor then strikes the “balance” as follows:

First, “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker” (26). So far, so good.

Second, “the exigencies of the circumstances may demand that…enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict.” In particular, hearsay may be admissible “as the most reliable evidence” and (this is very odd, and unexplained) “the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided” (27). This is a concession to the government’s position, but still mandates far more by way of process than the government had suggested might be due.

Third, and most alarmingly, Justice O’Connor explicitly leaves open “the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal” (31).

Souter and Ginsburg join O’Connor et al. in the result (remand for proceedings consistent with the O’Connor opinion), but not the merits of the argument. They find that the government has no authorization for holding Hamdi at all, and therefore he should be freed.

Scalia and Stevens reach essentially the same conclusion, but for somewhat different reasons in an opinion by Justice Scalia. Justice Scalia’s analysis is straightforward: “Hamdi is entitled to a habeas descree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus.” Since Congress has not suspended the writ (Justice Scalia, surely correctly, says that AUMF is not a suspension of the writ), that leaves (1), which hasn’t happened, and which would, in any case, submit Hamdi’s case to the jurisdiction of the courts (and with far greater protections than provided for in Justice O’Connor’s opinion). Note that Scalia also says that while the Constitution limits the “suspension [of habeas corpus]…to cases of rebellion or invasion,” it is up to “Congress rather than this Court” to make that determination with respect to September 11 and subsequent events (26). One worrisome possibility is that there will be a move, in the wake of this decision, to suspend the writ. In any case, I will say this for Justice Scalia: unlike some originalists who are purely opportunistic (remember Bork when he was on the D.C. Circuit?), Justice Scalia generally retains loyalty to his theory of constitutional interpretation across a wide range of cases—which leads him to results that don’t always fit his “conservative” reputation.

Only Justice Thomas comes down squarely in favor of fascism, opining that Hamdi’s “detention falls squarely within the Federal Government’s war powers” and adding that “we lack the expertise and capacity to second-guess that decision” (1). “[T]he Government’s overriding interesting in protecting the Nation” justifies depriving Hamdi “of a serious [!] interest [i.e., his freedom], one actually protected by the Due Process Clause” (20). Substitute Reich for Nation, and see how familiar it all sounds. Someone less (newly!) sensitive to the feelings of delicate right-wingers might even say that this opinion solidifies Justice Thomas’s status on the “lunatic fringe” of the Court. But I would not say that, ever again. I have been duly chastened.

UPDATE: A more detailed analysis of the opinion from Michael Froomkin (Law, Miami) is here.

More bad journalism

CNN's headline: "Mixed verdict on the terror war." Actually, it turns out to be a resounding defeat for the most appalling, fascistic overreaching by a U.S. Administration in at least fifty years. I can't recall feeling so relieved by a set of Supreme Court decisions as these.

Let's see if the other major media report it correctly.

UPDATE: A philosopher at SMU calls to my attention that the Dallas-Morning News--the folks who opined months ago in defense of teaching lies to schoolchildren--have outdone CNN. Their headline: "High court: Bush can hold citizens without charges, trial." This paper ought to be closed for incompetence.

ANOTHER UPDATE: The New York Times does better: "Supreme Court Affirms Detainees' Right to Use Courts." That at least captures what is significant about these cases--though I'm still waiting for, "Supreme Court Beats Back Fascistic Power Grab by Bush Administration" (OK, I'm kidding--but how about, "Supreme Court Victory for the Rule of Law and Liberty.")

STILL MORE: No surprise here, Britain's The Guardian does better: "Supreme Court Blow for Bush on Guantanomo."

AND ANOTHER: The Dallas-Morning News recoups...by running an Associated Press story that gets it right: "Court Deals Blow to Bush on Combatants." The story continues:

"The Bush administration must regroup legally and politically after the Supreme Court dealt a major setback to the government's anti-terrorism tactics since the Sept. 11, 2001 attacks.

"The high court refused to endorse the White House claim of authority to seize and detain terrorism suspects and indefinitely deny access to courts or lawyers while interrogating them.

"Monday's rulings in a trio of cases dealing with the rights of prisoners mean that detainees, whether potential terrorist threats or victims of circumstance, have greater rights to challenge their captivity in U.S. courts and force the government to explain itself."

Padilla Decision is out--and the Supreme Court Punts Again!!! (Update: But the rest of the news is very good indeed! Triumph for the rule of law!)

The full opinion is here. The key bit (p. 2): "Because this Court answers the jurisdictional question in the negative, it does not reach the question whether the President has authority to detain Padilla militarily."

Unbelievable. I can understanding punting on the Pledge case, but how could they do it on this?

Still reading...maybe there is an explanation.

UPDATE: Better news in the almost-as-important Hamdi case, involving a U.S. citizen captured in Afghanistan, but now held in the U.S. Full opinion is here. Key bit (page 2): four Justices (O'Connor, Rehnquist, Kennedy, Breyer) "concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." Souter and Ginsburg "concluded that Hamdi's detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant." (The dissenters: Scalia and Thomas--of course--and, oddly, Stevens...don't yet know why.)

This means there are almost certainly six votes for the same result for Padilla (whose claim for constitutional protection is even stronger, since he was arrested in the U.S.), once the procedural problems are cured. That's good news. Now the question is: why did the Court handle it this way? One possibility is to not deliver too many defeats to the Administration on one day; the writing is on the wall in the Padilla case, and so the Bush Administration has a chance to back down from its fascist posture in this case.

But still reading....

ANOTHER UPDATE: A colleague writes: "The Supremes partially reversed the Hamdi decision today, ruling that he has a right to challenge his detention and a right to counsel. They declined to rule on the merits in Padilla (a GVR [grant, vacate, remand] in light of Hamdi?). They reversed the D.C. Circuit in Rasul, holding (6:3, opinion by Stevens), that habeas jurisdiction extends to the Guantanamo detainees."

Good decisions! Hope for America!

STILL MORE: Via Stuart Benjamin (Law, Duke):

"I was struck by the dissent's language in Rumsfeld v. Padilla. The majority didn't reach the merits, because it found that the case had been filed in the wrong jurisdiction. Stevens' dissent (joined by Souter, Ginsburg, and Breyer) focused on the jurisdiction/venue issue, but (because in his view the Court should have reached the merits) his dissent ends with his view of the merits. Here it is, in its entirety (except that I have omitted the footnotes):

'Whether respondent is entitled to immediate release is a question that reasonable jurists may answer in different ways. There is, however, only one possible answer to the question whether he is entitled to a hearing on the justification for his detention.

'At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.

'Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.'

"This is pretty strong language. And it seems quite possible that, in another case where venue was proper, one or more of the five who didn't reach the merits would agree."

My only comment: strong language, but still not strong enough. Three cheers for Justice Stevens!

MORE ON PADILLA: From a colleague: "The Ct ruled 5:4 in Padilla, saying that the Southern District of New York did not have jurisdiction -- that he had to sue in South Carolina to prevent habeas forum shopping. The fact that the government had forum shopped by removing Padilla from the SDNY to place him in the 4th Cir. apparently escaped the majority's attention."

UPDATE: More on Hamdi here.

Public Blog Stats

Being a computing genius, I only recently realized I can set the blog stats for public viewing--if you click on the counter at bottom left, you can see the stats for this site. Is there any reason not to make them public? Let me know: bleiter at mail dot law dot utexas dot edu. Thanks.

Bush Destroys the United States (a continuing saga)

British journalist Patrick Seale writes:

"Although the Bush administration is reluctant to admit it, the United States is facing what is arguably its worst crisis since the Second World War. It is a crisis of leadership, of reputation, of military capability and of moral authority. A radical change of strategy and of high-level government personnel is urgently required, but can the embattled President George W Bush, whose qualities of mind and character leave much to be desired, bring it about?

"Few observers believe he can rise to the challenge. Newsweek this week described the administration as 'the most foolhardy civilian leadership in the modern history of the United States.' Referring to the war in Iraq, the news magazine wrote: 'American soldiers have been put in the wrong place at the wrong time for the wrong reasons.'

"Bush is coming to Europe this month in a desperate bid to boost his domestic standing and his international image, but the differences are too great to be papered over. Relations with key European countries have been strained almost to breaking point by his earlier disdain for his allies, by his cult of military power, his unilateralist policies, his dangerous doctrine of pre-emption, and his apparent indifference to basic civil rights and the Geneva Conventions.

"Writing this week in Britain's Financial Times, Lawrence Freedman, Professor of War Studies at King's College, London, said: 'a vacuum has opened up at the heart of world politics where US leadership ought to be found.'

"Bush, he added, had 'gambled on Iraq and lost. The US could no longer impose its will on Iraq 'because it lacks the moral authority to do so.'

"These remarks by a leading British commentator are significant because Freedman had been an early supporter of the war. They have been echoed by many senior Americans.

Moral philosopher Doris from UC Santa Cruz to Wash U/St. Louis

John Doris, who has been one of the leaders in bringing empirical psychology in to contact with moral philosophy (perhaps the liveliest development in the field in recent years), will leave the University of California at Santa Cruz for Washington University, St. Louis, starting in January 2005, and with appointments in both Philosophy and the Philosophy, Psychology, and Neuroscience Program.

This caps a dramatic couple of years for the Wash U Department. After a series of departures and retirements in the late 1990s and early 2000s, the Department didn't even make the top 50 in the fall 2002 PGR surveys. Since then, they've added at the tenured ranks Jose Bermudez (philosophy of mind) from the University of Stirling and Dennis Des Chene (early modern) from Emory University, as well as (this year), four more tenured faculty: Doris, John Heil (philosophy of mind) from Davidson College, Clare Palmer (environmental ethics) from Lancaster, and Kit Wellman (political philosophy) from Georgia State University. (Wellman's father, Carl, was a longtime member of the Wash U Department [now retired], who also specialized in moral/political philosophy. Kit has emerged as one of the leading political philosophers in the U.S. of his generation.) In addition, they appointed this year Gillian Russell (philosophy of language) from Princeton at the junior level.

With this infusion of philosophical talent, I should be astonished if Wash U were not solidly back in the top 50 at least. If, as I hear is likely, the Department continues to enjoy strong administrative support on a par with what they have recently enjoyed, I would bet on Wash U to establish itself in the top 25 over the next few years.

On the flipside, it is striking that not long ago UC Santa Cruz had on its faculty David Chalmers (now at Arizona, and recent recipient of an Australian Federation Fellowship), Alva Noe (now at Berkeley), as well as Doris. What might have been....

The Task of Higher Education in Blairite Britain

The quote from Nietzsche on the "task of higher education"strikes rather too close to home in Britain. Michael Ostuska (Philosophy, University College London) writes:

"Nietzsche's is a depressingly accurate description of the task of higher education in Blairite Britain. In response to pressure from government ministers and civil servants, PhD students at one fairly well-known British University are now duty-bound to keep a 'Graduate School Research Student Log' which is obsessively devoted to the 'self-audit' of their 'development of appropriate skills'. At the end of each year PhD students are supposed to describe and 'where possible, provide evidence for' their level of development of skills such as the following:

'Record Keeping: ability to keep accurate and comprehensive records in a systematic fashion which demonstrate academic purpose and probity'

'Time management: ability to schedule multiple personal and research specific tasks within a designated work period and monitor progress'

'Team work: ability to work in co-operative partnerships with supervisors, team leaders, peers and support staff, ability to contribute towards the achievement of common goals'

'Personal communication: ability to converse effectively with individuals, to appreciate their viewpoint and to act appropriately, ability to give and receive constructive feedback'

'Career planning, CV development: ability to take effective ownership for your career progression by setting realistic and achievable goals and to demonstrate awareness of the transferable nature of research skills to other work environments'"

What must it be like to be David Brooks?

He "writes" a column which largely consists of quoting Michael Moore saying things that are more or less true, but which Brooks takes--self-evidently apparently--to be false, and to be discredited merely by quoting them.

He purports, in the same column, to demean Moore by associating him with two of the most significant intellectual figures of the 20th-century, Chomsky and Sartre.

Forget bats (as in Nagel's famous question, "what is it like to be a bat?"): what must it be like to be David Brooks? I can't imagine.

"No ideas and the ability to express them--that's a journalist"--Karl Kraus.

Thus Spoke Nietzsche

"'What is the task of all higher education?' To turn men into machines. 'What are the means?' Man must learn to be bored. 'How is that accomplished?' By means of the concept of duty. 'Who serves as the model?' The philologist: he teaches grinding. 'Who is the perfect man?' The civil servant. 'Which philosophy offers the highest formula for the civil servant?' Kant's: the civil servant as a thing-in-itself raised up to be judge over the civil servant as phenomenon."

--Twilight of the Idols, "Skirmishes of an Untimely Man," sec. 29.

(Note: Nietzsche was trained as a classical philologist, and so treats, throughout his career, philology as the paradigm instance of scholarly activity, in both its good and bad senses.)

Conservative Front Groups and Their Misleading Names

Pharyngula asks:

"Have you ever noticed how reactionary conservative organizations are so ashamed of their causes that they give them names that represent the ideals of their opponents? For example, 'sound' science has nothing at all to do with good science—it's a smokescreen for hiding a corporate/political agenda under the pretense of legitimate scientific research. Or look at the Discovery Institute; it's about anything other than legitimate discovery, and is all about putting a pseudo-scientific veneer over old-fashioned blinkered religious ignorance.

"Add another example to the list: Stemcellresearch.org. It sure sounds like it ought to be an advocacy group for stem cell research, doesn't it? When you look more closely at their agenda, though, what you discover is that its purpose is to stop stem cell research. I have no idea why they couldn't have been honest and just taken the domain name 'stopstemcellresearch.org'. It's available."

Is Nothing Sacred?

Professor Bainbridge (Law, UCLA) has the details here.

Freedom Isn't Under Attack by the Government Only in the United States...

...as this new site about the assault on civil liberties in Britain--courtesy of John Gardner, the Professor of Jurisprudence at Oxford--makes clear.

Most Important U.S. Supreme Court Decision of the term (of the decade?) due on Monday

On Monday (maybe as late as Tuesday), we'll find out if the rule of law still exists in the United States, when this case is decided. The issue is fairly simple: can the President of the United States, without any review by the courts, arrest United States citizens and hold them in communicado and indefinitely? If the answer is yes, then we're all doomed. The "rule of law" is a complex ideal, but a de minimus requirement on all understandings is that there is independent review of official actions that infringe upon fundamental rights and liberties. I am hopeful the Supreme Court will do the right thing in this case, given how fundamental the values are that are at stake.

UPDATE: According to this site, the decision could come as late as Thursday.

Why is "Butterflies and Wheels" Posting Nonsense Like This?

"Butterflies and Wheels" purports to be "fighting fashionable nonsense," and they do some of the time.

So why are they posting prominent links (this used to be on B&W's front page) to tabloid trash like this, which misstates Foucault's views from top to bottom, and offers no rational criticism of any view he actually held, while offering up a series of fallacious arguments (ad hominems primarily--you would think Ms. Benson of B&W might notice that references to Foucault's homosexuality do not refute his ideas).

And I say this as a Foucault skeptic! Foucault's corpus is, to put the matter gently, a mixed bag; his reflections on matters epistemological are a muddle, yet at the same time he did more than anyone since Max Weber to fill out our picture of "the iron cage of modernity."

So what is going on at "Butterflies and Wheels"? If this were an isolated incident, one would not think much of it. But, alas, it is not.

More on the topic soon.

Is Philosophy at the "peak of maturity" or a subject in decay?

Dr. Lillehammer also raises an interesting question at the end of his review:

"Is it a sign of maturity or decay when an area of philosophy reaches a stage where virtually every possible view, however implausible, is represented by a treatise-length study written in its defense? Do contemporary debates about modality, properties, causation, or the mind-body problem represent philosophy at its peak of maturity, or are these debates paradigm examples of a subject in decay?"

The question is not unrelated to the worry raised by Daniel Dennett in "The Higher Order Truths of Chmess" . Dennett asks us to imagine the game of "chmess," which "is just like chess except that the king can move two squares in any direction, not one." Dennett notes that, "There are just as many a priori truths of chmess as there are of chess (an infinity), and they are just as hard to discover. And that means that if people actually did get involved in investigating the truths of chmess, they would make mistakes, which would need to be corrected, and this opens up a whole new field of a priori investigation, the higher order truths of chmess."

But says Dennett, noting Donald Hebb's dictum that, "If it isn't worth doing, it isn't worth doing well,":

"Each of us can readily think of an ongoing controversy in philosophy whose participants would be out of work if Hebb's dictum were ruthlessly applied, but we no doubt disagree on just which cottage industries should be shut down. Probably there is no investigation in our capacious discipline that is not believed by some school of thought to be wasted effort, brilliance squandered on taking in each other's laundry. Voting would not yield results worth heeding, and dictatorship would be even worse, so let a thousand flowers bloom, I say....

"One good test to make sure you're not just exploring the higher order truths of chmess is to see if people aside from philosophers actually play the game. Can anybody outside of academic philosophy be made to care whether you're right about whether Jones's counterexample works against Smith's principle? Another such test is to try to teach the stuff to uninitiated undergraduates. If they don't 'get it,' you really should consider the hypothesis that you're following a self-supporting community of experts into an artifactual trap."

I've opened comments, and invite philosophers to react to the issues raised above; no anonymous postings, as always. And please bear in mind that I take neither Dr. Lillehammer nor Professor Dennett to be disputing Timothy Williamson's point in his contribution to The Future for Philosophy that, "Impatience with the long haul of technical reflection is a form of shallowness, often thinly disguised by histrionic advocacy of depth. Serious philosophy is always likely to bore those with short attention-spans.”

UPDATE: There is an exceptionally lucid and quite compelling explanation here by Daniel Nolan (Philosophy, St. Andrews) of why the "Twin Earth" thought experiments (which Chris Bertram [Philosophy, Bristol] had mentioned on the same site as a possible example of "chmess") are philosophically important, illuminating fundamental issues that philosophy ought to address.

The "companions in guilt" argument in philosophy

Hallvard Lillehammer (Philosophy, Cambridge) makes a nice point about a common (and not very compelling, to my mind) argumentative move in this recent review of a very nice new book by Russ Shafer-Landau:

"The basic thrust of companions-in-guilt arguments in ethics is the idea that if we reject objectivism about morality, then we are forced by parity of reasoning to reject objectivism about its target companions. But as the rejection of objectivism about the target companions is unacceptable, we should retain an objectivist view about morality as well. In spite of its frequent occurrence in the contemporary literature, the general prospects of the companions-in-guilt strategy for ethics remain poorly understood. The potential of the strategy clearly depends in part on the nature of the companions in question. Yet the nature of morality’s alleged companions is often itself controversial. It is therefore often unclear what is gained by linking morality to some alleged companion for the purposes of vindicating either its epistemological or metaphysical credentials.

"Frequently cited companions in guilt for morality are epistemology, mathematics, the mind, and philosophy itself. Each of these is put to service by Shafer-Landau at some point in this book. Moral skeptics and antirealists are challenged by claiming that a) we have no more grounds to doubt the existence of reasons for action than we have to doubt the existence of reasons for belief and the inferential relations between them (p. 203; 236); b) intrinsically normative moral facts are no more mysterious than intrinsically normative mathematical facts (p. 206)); c) since folk-psychology is itself normatively loaded (desires are responses to reasons), a purely descriptive metaphysic entails eliminativism about the mind (pp. 33-37); d) ethics is in the same boat as contemporary analytical philosophy in its methodological conservatism and its failure to produce provably correct accounts of its subject matter (p. 220; 236; 264). These claims to companions are accompanied by further claims of analogy between morality and alleged companions. Thus, commonsense appeals to perceptual memory (p. 263) and the practical expertise of mathematicians, mechanics, and teachers of Latin (p. 298-9) are introduced to elucidate the reliabilism that allegedly explains how non-inferential moral knowledge is possible.

"Perhaps the most interesting thing about these alleged companions in guilt is that none of them are obviously innocent. It is not as if no serious philosophical doubt has been voiced over the last century or so about epistemology, mathematics, folk-psychology, or indeed philosophy itself. This fact is cause for hesitation about the usefulness of appeals to companions in guilt, both in ethics and elsewhere."

UC San Diego Makes Bid for Medievalist Pasnau at Colorado

Robert Pasnau (medieval philosophy, metaphysics) is the latest philosopher at the University of Colorado at Boulder to have an outside offer, this one from the University of California at San Diego. So far, this year, George Bealer has accepted an offer from Texas, Luc Bovens from the London School of Economics, and Christopher Shields from Oxford (some of these faculty will technically be "on leave" from Colorado, so there is a chance they might return). In addition, Alan Carter now has an offer from La Trobe in Australia. Colorado did hire Dan Kaufman (early modern) from Florida this year, and will no doubt be doing other hiring next year to make up for some of these losses, actual or very likely.

The Relevance of Motives, or the Hermeneutics of Suspicion, or Ricoeur Meets Gettier

ORIGINALLY POSTED OCTOBER 10, 2003

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There is some discussion in the blogosphere about Paul Krugman's tendency to make claims about the "motives" of Bush & co. One reasonable defense of the practice comes from Crooked Timber. The discussion, however, brought to mind an issue that arises with respect to what Paul Ricoeuer dubbed "the hermeneutics of suspicion," the practice of critics like Marx, Nietzsche, and Freud of attacking certain views by exposing their real motives or origins. In general, I don't find the blogosphere conducive to substantial philosophical argument, but in this case, and since it bears on the Krugman discussion, let me just post part of a forthcoming paper on "The Hermeneutics of Suspicion" (in The Future for Philosophyvolume) that constitutes a defense, as it were, of the epistemological foundations of Krugman's practice (not to mention the more sophisticated forms in Marx, Nietzsche, and Freud):

On the reading urged here, we should understand Marx, Nietzsche, and Freud as seeking a naturalistically respectable account of how we arrived at our current, conscious self-understandings. But arriving at such an understanding of the causal genesis of our conscious self-understandings is not--obviously, at least--equivalent to a “hermeneutics of suspicion,” to an understanding that should make us regard them as “suspect.” Why, to put it simply, is the correct naturalistic account of the genesis of our beliefs a reason to make us suspicious of those beliefs? It is useful, I believe, to take a short, though perhaps surprising, detour through Anglo-American epistemology of the past forty years to see how and why the “naturalistic” turn of Marx, Nietzsche, and Freud remains philosophically important.

In 1963, in a remarkably brief paper, Edmund Gettier convinced most philosophers that the received wisdom of millenia about the concept of knowledge was mistaken: “knowledge” was not simply a matter of having a justified, true belief, since one could adduce examples of beliefs that were both “justified” and “true” but which didn’t seem to be cases of “knowledge.” The Gettier counter-examples to the “justified true belief” analysis of “knowledge” all had the form of the following example:

Suppose Smith and Jones apply for the same job. And suppose Smith is justified in believing both that (1) Jones will get the job, and (2) Jones has 10 coins in his pocket. Smith would then also be justified in believing that (3) the person who gets the job will have 10 coins in his pocket. In fact, Smith (not Jones) gets the job and, as it happens, he has 10 coins in his pocket. (3) turns out to be a justified true belief, but it doesn’t seem that Smith “knows” (3). Of course, Smith should believe (3), but not for the reasons that he does. He has a true belief, but not knowledge.

The legacy of the Gettier counter-examples was a powerful one: a justified true belief isn’t “knowledge” when the justification for the true belief isn’t the cause of why the agent holds the belief. As Philip Kitcher put the point, in explaining the stimulus Gettier provided to the “naturalistic” turn in epistemology: “the epistemic status of a belief state depends on the etiology of the state.” Beliefs caused the “wrong” way suffer epistemically.

We can understand, now, the logic of the hermeneutics of suspicion as exploiting precisely this point about the epistemic status of belief: we should be suspicious of the epistemic status of beliefs that have the wrong causal etiology. That’s the lesson of the Gettier counter-examples, and it is the lesson which underwrites the suspicion that Marx, Nietzsche, and Freud recommend by way of providing alternative causal trajectories to explain our beliefs. To be sure, beliefs with the wrong causal etiology might be true; but since they are no longer cases of knowledge, we have no reason to presume that to be the case. To the contrary, we now have reason to be suspicious--nothing more--of their veritistic properties.

An Improving Academic Job Market?

John Oberdiek (Law, Rutgers-Camden) calls my attention to a new Bureau of Labor Statistics study suggesting a sharp upturn in the number of academic jobs over the next decade. A journalistic version of the main conclusions is here.

Of course, some will recall that Bill Bowen, former Princeton President, published a study more than a decade ago making a similar forecast for the 1990s, and that booming higher education job market did not materialize. There are similar caveats attached to this latest forecast.

The main conclusion, which is on page 19 of the BLS report, is that there will be a 38% increase in the number of "postsecondary teachers" between 2002 and 2012. The BLS describes this as "much faster than average growth," but notes that "new opportunities for postsecondary teachers" will be "particularly at community colleges and for-profit institutions that cater to working adults." The BLS adds: "A rising young-adult population also will spur growth. Many new jobs are likely to be part time."

As the CNN report summarizes it:

"Even though the job market has been fairly dismal in recent years for tenure-seeking Ph.D.s in many fields of academia, BLS projected increased demand for post-secondary teachers for several reasons.

"First, it's likely a large number of tenured professors who started teaching in the 1960s -- when there was a large expansion of the education sector -- will be retiring over the next several years, said BLS economist Jon Sargent.

"There's also been growth in the number of community and junior colleges, as well as in technical educational institutions, he said.

"Whether schools will seek to hire as many tenured professors or will opt instead to bulk up on lower-paid adjunct professors, as some institutions have done, remains to be seen. If schools reduce the number of tenure track positions, it's possible the median earnings for the occupation could fall."

So it's a mixed picture when looked at more closely.

Environmental Ethicist Palmer from Lancaster to Wash U/St. Louis

Clare Palmer (environmental philosophy and ethics) at Lancaster University has accepted a joint appointment as Associate Professor of Environmental Studies and of Philosophy at Washington University, St. Louis, to begin this fall.

A Brewing Crisis in Judicial Ethics

Via the Curmudgeonly Clerk, I learn of this violation of a lesser-known provision of the judicial code of conduct. (Warning: Although I'm confident in the impropriety of this conduct, I am not an expert on judicial ethics.) See the last paragraph on page 2 and page 3 of the Oklahoma Attorney General's petition for removal of the judge for the key facts.

Let us hope this is not the tip of an iceberg of malfeasance!

Leading "public intellectuals" in the UK

From Chris Bertram (Bristol, Philosophy), I learn of a listing of 100 "public intellectuals" in Britain compiled by Prospect Magazine, from which they hope to learn, by the scientific method of e-mail voting, who are the top five. There are several philosophers and social/political theorists on the list--A.C. Grayling, John Gray, Mary Warnock, Onora O'Neill, W.G. Runciman, Quentin Skinner, Anthony Giddens, Mary Midgley, Roger Scruton--though Professor Bertram expresses the unusually forthright view that, with the exception of O'Neill, "the other philosophical options are terrible." Being a fan of A.C. Grayling's commentaries, I'm not sure this is entirely fair; the U.S. would benefit from having someone like Grayling writing in major newspapers.

Of local interest is the fact that my colleague Philip Bobbitt makes the list, as a "theorist of law and conflict"; his work on war, history, and strategy is even better-known and more widely discussed in the U.K., than here (where, at least among legal academics, he still remains best-known for two earlier works, Tragic Choices [with Calabresi] and Constitutional Fate). Philip is the only American law professor who makes the list of major public intellectuals in Britain. Indeed, the only other US-based scholars I spot on the list are the historian Simon Schama, now at Columbia; Michael Ignatieff, now at Harvard's Kennedy School I believe; and Niall Ferguson, now at Harvard. But there may be some others who are unknown to me.

From a U.S. perspective, the most striking thing here is how many of those on this list are actually serious scholars and intellects. I can recall, once, in high school in the 1970s, a classroom discussion in which the teacher suggested that the "only" public intellectual in the U.S. was William Buckley! And could you imagine a Marxist historian like Eric Hobsbawm making the list in America?

But, seriously, who among philosophers commands any attention in the public culture in the U.S.? Peter Singer, happily, yet only because of the political controversy that engulfed his appointment at Princeton; Ronald Dworkin, to a very limited extent (his main public forum is The New York Review of Books, whose readership is primarily academic); Thomas Nagel, again to a very limited extent (though at least he makes it periodically to The New Republic, but mostly for academic-style reviews). Probably the two most visible philosophers in popular culture are Martha Nussbaum and Richard Rorty, a fact that is itself revealing both about the nature of philosophy and the nature of the United States.

Why is it so easy to get tenure in law schools?

ORIGINALLY POSTED ON AUGUST 23, 2003

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So asks a colleague in philosophy, who was recently a tenure referee for a law professor at a very reputable law school who got tenure, notwithstanding what struck the colleague as quite weak work. The answer is somewhat complex, and perhaps a bit speculative, but it goes something like this:

(1) Up until roughly the 1970s, law schools were essentially "trade" schools, tightly linked to the profession and to practice: law professors digested what judges were doing, and explained it to lawyers and judges, and to their students.

(2) When law schools were essentially "trade" schools, the traditional qualifications for law teaching--excellent grades in law school classes, a published student note in the Law Review (which digested what judges were doing, and explained it), clerkship(s) with excellent judges and/or practice experience with excellent lawyers--worked very well: unsurprisingly, someone with all those qualifications was usually damn good at digesting what courts had been doing and explaining it to judges, lawyers, and students.

(3) Folks with those qualifications also could earn a lot of money in the practice of law, and since the practice really wasn't that different than the scholarly side--a bit less relaxed, to be sure, a bit less reflective--law schools, to recruit these super-smart lawyers, had to both pay reasonably well (better than the liberal arts, to be sure!) and offer something that practice couldn't necessarily offer, namely, job security (i.e., tenure, or life-time employment, barring gross misconduct). And since the traditional qualifications were actually good predictors of success as a legal scholar on the "trade school" model, it was hardly problematic to start with a powerful presumption that everyone you hired, who had the traditional qualifications, is someone you had just hired for life.

(4) Starting in the 1970s, this whole paradigm fell apart, at least on the scholarly side. Starting in the 1970s, law schools started to move away from the trade school model, and become more closely integrated with the rest of the university. The rise of interdisciplinary scholarship began in earnest. The University of Chicago Law School, which in the 1940s was considered clearly the inferior of Northwestern, was the pioneer in law & economics in the 1970s, and moved, accordingly, in to the very top ranks of law schools. Michigan, which in the 1970s was a top five school on a par with Stanford and Columbia, began hiring PhDs in history, in sociology, in philosophy. A quarter-century later, the vast majority of faculty hired at top law schools have not only JDs, but PhDs in some cognate discipline; and even those without PhDs typically do interdisciplinary work, though often not of high quality.

(5) The interdisciplinary turn in legal scholarship, and the move away from "trade school" scholarship, meant that law schools, especially "top" law schools, became increasingly remote from the practice of law. This development was immortalized by Judge Harry Edwards of the U.S. Court of Appeals for the D.C. Circuit, who wrote a 1992 article on "The Growing Disjunction" between the world of practice and the world of scholarship. By then, however, it was far too late to change things. Yale Law School, the leading per capita producer of new law teachers (by a dangerous margin), and Harvard the leading gross producer of new law teachers, were squarely in the interdisciplinary, non-trade school camps--which meant that the law teachers they were training who would take up posts at Podunk U. had a conception of what was worth doing in legal scholarship that would simply reinforce the growing disjunction.

(6) Yet the change from a trade school to a PhD-program model for legal scholarship did not result in a change in tenure standards. (For awhile it didn't even result in a change in qualifications for new hires, which partly accounts for the huge amount of incompetent philosophy, history, economics, social science, etc. that appeared and still appears, alas, in law reviews. That's now changed in economics and history and some of the social sciences; it's starting to change in philosophy, though more erratically.)

Deja Vu All Over Again

In these slow summer months, when I finally have a chance to make real progress on writing projects (now that all grading is done as well), I'm going to be posting a bit less new material, but I thought I'd also repost some items from early on that, based on feedback, seem to be of particular interest. And since readership is 5-10 times higher now than in the first three months, some new readers may also find these early items of interest. I'll flag such items with "Originally Posted on _____."

"Harold Koh is the incoming Dean of Harvard Law School"

So said National Public Radio this morning while introducing incoming Yale Law School Dean Harold Koh, an international law expert, for a segment on the Bush Administration's torture memos.

No doubt, this produced much consternation in New Haven and Cambridge, Mass. But as far as the real world is concerned, it appears it's half-a-dozen of one, six of the other.

Texas Taliban Hypocrisy Department

Courtesy of Off the Kuff.

A Declaration Calling for the Resignation or Removal of Attorney General John Ashcroft

The statement and petition are here. Do consider signing.

"God Bless America"

So says the gifted and incisive Philippino writer Red Constantino in this piece (scroll down). An excerpt:

"One ghastly day in May, at close to three in the morning, a US helicopter fires its missiles at the village of Mukaradeeb in western Iraq. 'Coalition forces came under hostile fire and close air support was provided,' the Pentagon explains later. The target was 'a suspected foreign fighter safe house,' the deputy director of U.S. military operations in Iraq, Gen. Mark Kimmitt, adds.

"Once the smoke peels away from Mukaradeeb, the counting begins. Over 40 people are dead, many of them women and children. It was a wedding party.

"Almost a year earlier, in the early hours of a July morning, the U.S. Air Force pounds the Afghan village of Kararak with bombs. 'Close air support from U.S. Air Force B-52 and AC-130 aircraft struck several ground targets, including anti-aircraft artillery sites that were engaging the aircraft,' explained the U.S. Central Command in Tampa, Florida. By the end of the attack, over 40 people are dead -- all of them civilians, many of them children. Another wedding party.

"In Southeast Asia over a hundred years ago, the American annexation of the Philippines has just commenced and the crescendo of carnage is nearing a state of continuous climax. In a humid theater somewhere in the ex-future first republic of Asia, the 11th Cavalry encounters a festive gathering -- another wedding party, of course. The soldiers fire into the throng, kill the bride and two men, and wound another woman and two children. The cursory statement from the Army in response to the atrocity, which explains that 'American troops ran into a beehive of insurgents and responded valiantly with covering fire,' has yet to be discovered. We are certain, however, that it's tucked somewhere in the growing scrapbook of imperial nuptials, the remedy to insatiable greed.

"Till death do us part?

"The exchange of vows under the American boot has been going on for some time now. Everyone is invited, depending on the matrimonial gift one brings. The wedding of avarice with gluttony: imperial groom -- that ugly, muscular, festering wound of a suitor -- seeks and swallows lonely girl, professing love, the good life, and liberty. We don't do torture; we don't occupy; we don't do massacres; we reject Satan and all other evildoers.

"'Those are my principles,' said Groucho Marx. 'If you don't like them, I have others.'

"What a curious thing, today's trends. The rage is Abu Ghraib. The shame of the few 'bad apples' that have sullied the good name of the United States. The Rumsfeld memorandum. The August 2002 memo on 'standards of conduct for interrogation' prepared by the misnamed Justice Department's Office of Legal Counsel. The isolated incidents.

"Yes. The isolated incidents.

"In 1901, in the course of interrogating 'treacherous' Filipinos who did not have the good sense to accept America's seizure of the Philippines, Lieutenant Frederick Arnold and one Sergeant Edwards were accused of torturing Filipino prisoners. Their acts of 'prisoner abuse'? Stripping a young man naked, then subjecting him to the water cure (the essential memory-recovery medication of the occupation army's battle kit and predecessor to today's 'water-boarding'): The prisoner's mouth is forced open to respectfully facilitate down his throat five to ten gallons of water (or whatever his bloated stomach can endure). Once filled up, the interrogators politely step on the prisoner's tummy until the prisoner blurts out the desired information.

"For data validation purposes, the same prisoner is interrogated once more by his American liberators and 'whipped and beaten unmercifully with rattan rods' and 'then strung up by his thumbs.' Efficiency is everything.

"Another feat of the imagination -- before questioning, a strip of skin is cut from a Filipino prisoner's ankle and attached to a piece of wood. Then 'the flesh' is coiled 'with the wood.' Think can-opener."

Conferences on New Books by Wettstein and Watson

PGR Advisory Board member John Martin Fischer has called to my attention two public conferences that his department at the University of California at Riverside is hosting this coming academic year to celebrate forthcoming books by UCR philosophers Howard Wettstein and Gary Watson. More details, for those who might be interested in these events, are here.

La Trobe in Australia Making Bid for Philosopher Carter at Colorado

La Trobe University in Australia is trying to recruit Alan Carter (political philosophy, ethics, environmental philosophy and ethics) in Philosophy and Environmental Studies at the University of Colorado at Boulder to be the new Chair of their Department.

The First-Ever Blogospheric Book Promotional Tour Has Arrived!

Cass Sunstein (Chicago, Law)--whose new book for this year is about to come out--is "guest-blogging" at two different blogs with a lot of constitutional law coverage: Volokh (UCLA, Law) and Balkin (Yale, Law). In both cases, it appears the point is to introduce and promote his forthcoming book on FDR and "the second Bill of Rights." The Volokh blog is, of course, no stranger to self-promotion, but this is an interesting change of pace, ideologically and otherwise.

The Extreme (not "lunatic," since we do not want to use words that agitate sensitive right-wing readers, ever) Justice Thomas

Yet more opinion on the issue of the moment; this from Professor Newsom of the law school at Howard University:

"I don't know whether Thomas' position is extreme or not, as an *abstract* proposition. I do know that the practical consequences of his views would be horrendous for religious minorities. Without Laycock's understanding of the Establishment Clause as implicating individual freedom as well as structural or federalism concerns, then, if we adopt Thomas's views, religious majorities can ride roughshod over religious minorities, and it remains to be seen if the Free Exercise clause could provide a sufficient bulwark or protection against majoritarian overreaching. To bet everything on the Free Exercise clause is a risky proposition, perhaps even extreme. And it does not help any that Thomas, I think, has taken a niggardly view of the protections afforded minority religious interests under the Free Exercise clause. (His opinions and votes in Establishment Clause cases suggest that the individual religious rights don't count but for so much.) In his world, the bet is a clear loser.

"It might be extreme, therefore, for a Supreme Court Justice to bandy about a view of an important part of the Bill of Rights without having thought through, or, at least, acknowledged and taken responsibility for, the practical real-world consequences of his or her views. If Thomas intends the consequences that I have supposed, then (1) his views are not credible and (2) may well be extreme, deserving of the opprobrium heaped upon them."

It might, indeed.

An Embarrassing Year for the Harvard Law Review

The politicization of the Harvard Law Review, and the concomitant collapse of scholarly standards, keeps getting worse. First, there was "L'Affaire VanDyke," in which a student editor of the review published an incompetent review of a book defending the constitutionality of teaching Intelligent Design, a review that could not have survived actual cite-checking.

Now Harvard Law School professor Margo Schlanger has found it necessary to take the extraordinary step of replying to a student Note attacking her work. Professor Schlanger's reply is in the June 2004 issue of the Harvard Law Review, beginning at 2799. She writes:

"I feel compelled to respond to a recent student-written Note that critiques my Article, Inmate Litigation, published last year in the Review. The Note aims to expose my work as an ('at least . . . unconscious') exercise in left-leaning political argumentation in the guise of technocratic, quantitative data-crunching. The accusation of covert politics is puzzling. My piece employed careful quantitative and qualitative empirical techniques to evaluate a statute, the Prison Litigation Reform Act (PLRA), that restricts the legal rights of some of the most disempowered and vulnerable people in this county. The politics of that inquiry are clear, and I made no attempt to hide them: I think that the outcome of such systematic investigation matters--that it is wrong to curtail litigation rights, even of inmates, if the effect is to deny redress to victims of unconstitutional misconduct or if the policy change is based on false factual arguments. Unlike the Note, that is, I would hold Congress accountable for both the premises on which it rested inmate litigation reform and the results of that reform. The anonymous Note author's (shocked, shocked!) discovery that my piece was driven by such an agenda, hidden in plain sight, hardly requires much analytic insight.

"But whatever one's politics, I believe that there is something to be said for fair and careful use of data, as well. Unfortunately, these qualities are nowhere to be found in the Note. Instead, its author engages both in egregious misreading of my piece--mischaracterizing both my arguments and the data on which they rest--and in illogical argumentation that hides rather than clarifies the meaning and effects of statutory provisions. These failings are particularly unfortunate because they obstruct serious policy debate, which is what my piece attempted to promote...."

Professor Schlanger then documents a series of misreadings and mistakes, worthy of, well, Mr. VanDyke. She concludes:

"I could continue, but I think the point is made. I am confident that my Article (like every intellectual project) has flaws. But I am equally confident that I did not commit--either consciously or unconsciously--the kind of ideologically driven sleight-of-hand that the Note simultaneously imputes to me and itself exemplifies. By my lights, aspirations to fairness and care are not mere prattle, covering for rawer politics, but are (or ought to be) real constraints on scholarship and policy alike. Unfortunately, these appear not to be aspirations the Note shares, and the result is to impede rather than advance both legal and policy analysis."

So what is going on at the Harvard Law Review? Why is the alleged High Church of liberalism, publisher of the most widely read and circulated law review in the nation, permitting right-wing hacks to ruin the reputation of its leading journal? Hopefully, next year's editorial board will do better.

It "pays" to be a Supreme Court clerk

So reports this article:

"The intense annual competition to lure elite Supreme Court law clerks to top law firms is reaching record heights this year, with some firms offering jaw-dropping hiring bonuses of $150,000 or more.

"These bonuses, added to base salaries in the third-year associate range, make it likely that some of the Court's 35 law clerks this term will be paid upward of $300,000 the first year they leave their justice's chambers. By contrast, Chief Justice William Rehnquist is paid $203,000 a year, and associate justices make $194,300."

This development is symptomatic of the acceleration of the "star system" economic culture in the United States; even fifteen years ago, the norm at top firms would have been to offer a bonus of, perhaps, 10K for each year of clerking, with no distinction between the Supreme Court and any other federal clerkship.

The Texas Republican Party Platform...

...is a frightening document, but Jonathan Ichikawa has found even more perversity buried in the bowels of the document.

Still More on Justice Thomas and the "Lunatic Fringe"

From the LA Times (registration required), still more on Justice Thomas's opinion in the Pledge case:

"The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, called Thomas' view 'breathtakingly radical.'

'Mississippi could be officially Baptist, and Utah could be officially Mormon. If his viewpoint ever became the majority on the high court, it would tear our country apart along religious lines,' he said.

"Constitutional scholars in the area of religion credit Thomas with reviving a historical, if now outdated, view of the 1st Amendment.

"'I thought his was the most interesting opinion in the pledge case. Thomas is right as a matter of history,' says Richard W. Garnett, an associate professor at the University of Notre Dame Law School. 'But I think most people would see it as water under the bridge.'

"Others were less charitable. 'This is a pretty astonishing view. No one [among past justices] has gone remotely this far, and I don't think he'll get a second vote for it,' said University of Texas law professor Douglas Laycock.

"'He is a hard-nosed originalist who looks back to 1791,' when the Bill of Rights was ratified, Laycock said. 'He acts as though the Civil War didn't happen, or it didn't matter.'"

For more on the views of Professors Garnett and Laycock, see here.

And Another new Law Dean: Michael Schill from NYU to UCLA

Moments after the last posting, I learn that NYU's Michael Schill, an expert in legal issues related to real estate and urban planning, will be the new Dean of the law school at UCLA. The press release is here.

This caps a brutal year for NYU, in which the law school lost two of its star recruits of recent years to Deanships (Schill had been recruited from Penn, and Kramer, who had been recruited from Michigan, is leaving for Stanford); is losing its top young corporate scholar, Robert Daines, to Stanford; and lost Henry Hansmann, another top corporate and law and economics scholar, back to Yale after less than a year.

CORRECTION: NYU's Richard Pildes, a leading constitutional law and voting rights scholar, does have an offer from Harvard Law School, but has not yet accepted it. Sorry for that error!

UPDATE: Stephen Bainbridge (UCLA, Law) notes that I have commented on NYU's fortunes, but not UCLA's in landing Schill as Dean. While it's a "plus" in the abstract to land as Dean an accomplished scholar from a stronger school, the simple truth about Deanships is that the job is so hard, and requires skills so unrelated to scholarly aptitude, that it is impossible to comment on decanal choices unless one really knows the candidate well, meaning, at least, personally and via professiona interactions. I have no knowledge of Professor Schill in the relevant contexts. If anything, it is more likely that Steve Bainbridge has insight on this score, from the interview process. So what sayeth Steve?

Tax Scholar Schizer to be new Columbia Law Dean

The Columbia press release is here. Columbia's last Dean, David Leebron, is now President of Rice University and, like Schizer, was a member of the Columbia faculty, though not as young as Professor Schizer at the time of his ascension. Professor Schizer, who only recently got tenure, is also regarded as one of the top tax scholars of his generation in the legal academy.

It is striking that top law schools almost always pick "insiders" (i.e., current faculty members) as Deans--in recent years, this has been true at Yale, Harvard, Chicago, NYU, Michigan, Virginia, Texas, Cornell, Georgetown, and (going back a few years) Northwestern and Duke. Only Stanford and Berkeley have gone for "outsiders" in recent years.