Leiter Reports: A Philosophy Blog

The Philosophical Genealogy Project Has Arrived Already!

That was quick!  Behold the fruit of work by my colleague Josh Dever, who invites additional information, corrections, etc. at the e-mail address given at that site.

Interesting stuff!

UPDATE:  David Velleman (Philosophy, NYU) writes:

I doubt whether any philosophical genealogy project will be interesting in the way that the mathematical project is.  The mathematicians are part of an intellectual tradition that has retained its identity over centuries.  Here, for example, is the genealogy of the set theorist Ken Kunen at Wisconsin (in reverse chronological order):

Kenneth Kunen
Dana Scott
Alonzo Church
Oswald Veblen
E.H. Moore
H.A. Newton
Michel Chasles
Simeon Poisson
Joseph Lagrange
Leonhard Euler
Johann Bernoulli
Jacob Bernoulli
Gottfried Leibniz (1666)
Erhard Weigel (1650)

What are the chances that the academic genealogy of any analytic philosopher working today would reach back to 17th-century figures
who would be recognizable as philosophers, in the way that Leibniz is
recognizable as a mathematician?  Pretty slight, I'd say.  I'd be interested if someone could prove me wrong.

UT Austin President Larry Faulkner to Step Down

Details here.  He has been a good and honorable President, and served the University well.  My God, though, it's a hard job, and I can imagine after the length of his tenure, he's exhausted!  I'm sure I speak for most faculty in expressing sincere appreciation and thanks for his service on behalf of our collective enterprise.

Meanwhile, here in the Law School we're worried that our own spectacular Dean, Bill Powers, is a candidate whom many will be looking to as a successor.  The University's gain would be the Law School's loss.  But Bill Powers is without a doubt the most talented academic administrator I've ever seen:  excellent political instincts, shrewd psychological judgment, strong academic and intellectual values, and an outstanding ability to traverse the worlds of "theory" and "practice."  If anyone can take UT Austin to the next level (namely, across-the-boards competitiveness with places like Michigan and Berkeley), it will be him.  We shall see...

Grades are In, Teaching Evaluations are Out

Grades are in, and so teaching evaluations are out.  Nothing quite as interesting as last year’s remark that mentioned the blog, but many gratifying and funny student comments from both Jurisprudence and Evidence.  One of my colleagues posts his student comments on his door; I’ll use my Cyber-door instead.  (This may be especially timely given Eugene Volokh's sleazy stunt of opening a thread last week for anonymous personal attacks on me!)  Here they are, every written comment from Jurisprudence (overall instructing rating of 4.6 out of 5.0, class size:  59):

Raz could be explained better [Ed.-no doubt!]

I laughed.  I cried.  It was better than Cats.  [Ed.-I better go see that play]

Professor Leiter does an excellent job of breaking down philosophical concepts and presenting them in a structured way so that a layman like myself can understand them.  Well done!

This course fell within the penumbra of the meaning of the central words in the rule.  No, seriously, it was fabulous.  Great course.  Exciting every day.  Loved it!

Enjoyed the course, even the points where I had no clue what was going on.

It was a pleasure to be in this class.  Thank you!

Political Philosopher Gaus from Tulane Accepts Arizona Offer

He'll start in 2006-07.  More details here.  That's the third tenured, lateral appointment for Arizona this year!  Others are Shaun Nichols (philosophy of mind, ethics, experimental philosophy) from the University of Utah and Connie Rosati (ethics, philosophy of law) from the University of California at Davis.  These hires should certainly push Arizona squarely back (at least) into the overall top 15.

July Blogging Hiatus

Except for some posting on Fridays (including tomorrow), I'm checking out of the blog for the month of July, but should resume more regular posting again in early August.  This isn't for travel (alas!), but so I can make some serious progress on some writing projects:  a paper on Nietzschean moral psychology (with Joshua Knobe [Philosophy, North Carolina]) for the Nietzsche and Morality volume Neil Sinhababu and I are editing for OUP (this should be out next fall), and a paper on evolutionary biology, and its irrelevance to law (notwithstanding confused claims to the contrary by various law professors) (with Michael Weisberg [Philosophy, Penn]).  I also want to revise my SEP entry on "Naturalism in Legal Philosophy" in light of the good ideas I got at the recent Rutgers conference on philosophical naturalism.

Starting August 1, the Law School Updates will move to a separate blog that will be part of the Paul Caron Legal Blog Empire (I don't think that's the official name).  Why?  First, because Paul Caron is a nice and persistent guy, so you just can't say "no" to Paul.  Second, I'll get paid a few dollars, as opposed to laboring for free.  (I'm hoping I'll earn enough to cover costs here!)    I hope some of my law readers will continue to peruse this site now and then, but I'll understand if you don't.  One interesting aspect of this site has been the feedback I get from law professors who learn about academic philosophy, and from philosophy professors who learn about academic law.  Hopefully, each has learned enough about the other part of the academy to be motivated to occasionally check out the one site or the other.

I should emphasize that material pertaining to legal philosophy, as well as law school news that might fall under another category, will continue to appear here.  There will be some cross-posting, in short.  But the "core" law school news (e.g., faculty moves [unless the faculty involved are also philosophers], commentary on legal education, charting Northwestern's decline, Duke's recovery, Illinois's rise, etc., etc.) will be at the new site.  I'll supply the link to the new site by August 1.

My thanks, as always, to the loyal readers, and apologies for my absence for much of the next month. 

Ironic Juxtaposition

The State Department issued this travel advisory on Tuesday, the same day as Bush's pack of lies about Iraq.

"The Mathematical Genealogy Project"

Maintained by North Dakota State University, this web site charts "family" trees for mathematicians, based on their supervisors and their students.  If anyone sets one up for philosophy, let me know, and I'll publicize it.  It might be interesting (or at least amusing). 

For example, my supervisor was Peter Railton, whose supervisor was David Lewis, whose supervisor was W.V.O. Quine, whose supervisor was...I forget now (C.I. Lewis?  Whitehead?).  (I've since "produced" one PhD student, with others in the pipeline!)  John Rawls had many "offspring":  Elizabeth Anderson, Samuel Freeman, Allan Gibbard, Jean Hampton, Barbara Herman, and Christine Korsgaard, among many others.  Each of them, in turn, trained many students.  Among Quine's many offspring were Gilbert Harman, who, in turn, "produced" Stephen Stich (among many others), who, in turn, "produced" Robert Cummins, Thomas Ricketts, William Ramsey, Shaun Nichols, Ted Warfield, and many others.  My colleague A.P.D. Mourelatos was supervised by Wilfrid Sellars; Mourelatos, in turn, trained Herbert Granger, Steven Strange, Daniel Graham, and Victor Caston, among many others.

UPDATE:  Brian Weatherson (Philosophy, Cornell) writes:  "The mathematical geneology project already encompasses part of the philosophy family tree. For
instance, Quine is there, with 19 students (including Harman, Lewis,
Charles Parsons and others) and 104 descendants. It's obviously biased at this stage towards students in mathematics - Lewis for instance is only listed as having one descendant, but there is already something of a start."  And my philosophical colleague Josh Dever tells me he has compiled some genealogical material like this on philosophers, which he may be able to put into a form that can be circulated.

ANOTHER UPDATE:  Reader Patrick O'Donnell usefully suggests that I mention "Randall Collins' The Sociology of Philosophies: A Global Theory of Intellectual Change (1998) as exemplifying the importance of something like 'family trees' for philosophy, or at least providing some of the theoretical vocabulary and variables useful for assessing the significance of such phenomena."

On Rhetoric, "Persuasion," and Tone...or Knowing the Difference Between Hard and Easy Questions

UPDATE MAY 2, 2010:  If you're coming here via the post by the always comical David Bernstein, please note that the actual subject of this 2005 entry is political blogging, not "academic discourse," though, unsurprisingly, that distinction eludes Professor Bernstein.  On what gets people to change their moral and political views, do see the interesting work by psychologist Jonathan Haidt (UVA).  I am informed that you may comment on Professor Bernstein's latest here. 

----ORIGINIAL 2005 POSTING FOLLOWS-----

[Note:  I started drafting this almost a year ago, in response to reader queries, but only returned to it recently.  At last, before my summer hiatus begins, here it is.]

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

It has, on occasion, been noted that gentleness is not the hallmark of my postings on this blog, at least on matters of a political nature. The fans call it the "no bullshit" approach, pungent, acerbic. This law student calls me, aptly enough, "the man who blogs with a hammer," while Jeremy Stangroom at Butterflies & Wheels says I am "everyone's favorite Rottweiler." (I'm not sure about everyone's.) Dispassionate discursiveness is not the medium in which I generally operate here, a fact for which some of my philosopher friends occasionally take me to task.

Yet philosophers, of all people, should know from experience how hard it is to change anyone's fundamental commitments and beliefs through rational discursiveness--and that's true when we're talking philosophy, not politics! (Does this align me with Dreben's view of philosophy?  Perhaps in some measure, though it is really Nietzsche's idea.)  When it comes to politics, things get far worse: reasons and evidence appear to play almost no role in changing anyone's views.

Take the case of Arnold Kling, the economist whose transparently irrational argument became the rage of the blogosphere last summer:  that it was irrational did nothing to impede its impact.  Or look at how Tom Smith (Law, San Diego), someone who is otherwise a serious legal scholar, responds to Jeff McMahan's careful analysis and dissection of the moral case for the war in Iraq. This is a case study in "why bother?" with dispassionate argument, if your goal is to persuade. (There are other reasons to undertake dispassionate argument, to be sure: for example, the author may want to figure out what he or she thinks. And, of course, there are occasionally folks whose views can be shifted by such efforts, though I've yet to find a single instance in the blogosphere.)

I am sometimes presented with the following criticism: "Your rhetorical style won't persuade anyone who doesn't already agree with you." That is no doubt true, but, as we've just remarked, it is quite rare to persuade anyone by a careful, reasoned argument--indeed, so rare, that I don't see it as worth the effort to try to do so on a blog. Even quite intelligent individuals, people with PhDs from MIT no less, turn out to be completely unable to follow a rational argument!

But the criticism also presupposes that I want to persuade. I shall let the readers in on a secret (though I suspect it is obvious to my regular readers): I am not interested in persuading anyone.  Bear in mind that we know relatively little about how persuasion in general works.  It may well be that the specter of an educated person giving the back of his hand to the mass-media-sanctioned wisdom of the moment is, in fact, much more persuasive than dry, disapassionate argument. Who knows for sure? In any case, my goal in posting on various political topics is simply to alert like-minded readers to ideas and evidence and arguments which help strengthen their convictions regarding the truths they've already understood or glimpsed, as well as to give some expression to our collective outrage and dismay.  I really wish that the unlike-minded folks would simply "go away" and read something else.  (Nietzsche puts it better, of course.)

Originalism Redux

In my discussion of the constitutional case for impeaching Bush, I remarked on the current reigning pathology of American constitutional law, namely, the infatuation with originalism on both the right and the left; I wrote:

Originalism (whether about intentions or meanings) is now the dominant, almost entirely unquestioned touchstone of constitutional argument and interpretation in the United States.  This is odd since there is no plausible, theoretical justification for it that speaks to the kinds of issues I noted in passing and that are taken up by Professor Marmor in the piece linked to, above. 

Although there are analogous questions that could be raised about constitutionalism itself, the issue of originalism as a theory of interpretation is severable.  We might agree that later majorities should be bound by an earlier foundational document (the crux of constitutionalism), but that simply does not settle the question of how the meaning of that document should be fixed.  (Last year, when I pressed Akhil Amar about this during a visit to Texas, he argued that to be bound by the text one has to be bound by the original understanding.  This is, alas, also a non-sequitur, and not just conceptually:  in practice, for example, Canadian courts are barred from originalist interpretations of the Charter, yet still manage to interpret and apply it.) 

Those who would supplement constitutionalism with originalism need to explain why the original meaning or intentions are authoritative.  Intentions might be authoritative if, for example, we had consented to be bound by them; but that is inapposite in this case. Intentions might be authoritative if they reflected a kind of practical/moral expertise or insight, such that (to put it in Razian terms) we are more likely to do what we really ought to do by treating these original intentions as authoritative with respect to our decisions and choices today; but that also seems inapposite in this case, absent some extended moral and political defense of the special expertise of the framers of the Constitution. 

In general, originalists fail to come to terms with the question of why original meanings or intentions should be authoritative, and opt instead for instrumentalist arguments of the form, "We need originalism to constrain judges."  But there are multiple ways to constrain judges (make their decisions appealable; permit legislative overrides [as, e.g., the Canadian Charter does in certain contexts]; adopt a simple rule like, 'Appellant always wins' [this last being far more efficient than originalism!]; adopt a more complex rule like "the plain, current meaning controls," and where it is unclear, do a Gallup poll to see what the "people" want), and so what is needed is some clear explanation of why originalism should be the preferred way of achieving constraint (why is constraint a value?  how much constraint can originalism deliver compared to alternatives?  etc.). 

Perhaps originalism can meet these challenges.  It is a decidedly odd feature of our contemporary constitutional culture in the U.S. that, despite the absence of answers--indeed, despite the recognition in many quarters that these are real challenges!--originalism should be so widely accepted across the political spectrum.

Mike Rappaport (Law, San Diego) responds with an argument that he believes is not caught by these criticisms; here is the relevant portion:

[John] McGinnis and I root the normative basis for following the original meaning of the Constitution in the fact that constitutional provisions can only be enacted by passage under strict supermajority rules. (See Articles V and VII of the Constitution.)

Laws that must pass under a strict supermajority rule are apt to be better than laws passed by majority rule. While the specific effects of supermajority rules depend on the type of laws being passed, the circumstances, and the model of the legislative process that one employs, one can make certain generalizations. First, that supermajority rules require the approval of a greater percentage of the legislature operates to protect minority interests from being exploited. Second, the greater support required under supermajority rules also means that laws must in general produce significant public benefits in order to pass. (For other arguments, see the paper.) While supermajority rules don’t make sense in all circumstances, they are desirable when applied to the passage of constitutional norms that will be entrenched against change by ordinary legislative majorities.

The supermajoritarian process for enacting constitutional norms provides a reason why constitutional provisions should be preferred to ordinary statutes passed under majority voting rules: the constitutional norms are likely to be of higher quality than ordinary legislation. The supermajoritarian process also suggests that the Constitution should be given its original meaning: it is only the original meaning of the provisions that would have been reviewed by the participants in the strict supermajoritan process.

[I]t is not who the Framers were that justifies following their Constitution, it is the supermajoritarian process by which they enacted the Constitution. This process also justifies not following their handiwork when the Constitution has been amended.

This supermajoritarian defense of the Constitution is reinforced by the fact that original meaning interpretation guides and constrains judges. Under the loose interpretive approach favored by Marmor and most liberal academics, there is little to stop the Supreme Court Justices from imposing their own views on the nation. Since this amounts to constitutional amendment by a majority of 9 unelected judges, as opposed to constitutional amendment by a supermajority of elected officials, this process of judicial amendment is far worse than following the original meaning.

In the end, then, originalism is justified because it enforces provisions enacted in a process that suggests they will be desirable and assigns to judges the task of enforcing, not making, the law.

I find this argument a bit confusing, and Professor Rappaport will no doubt correct me if I am reconstructing the argument incorrectly.  But here is how I understand it:

1.  The text of the Constitution clearly provides that it only may be amended by procedures requiring super-majorities.

2.  Legal norms enacted by super-majorities are generally superior (along various relevant evaluative dimensions) to legal norms enacted by simple majorities (let alone legal norms enacted by simple majorities of very small groups, such as nine judges on a court).

3.  Originalism is the preferred mode of interpretation, then, because (a) the original meaning is the one vetted in the super-majoritarian procedure, and (b) the original meaning constrains judges from effecting non-super-majoritarian amendments through "loose" interpretation of the text.

The crucial premise here is, I take it, (2):  it justifies 3(a)'s claim that the original meaning/intention should be authoritative; and it explains why the kind of constraint in 3(b) is to be preferred over other possible kinds of constraint. 

Unfortunately, I don't see how 2 can possibly bear any of this argumentative weight.  At best, 2 establishes that norms so enacted are likely (how likely?  it's unclear) to be normatively superior to norms not so enacted.  It can not possibly establish that the norms so enacted in fact have normative authority. 

Remember:  the fundamental question is why a particular meaning has a justfieid claim of authority over us, i.e., why we should comply with that way of construing the meaning rather than some other.  It is very hard to answer this question without some explicit account of what confers normative authority.  Two possibilities (but there are others) are:  a meaning is authoritative because we have consented to be governed by those who authored it; or a meaning is authoritative because we are more likely to do what we really ought to do if we are governed by that meaning.  Let's call the latter, following Raz, the service-based conception of normative authority.

What does the average above-average philosopher look like?

Dennis Des Chene (Wash U/St. Louis) has the answer.

Which "Liberal" Media? Bashing Justice Kennedy in the NY Times

Philosopher Samuel Rickless (UC San Diego) writes with kind words and apt observations:

I do so enjoy reading your blog.  I look forward to it every morning,
and consider it a breath of fresh air, especially after spending most
of my breakfast cursing at the NYTimes.

Case in point: today's front page story about how much the right wing
hates Anthony Kennedy.  Now I know that the story is about right-wing
reaction to Kennedy's views, but the article is notably unbalanced in
its treatment of Kennedy's jurisprudence.  His admirers are described
as praising his judicial temperament: "good judgment, fairmindedness
and a willingness to disentangle his own moral values from the law".
His detractors (including Bork, who was interviewed for the piece) are
described as questioning his "judicial views" on the grounds that he
does not "stick to the Constitution."  The two scholars who are quoted
as praising him are Robert Gordon and Michael Dorf (a former Kennedy
clerk).  Gordon defends Kennedy's "ability to empathize with those
outside his own moral code".  Dorf defends Kennedy's "openness",
reading the fact that "he changes his mind a lot" as a sign of
"impartiality".  Jeff Rosen, who describes himself as a "liberal
advocate of judicial restraint," criticizes Kennedy for having
"embraced a rhetoric of judicial supremacy."  Nowhere in this piece is
ANYONE quoted as defending Kennedy's JUDICIAL views.  The overwhelming
impression one gets from the piece is that Kennedy is a fair-minded guy
who has abandoned judicial restraint for judicial activism, mostly
because he doesn't have a consistent jurisprudence.

Now I am not exactly a Kennedy enthusiast.  But surely the NYTimes
could find SOMEONE to speak in favor of Kennedy's judicial opinions.
Both Romer and Lawrence, for example, speak to Kennedy's abhorrence of
second-class citizenship.  And his much-ridiculed statement in Casey
can be cited as a defense of the right to define one's own identity, as
a fundamental component of human dignity.  (Casey also contains a
sophisticated interpretation of stare decisis.)  And, of course, the
finding of unenumerated rights protected by the Constitution has an
illustrious pedigree, tracing all the way back to Madison's speech to
Congress in defense of the Bill of Rights.  So what if Kennedy doesn't
always tell us whether he is applying strict scrutiny or the rational
basis test!  There are moral principles in play, and Kennedy sees them.
This is the important thing, and it is a sign of general legal
ignorance and illiteracy that the NYTimes reporter who took on the job
of covering the Kennedy story not only passed over the principles, but
also passed over everyone in the legal academy who might have defended
Kennedy's appeal to them.

Indeed.  I'm sure my colleague Larry Sager, among others, would have talked to them!  Lawrence v. Texas is one of the most significant civil rights decisions of our time, and it is to Justice Kennedy's credit that he authored it.

Arizona State Hires Leading International Trade Lawyer Abbott from Northwestern

A big catch for Arizona State University's College of Law:  they have recruited Kenneth Abbott, a leading scholar of international trade law, from Northwestern's (troubled) law school, where he had taught for more than 25 years.

This is the latest in a long series of embarrassing senior departures from Northwestern's law school.

Meanwhile, Arizona State University's College of Law clearly has to be added to the list of traditionally more "regional" law schools that now have top faculties; others include, of course, Chicago-Kent College of Law, George Mason University, University of San Diego, and Florida State University.  In addition to Professor Abbott, other major lateral recruitments at ASU in recent years include Robert Clinton (constitutional law, Federal Indian Law) and Michael Saks (law & psychology) from the University of Iowa, and Robert Gorman, a preeminent labor law scholar, who retired early from the University of Pennsylvania.

Question: Does Anyone Know of a Resource Listing the Staff Size of U.K. Universities?

Please e-mail me if you do.  What I'm after is the approximate total faculty size for the various major research universities in the U.K.  Thanks.

The Criminal War Monger Bush...

...told another series of bald-faced lies, spiced up with some fibs and half-truths, on national T.V. this evening.  The text of the speech is here, but skip the text and go to the comments which cut to the chase.  (Not all comments are of equal merit, needless to say, but some are pretty good.)

By the way, there is no such thing as a "war on terror."  (Didn't someone say that?)  Please, someone tell Karl Rove they can't run on this fake "war on terror" forever.

UPDATE:  Apt comments, as always, from Juan Cole (History, Michigan) here.

A "Dean's Fellow" at Indiana-Indianapolis too "Uncollegial" for Reappointment?

This story out of the law school at Indiana University at Indianapolis raises serious questions about what's going on at that school.  William Bradford, a tenure-track faculty member, who has been extremely prolific, and was recognized by his own institution for scholarly excellence this past academic year, was up for re-appointment after three years on the tenure track.  According to Professor Bradford, five of fifteen faculty voted against re-appointment (though, as I understand it, re-appointment went through).  The only reason officially cited for the negative votes was lack of "collegiality." 

Any school that is serious about academic freedom and the First Amendment rights of its faculty has to do better in a case like this, especially given that re-appointment for a highly prolific junior faculty member (and especially in law schools) is usually pro forma.  "Lack of collegiality" is too often the smokescreen for academically irrelevant factors, like political differences or personal vendettas, in the tenure and appointments process.  (That Professor Bradford himself may, as the linked article suggests, have deeply mistaken views about the academic freedom rights of other professors, is, of course, irrelevant to the point here.)

There are certainly no public allegations, at present, that would justify the vote.  Of course, the law school at Indiana-Indianapolis has also not yet taken any action that terminates Professor Bradford's position and livelihood.  (Contrast this case with a recent and similar case at Yale.)  The reported vote is, however, highly suspect, and places an onus on the institution, in my view, to either improve the academic integrity of its process when the actual tenure decision comes, or to do far better than the "uncollegiality" smear directed at a junior faculty member that the school itself has recognized for scholarly excellence.

UPDATE (Dec. 7 2005):  The denouement to this affair, which raises doubts about the merits of the original allegations by Professor Bradford.

Kant Scholar Allison Wins International Prize

The eminent Kant scholar Henry Allison at the University of California at Davis has been awarded the Internationalen Kant-Preis for 2005.  Awarded every five years for work on Kant, the prize comes with a stipend of 20,000 Euros.  Previous winners include P.F. Strawson and Dieter Henrich.

(If anyone has a link to a site with further information about the prize, send it along, and I'll post it.)

Sartre at 100

Distinguished Sartre scholar Ronald Aronson (Wayne State) has a nice essay marking the 100th anniversary of Sartre's birth; an excerpt:

As he deepened his extravagant claims, Sartre embarked on a great adventure of the human spirit, aiming at solving one of our greatest perplexities: Do we make ourselves, or are we determined by conditions beyond our control, including those within our own psyche?

One response, often associated with the political right, claims that we are completely responsible for virtually everything that befalls us. Another, the most conventional of left-wing replies, is that social conditions shape and determine who we become. After beginning by contributing the strongest argument of the 20th century to the side of the dilemma stressing total human freedom, Sartre went on to explore the social, economic and psychic conditions under which we exercise our freedom. Yes, he would say, we do make ourselves - but the situation within which we do, and even the terms in which we do so, are imposed on us and generally remain beyond our control.

Sartre made clear that the whole truth lies with both sides taken together. And then, in works like his biography of Gustave Flaubert, he went on to demonstrate precisely how an individual creates himself from what his social class and family situation have made him to be. Like no one else, he gave their due both to freedom and to determinism. Like no one else, he sought to understand exactly what it means to be responsible.

This suggests another reason for Sartre's continued salience - his irritating and annoying claims themselves. Sartre teaches that we are constantly tempted to escape our responsibility for creating ourselves from what we have been made - there is something comforting, after all, in feeling that things are beyond our control. But, as he also teaches, to accept this is to enter into complicity with the powers that would dominate us. Sartre demands that we see ourselves as active agents, even when we might prefer the irresponsibility of seeing ourselves as victims. 

Today Sartre is still as troubling and annoying as ever. He demands that we see a world seemingly out of control as made up of human choices and the structures these create. When he demands that we take responsibility for our lives, for the shape of our world, for the situation of the least favored - for others as well as ourselves - he is expressing decisively important conditions for learning to live as responsible citizens in this globalized world. This is no outmoded radicalism, but the message of one of the most challenging and contemporary philosophies.

Scalia to Atheists: "Drop dead!"

Jack Balkin (Law, Yale) comments.

Thus Spoke Nietzsche

Our highest insights must--and should--sound like stupidities and sometimes like crimes when they are heard without permission by those who are not predisposed and predestined for them....

What serves the higher type of men as nourishment or delectation must almost be poison for a very different and inferior type. The virtues of the common man might perhaps signify vices and weaknesses in a philosopher. It could be possible that a man of a high type, when degenerating and perishing, might only at that point acquire qualities that would require those in the lower sphere into which he had sunk to begin to venerate him like a saint. There are books that have opposite values for soul and health, depending on whether the lower soul, the lower vitality, or the higher and more vigorous ones turn to them: in the former case, these books are dangerous and lead to crumbling and disintegration; in the latter, heralds' cries that call the bravest to their courage. Books for all the world are always foul-smelling books: the smell of petty people clings to them. Where the people eat and drink, even where they venerate, it usually stinks.

--Beyond Good and Evil, sec. 30 (Kaufmann translation, with some tinkering).

Philosopher Miller from Macquarie to a Chair at Birmingham

Alex Miller (philosophy of language, metaphysics, epistemology, metaethics) at Macquarie University has accepted a Professorial appointment at the University of Birmingham in Britain (to start January 2006), where he taught roughly a decade ago.  With the appointment of Professor Miller and Helen Beebee from Manchester, and junior appointments in the pipeline, Birmingham is well on its way to reestablishing its position among the major U.K. departments.

"God's Chosen Envoy for America"

Norman Mailer explains (very funny!).

95 Theses on the Religious Right

Philosopher Peter Ludlow (Michigan) writes:

Here's something you may not have known or suspected. When I grew up my family went to a conservative Christian church and I subsequently went to a Swedish Baptist college in Minnesota.  I recently went back to my home town and was sickened by what became of the family church over the last 20 years.  The received view is that the conservative christians have taken over the Republican Party.  I think the reverse happened.  The right wing of the Republican Party has taken over the church.  Nothing could be more clear to me.  In a fit of revulsion, and with a nod to Marty Luther, I wrote up the following 95 theses on the relighous right:  Download ludlows_95_theses_on_the_religious_right.doc   In lieu of nailing it to the door  of the Wittenburg Church I'm sending it to you instead.  Not exactly the same thing, I realize. I'm not saying I'm a believer and I'm not saying I'm not, but I am saying that what has happened to the fundamentalist church is revolting.

Professor Ludlow invites readers to redistribute it as widely as they'd like.  (Here is an RTF version of the same document:  Download ludlows_95_theses_on_the_religious_right.rtf)

Here are a few of the theses:

1. Our Lord and Master Jesus Christ, when He said "love thy neighbor", willed that believers should show *compassion* toward others.

2. This word cannot be understood to mean mere lip service ("I love them, but I hate their sin"), but genuine concern for the welfare of others.

3. Yet the Religious Right has forsaken compassion for a doctrine of institutionalized hatred and violence.

4. Specifically, the Religious Right has taken the Word of God and wrapped it in the flag of Right Wing Politics, replacing God's message of redemption for the entire world with a narrow message endorsing right wing American politics.

5. Item: the Religious Right has neglected the teachings of Jesus in the gospel of Luke, where He instructs that we are to show compassion for the poor.

6. In place of God's words, the Religious Right has substituted a right wing political doctrine in which the poor have only themselves and their alleged laziness and moral weakness to blame.

7. For example, the Religious Right has rejected the needs of poor children of unwed mothers.

8. The Religious Right has rejected the cries for help from the children of impoverished families in the inner cities.

9. The Religious Right, has advocated fewer resources for the elderly poor and for the millions of children now living in poverty.

10. In place of giving to the poor, the Religious Right has advocated political doctrines specifically designed so that individuals may acquire vast sums of money.

11. The Religious Right has thus seized on a contemporary economic ideology as an excuse to ignore the teachings of Jesus.

...

18. Item: the Religious Right has neglected the teachings of Jesus that "he who is without sin should cast the first stone."

19. In place of God's words, the Religious Right has substituted a doctrine in which perceived sinners are to be persecuted.

20. Gays, for example, are persecuted because of their alleged sins. In some cases, leaders of the Religious Right have encouraged acts of physical violence against gays.

21. While the Religious Right has been eager to persecute others for their alleged sins, they have been blind to their own.

22. While the Bible counsels that a rich man can no more enter the of Heaven than a camel can pass through the eye of a needle, many in the Religious Right have celebrated the acquisition of wealth.

23. While the Bible enjoins us against pride, the Religious Right appears to be flush with pride in it's holier than thou stance.

24. While the Bible asks that we be slow to anger, the Religious Right is quick to anger -- indeed it appears to revel in anger and in fanning the flames of anger in others.

25. While the Bible counsels that we are not to be "revilers," key members of the religious right have consistently and aggressively reviled their political enemies as well as those who are perceived to be sinners.

26. It seems then, that the Religious Right picks its sins selectively, ignoring the clear Biblical message against avarice, pride, and anger, and emphasizing selected “sins” that have little to no Biblical basis.

...

31. Item: Religious Right has failed to see that God's call to help our neighbors also extends to our international neighbors.

32. International aggression is not a Christian doctrine.

33. Where the Bible calls us to be peacemakers, the Religious Right claims that we have no business trying to bring peace to troubled areas but rather counsels that we should use military might to secure our business interests.

34. Where the Bible, through the story of the good Samaritan, instructs that we are to help our international neighbors -- indeed, even our enemies -- the Religious Right counsels "America First".

35. But "America First" cannot be a true Christian Doctrine.

36. The Bible gives no special status to political entities like the United States of America, and any suggestion to the contrary is to simply lie about the content of the Bible.

37. God does not bless nation states, and if He did, He surely would not bless them for practicing international internal intolerance, and propping up corrupt kingdoms and military juntas that traffic in institutionalized poverty and violence.

...

Nice mail

A reader from New York sends the following gratifying missive:

A while back one of your postings was linked in Arts & Letters Daily.  Little did I know then that I would find a bright, quick-witted and courageous blog, where I would spend Saturday mornings enjoying intellectual and political friendship.  I turn especially to your postings on authoritarianism and fascism, discussions on jurisprudence and links to philosophy sites (such as the philosopher's carnival), but skip over announcements on recent appointments in law and philosophy.  Though my Ph.D. is in philosophy, I work as a librarian and teach philosophy only part-time, thus I am not directly concerned with the makeup of particular departments....

Great blog.  Keep the heat on.  There are many of us, in or out of academia, that seek unvarnished discussion on what is shaping out to be a wholesale overturning of U.S. society and culture as we know it.

I am struck by the fact that a good number of the correspondents I hear from "out of the blue," as it were, with generous words like this turn out to be librarians.  It's particularly nice that this blog strikes a chord with some of those who devote their professional lives to the care and nurturing of books and readers.  Thanks for spending some of your time reading this blog:  I welcome your "intellectual and political friendship."

Cowardice and Being Untenured: The Cases of Juan Non-Volokh and Brian Leiter

One of the likeable things about our pseudonymous, serial purveyor of "literary rascality" Juan Non-Volokh is that he admits he is a coward.  Mr. Non-Volokh has decided that because he is concerned about getting tenure, he must remain anonymous while he smears and misreads those who own their words in the light of day.  But, to his credit, he admits this is cowardice, which, of course, it is.

Less likeable, but predictable, is the suggestion at various conservative sites participating in the pity fest for Mr. Non-Volokh that it's easy for someone like me, who has tenure, to demand that those without tenure own their words in public.  The implication is that I'd be a coward too if I were in poor Mr. Non-Volokh's situation.

Here's a piece of news (not to anyone who knows me, of course) that should be a matter of public record:  I used to be a tenure-track academic and a graduate student, and at neither time was I a coward, certainly not of Mr. Non-Volokh's proportions. 

My first two sole-authored publications, before I had even gone on the teaching market, were "Intellectual Voyeurism in Legal Scholarship," Yale Journal of Law & the Humanities 4 (1992):  79-104, and "Nietzsche and Aestheticism," Journal of the History of Philosophy 30 (1992):  275-290.  The former article was a scathing attack on the misuse of philosophy by law professors, naming names and citing examples, and targetting some very prominent legal academics.  The second was a less scathing, but extremely critical assessment of what was at that time the most influential reading of Nietzsche, Alexander Nehamas's (Nehamas was then at Princeton). 

I did not publish these pieces pseudonymously.  And I didn't have tenure.  And I didn't even have a job.

I also didn't publish The Philosophical Gourmet Report anonymously during my years in graduate school and on the tenure track, even though, as subsequent events showed, that had even more potential to inflame passions.

In 1988, well before I went into teaching, I had a fairly intense exchange in the pages of Tikkun with Robert Gordon (then of Stanford Law School, now at Yale Law School) regarding his defense of Critical Legal Studies.  You may guess which side I was on.  I used my real name, needless to say.

Throughout my time in law school and graduate school, I wrote opinion pieces for the school newspapers defending a political point of view essentially the same as the one expressed on this site.  I published all those under my own name too.  My views were so well-known (or notorious, depending on whom you asked), as it were, that in the joke Michigan Raw Review the year I graduated, it was suggested that Ann Coulter (a year behind me in law school, and not much different than she is now) and I would marry and have children.  (This wasn't thought to be a match made in heaven!)

War Criminals Protect the Flag

This certainly cuts to the chase and is appropriately rude as well:

The flag amendment which just passed the House by a huge margin, and which may pass in the Senate this time around and even become a part of the Constitution, was predictable. After all, the last refuge of a scoundrel is patriotism, and the scoundrels infesting the capital, who put this country into an unwinnable and pointless war based upon lies, along with the gutless sycophants in Congress who backed them, are now being increasingly called to account by an American public finally grown weary of the war and the lies.

What to do? Dredge up that moldering corpse—the flag protection amendment.

The joke is that the flag is desecrated daily for commercial purposes, waving proudly in front of the corporate headquarters of war profiteers like Haliburton, Lockheed Martin, Boeing, Bechtel, GE, Westinghouse and Exxon Mobil, and the homes of tax cheats like disgraced Tyco CEO Dennis Kozlowski. It decorates all manner of commercial products from the backsides of women’s shorts to a line of patriotic condoms.

None of this abuse of the national symbol bothers the right-wing charlatans in Washington. Only burning the thing....

What a pathetic joke it will be for future schoolchildren, reading the high-minded...words of the Constitution...when they come to this cheap amendment telling them that the beautiful First Amendment guaranteeing free speech which they read earlier is not really true: If they want to protest government actions by burning a piece of red, white and blue cloth, they can be locked up.

And all to cover up the mendacity and cowardice of a gang of war criminals in 2005.

And that's America in the year 2005.  And if you point it out, well, then you're a rude jerk.  Long live rude jerks!

UPDATE:  Michael Froomkin (Law, Miami) (who is not a war criminal) defends the flag!

Friday Poem: "Best of Times"

Best of Times

These being the best of times I speak to you as spoilsport 
 
Though the day is bright I bring you shadows and harbingers
   
In prosperity’s face I flaunt tatters and castaways

In our finest hour the sun grinning I recommend sorrow
   
I recommend dreams more tormenting than insomnia
   
I recommend guilt anxiety premonitions dread

These I put before you claiming no originality

For truthfully all that I offer you already have

5/9-5/12/00

Copyright 2000 by Maurice Leiter

Posted with permission.

New Philosophers' Carnival is...

...here.

(Note: there is nothing below the fold, but for some reason, I can't convince Typepad of that!)

A Reverse Philosophy Brain Drain?

A philosopher from Britain writes:

Just wondering whether we might be in a period of 'reverse brain drain'....With Travis coming to Kings, the appointment at Essex you reported and Alan Carter, Luc Bovens and Eli Mason all leaving Colorado for the UK there could be a small trend here. What explains it? Horrible politics in US; the freeing up of academic salaries in the UK because of the RAE; and the exchange rate means that salaries are now competitive at the top end and at the same time the streets are not full of right-wing lunatics here.

Let's review the facts for the past two academic years (very roughly), which have (in my experience) been unusual.  Leaving the U.S. for Britain have been:  Charles Travis from Northwestern to King's College, London; Luc Bovens from Colorado to LSE; Alan Carter from Colorado to Glasgow; Wayne Martin from UC San Diego to Essex; Elinor Mason from Colorado to Edinburgh; Knud Haakonssen from BU to Sussex; Larry Moss from Notre Dame to Exeter; Andy Clark from Indiana to Edinburgh; and Christopher Shields from Colorado to Oxford.  In addition, Mike Martin (UCL), Michael Otsuka (UCL), Michael Potter (Cambridge), and Hannes Leitgeb (Bristol) have all turned down U.S. offers recently.

Travis made it explicit that the political situation in the U.S. was a factor.

Leaving the U.S. for Canada have been:  Bob Batterman from Ohio State to Western Ontario; John Beatty from Minnesota to British Columbia; Sylvia Berryman from Ohio State to British Columbia; Adam Morton from Oklahoma to Alberta; Benjamin Hellie from Cornell to Toronto; Diana Raffman from Ohio State to Toronto; Byeong Yi from Minnesota to Toronto; Jessica Wilson from Michigan to Toronto; Jennifer Whiting from Cornell to Toronto (and she recently turned down Stanford as well).

On the other hand, several faculty have recently moved from Canada to the U.S. (Catherine Wilson from UBC to CUNY; William Demopoulos from Western Ontario to UC Irvine), and several have made the move from Britain (Richard Holton & Rae Langton from Edinburgh to MIT; John Campbell from Oxford to Berkeley; Mark Sainsbury from King's College to Texas).  Bear in mind that the U.K. still has mandatory retirement, an incentive, of course, for some philosophers to move to the U.S.

What do philosophers think?  Is this a trend?  What explains it?  Comments are open; no anonymous postings, of course.

Another Student-Edited Law Review Embarrasses Itself by Publishing an Error-Ridden Article Shilling for Intelligent Design Creationism

The sordid details are here; unlike the Harvard Law Review, however, this journal, Washington University Journal of Law & Policy, is not the flagship, student-edited journal at the school.  Still, as biochemist Frank Schmidt (Missouri), who brought this to my attention, aptly remarked:

I wonder about such student-edited journals. In my field, journal
editorship is almost always a signal honor, reserved for accomplished
scientists who are rewarded for their accomplishment by getting more
work to do at minimal or no pay. And all of us review articles gratis,
as a service to the community. As a result, an article based on an
incorrect premise would not be published in a "good journal." Not that
we don't have problems with fraud, etc., but the system works remarkably
well.

On the other hand, an article based on the fatuous claim "Intelligent
Design is a scientific research program teaching that intelligent agency
explains more about complex biological systems than does evolutionary
theory," is published in a journal bearing the name of a distinguished
university, and becomes part of the field's discourse.

Is this a systemic problem in law journals? And does the academy as a
whole need to address it?

There is clearly a systematic problem, as we've discussed previously.  But those in other fields need to be aware that anything can be published somewhere in a student-edited journal, because there are so damn many of them and most of them are desperate for material (and most of them are edited by individuals ill-equipped to evaluate most of the articles they receive, especially those that require knowledge of other scholarly disciplines).  Why are there so many?  Primarily because their main purpose is for training, educating and (often) credentialing students ("Were you on a journal?"), and not because there is a need in the wider community for yet another forum for purportedly scholarly articles on legal topics.

David Horowitz's Latest (Mis)Pronouncements

David Velleman (Philosophy, Michigan) has apt comments on David Horowitz's latest distortions about his "campaign" to stamp out academic freedom.

Philosopher Nichols at Utah Accepts Arizona Offer

Shaun Nichols (ethics, philosophy of mind and cognitive science) at the University of Utah has accepted the offer from the University of Arizona, to start fall 2006.  This is turning in to a good year for Arizona, which has also appointed Connie Rosati (moral and legal philosophy) from UC Davis and has an offer out to Gerald Gaus (political philosophy) at Tulane.

Legal Historian Weiner Wins Silver Gavel Award

Congratulations to my friend Mark Weiner (Law, Rutgers-Newark) who has won this year's Silver Gavel Award for his book Black Trials:  Citizenship from the Beginning of Slavery to the End of Caste (Knopf, 2004).

Prior winners of this prestigious award include Alexander Bickel for The Morality of Consent; Raoul Berger for Government by Judiciary; Richard Posner for The Federal Courts:  Crisis and Reform; Ronald Dworkin for Law's Empire; L.A. (Scot) Powe, Jr. for American Broadcasting and the First Amendment; Lawrence Friedman for Crime and Punishment in Ameican History; and G. Edward White for Justice Oliver Wendell Holmes:  Law and the Inner Self. 

Distinguished company indeed!

Thus Spoke Schopenhauer

[A]bove all, anonymity, that shield of all literary rascality, would have to disappear. It was introduced under the pretext of protecting the honest critic, who warned the public, against the resentment of the author and his friends. But where there is one case of this sort, there will be a hundred where it merely serves to take all responsibility from the man who cannot stand by what he has said […]. Often enough it is only a cloak for covering the obscurity, incompetence and insignificance of the critic. It is incredible what impudence these fellows will show, and what literary trickery they will venture to commit, as soon as they know they are safe under the shadow of anonymity. Let me recommend a general Anti-criticism, a universal medicine or panacea, to put a stop to all anonymous reviewing, whether it praises the bad or blames the good: Rascal! your name! For a man to wrap himself up and draw his hat over his face, and then fall upon people who are walking about without any disguise—this is not the part of a gentleman, it is the part of a scoundrel and a knave.

--Parerga und Paralipomena, Ch. 23

(Thanks to Pablo Stafforini for the timely pointer.)

"A War Planned by Liars and Morons"

Details here; an excerpt:

For what purpose has President Bush sent 1,741 US soldiers to be killed in action in Iraq (as of June 19, 2005)?

For what purpose have 15,000 - 38,000 US troops been wounded, many so seriously that they are maimed for life?

Why has the US government thrown away $300 billion in an illegal and pointless war that cannot be won?

These questions are beginning to penetrate the consciousness of Americans, a majority of whom no longer support Bush's war....

The top secret British government memos leaked to a reporter at the London Sunday Times make it completely clear that prior to the invasion President Bush knew that Saddam Hussein had no weapons of mass destruction.

The memos make it completely clear that Saddam Hussein had no responsibility whatsoever for the September 11, 2001, attack on the World Trade Center and the Pentagon.

The memos make completely clear that the British government regarded the invasion of Iraq as a war crime. The memos show the British government scrambling to find some way of creating "cover" in order to obfuscate the illegality of the invasion that Prime Minister Tony Blair had promised Bush to support.

One of the cover plans was itself illegal. According to yet another leaked top secret British memo in the Sunday Times on June 19 Bush decided to sharply increase the US bombings of Iraq in the hopes it would goad Saddam Hussein into a response that could be used as a pretext for invading Iraq.

According to the Sunday Times, the British Foreign Office advised the British Cabinet that legally "the allies had no power to use military force to put pressure of any kind on the regime."

The Bush administration falsely claimed that the bombing was legal in order to enforce compliance with UN resolutions 688 and 687. However, the British Foreign Office advised Bush's poodle, Tony Blair, that the American view "is not consistent with resolution 687, which does not deal with the repression of the Iraqi civilian population, or with resolution 688, which was not adopted under Chapter VII of the UN Charter, and does not contain any provision for enforcement."

In his June 18 weekly radio address last Saturday, Bush again lied to the American people when he told them that the US was forced into invading Iraq because of the September 11 attack on the WTC. Bush, the greatest disgrace that America has ever had to suffer, actually repeated at this late date the monstrous lie for which he is infamous throughout the world:

"We went to war because we were attacked, and we are at war today because there are still people out there who want to harm our country and hurt our citizens."

Whoever the "people out there who want to harm our country and hurt our citizens" might be, they were not Iraqis, at least not until Bush invaded their country, killed tens of thousands and maimed tens of thousands more, detained tens of thousands others, destroyed entire cities, destroyed the country's infrastructure, and created mass unemployment, poverty, pollution and disease.

UPDATE:  Philosopher Christopher Pynes (Western Illinois) writes:

No one has pointed out that 300 Billion divided by 50 is six billion dollars.  So each state in the union could have been given six billion dollars.  I don't know about Texas and California and a few of the other states, but Tennessee [where Professor Pynes is currently teaching] and many of the smaller states could have been scraped off and rebuilt from the ground up for six billion dollars.

That kind of money could definitely allow us to leave no child behind in terms of health care, education, and housing.  Just an amazing bunch of work Jorge and his bunch have done.

Pessimists and Optimists

At a conference I attended recently in Brussels, a French economist was talking, over dinner, about the remarkable economic strides the Chinese were taking.  Someone quipped, "Soon, we'll all need to learn Mandarin."  The economist replied:

The optimists say, "Soon we'll all be studying Mandarin." 

The pessimists are studying Mandarin already.

London in the fall

Various folks have inquired about my plans for the fall, when I'll in London for the fall term there.  Ken Gemes at Birkbeck and I will be conducting an intercollegiate research seminar on Nietzsche, which looks to meet Tuesdays from 6-8 pm (this may change, will post again on this closer to the time); each week will be devoted to a precirculated paper by various UK-based philosophers interested in Nietzsche (Christopher Janaway, Peter Kail, Simon May, Daniel Came are among those on the calendar so far), as well as Ken and myself.  I'll also be giving several lectures in the LLM Jurisprudence course at University College London in November on Hart, Raz, and legal positivism, though that won't be open to visitors I suspect.   The speaking schedule so far includes the Cambridge Moral Sciences Club on October 25 and the University of Manchester (Politics and Philosophy) on November 23.  I'll also be in Ankara at Bilkent University for a couple of days, in either October or early November (I'm still scheduling that one), and a few other talks are in the works.  I'll post the final schedule later in the summer, or early fall, and hope to have a chance to meet many of the folks with whom I've corresponded over the years at some of these events.

The Rude Atheist at Brooklyn College

There is a good discussion of the case here; an excerpt:

So it's 2005 and this is the academic question that has driven the Daily News and the right-wing New York Sun into apoplectic fits, and caused heartburn all over CUNY: Should Tim Shortell, an atheist, be allowed to assume the chair of the sociology department of Brooklyn College? You know, an atheist--someone who doesn't believe in God. An anticleric. A disrespecter of religion. A mocker of Christianity. Someone like, oh, Diderot ("Man will never be free until the last king is strangled with the entrails of the last priest"). Or Voltaire ("The truths of religion are never so well understood as by those who have lost the power of reasoning"). Or Bertrand Russell ("The Christian religion, as organized in its churches, has been and still is the principal enemy of moral progress in the world")....

Unfortunately, Shortell is no Bertrand Russell....For one thing, Russell was an energetic antireligious propagandist, while Shortell's low opinion of God and his fans is confined to a brief essay, "Religion and Morality: A Contradiction Explained," posted at www.anti-naturals.org, an obscure website with a vaguely Situationist flavor. For another, Russell was a terrific writer, while Shortell's essay is self-satisfied adolescent twaddle....

[S]o what if Shortell's essay is offensive? Brooklyn College is a public, secular institution, not a Bible college. The Sun claimed Shortell's disdain for religion would cloud his judgment of job candidates, but there was never any evidence that this would be the case. No student ever complained about his teaching; his colleagues trusted him enough to elect him to the post; the student work posted on his website is apolitical and bland. Predictions of bias, absent any evidence, are just a backhanded way of attacking his beliefs. You might as well say no Southern Baptist should be chair, since someone who believes that women should be subject to their husbands, homosexuality is evil and Jews are doomed to hell won't be fair to female, gay or Jewish job candidates. Or no Orthodox Jew or Muslim should be chair because religious restrictions on contact with the opposite sex would privilege some job candidates over others.

But nobody ever does say that. As long as a believer ascribes his views to his faith, he can say anything he wants and if you don't like it, you're the bigot. Simplistic as Shortell's essay is, it does raise a useful point: Faith and morality are not only not the same, as Americans like to think, they express contradictory impulses. I believe Kierkegaard said something along these lines in Fear and Trembling in his discussion of Abraham's willingness to sacrifice his son. Or as the physicist Steven Weinberg put it more recently: "With or without religion, you would have good people doing good things, and evil people doing evil things. But for good people to do evil things, that takes religion." Would Weinberg be too "offensive" for CUNY?...

People who believe in academic freedom have got to take these incidents seriously and get active before it's too late. "The perfect case is never going to come along," my old friend the historian Joshua Freeman told me. "Nobody is going to fire their Nobel laureate."

The legal protections, alas, of academic freedom do not include administrative appointments, as we have had occasion to note before.

There is another useful discussion of the case here.

"Left-wing" is a Matter of Perspective

And it helps to be cosmopolitan.  A law student in Ireland writes to offer such a perspective:

I have only recently become aware of your weblog so I must confess my first introduction to your post on "the myth of left-wing harvard" was due to your cross-reference in your post about Juan Non-Volokh.

I am from Ireland and had the good fortune to spend a year in [a top law school in the Southeast, name omitted] this year. It came as somewhat of a shock to me that the student body were so conservative (although, to be fair it is [name of Southern state omitted]). In particular, I remember one class in Law and Economics (know your enemy) where a student
advocated a position which the professor (correctly) identified as a socialist one. The student then backed down. I am far from claiming that socialism is "right" but it was also interesting that this signalled the end of discussion, i.e. socialism is "wrong".

I do not mean to suggest that the Prof would not have entertained a discussion about the matter-the student pre-empted him by self-censoring. This, to me, is a perfect example of what you are talking about in both posts. You create a fictitous "left", i.e. Harvard etc.,  which is actually right-of-centre and then self-censor all viewpoints which fall outside this "left" and the true right. Needless to say, this has a very powerful legitimising force by constricting the debate sphere which leads, although this might be a leap, to a situation where most academics, influenced by their surroundings, not to pursue issues with the same intellectual vigour.

I will say, however, that I had a great time in [school name omitted] and met many wonderful people. The education was also fantastic.

I have enjoyed reading your weblog since I found it. Keep up the good work.

P.S. I first noticed this trend when I arrived in the states to find CNN and the New York Times pilloried as left-wing where they would not be considered so in Ireland. Ireland is not an overly-liberal country by any means.

I love Austin and the UT Law School, but can there be any doubt that my perspective is, shall we say, out of sync with that of this country?

CIA Director Goss is Really "Medium Lobster" of Fafblog!

Shocking!

Smithsonian Returns Discovery [sic] Institute Money

We remarked on this case previously; a reader writes to say that the Smithsonian is now sending the following e-mail to those who write to protest:

The Smithsonian's National Museum of Natural History recently approved a request by the Discovery Institute to hold a private, invitation only screening and reception at the Museum on June 23 for the film "The Privileged Planet."  Upon further review we have determined that the content of the film is not consistent with the mission of the Smithsonian Institution's scientific research.  Neither the Smithsonian Institution nor the National Museum of Natural History supports or endorses the views of the Discovery Institute or the film "The Privileged Planet." Given that the Discovery Institute has already issued invitations, we will honor the commitment made to provide space for the event, but will not participate or accept a donation for it.

Glad they partly did the right thing.

More on the Case for Impeachment...

...plus a fine excorciation of The Washington Post.

Who is Juan Non-Volokh?

6/9/09 Update:   I gather this topic is 'back in the news,' at least in the blogosphere, and several blogs have linked to the item, below.  I have posted some current thoughts on the general issue of pseudonymity/anonymity in cyberspace here.

=========original posting follows=======================

Yesterday, the lone anonymous poster at the quasi-libertarian Volokh Conspiracy, who uses the pseudonym "Juan Non-Volokh," posted a comment on my lengthy entry about the constitutional case for impeachment.  Well, actually, he bypassed all the real arguments, and picked up on something at the very end.  Mr. Non-Volokh's original posting, titled "Nazi Germany = McCarthy Era = America Today?", reads as follows:

At the end of a long post on whether President Bush can be impeached...Brain Leiter offers this "somewhat tangential comment":

in every society of which I'm aware the vast majority of the preeminent academic figures were, in general, cowards when it came to their own regimes, and apologists for what later generations would see clearly as inhumanity and illegality. This was clear in Germany in the 1930s, as it was in America in the 1950s. There is no reason to think the United States today is any different. (Emphases in original).

While this statement might not equate Nazi Germany with the current regime, it certainly suggests an equivalence between those who failed to oppose Nazism, those who failed to oppose McCarthyism, and those who do not oppose the Bush Administration. Haven't we had enough of these sorts of comparisons?

Might not???  Jason Walta alerted me to this bizarre misreading in an e-mail, and remarked, "I thought it was quite funny that Juan Non-Volokh, a supposed legal academic who blogs anonymously at the Volokh Conspiracy, criticized your plain-as-day observation that academic figures are often cowards when it comes to their own regimes."  There was obviously no equation of Nazi Germany with the United States, but rather the observation that "preeminent academic figures" in all societies (even the most heinous, like Nazi Germany) tend, in general, to be apologists for the status quo.  Mr. Non-Volokh, alas, is not a very able reader, and, like many on the right, is strangely agitated by comparisons bewteen Bush and fascist leaders.  You would think if the comparisons had so little merit, conservatives would just laugh them off, instead of jumping up and down about imagined comparisons in contexts where they aren't even suggested.   (To be sure, I think the comparison is worth exploring, and since I'm a nice guy, I even supplied a link in the Update to my original post to an actual discussion of the comparison with which Mr. Non-Volokh is obsessed.)

Having been caught "red-handed," as it were, in his bad reading, Mr. Non-Volokh then added an "Update" to his original post as follows:

In an update, Leiter links to an earlier post cataloging alleged similarities and differences between 1930s Germany and America today.

Actually, the main point of the Update--unmentioned of course by Mr. Non-Volokh--is that Mr. Non-Volokh can't read.  Putting that aside, Mr. Non-Volokh is now reduced to quoting the pathetically dumb Clayton Cramer (how dumb?  almost anything on his blog will do, but start here).  Cramer, quoted by Non-Volokh, says:

Jurisprudence Grading is Done!

This will mostly be of local interest:  I've submitted final grades for Jurisprudence (as some had implored me to do).  It was a very good set of exams, and I thank everyone for their hard work.  It is one of the two best things about this job to be able to work with such outstanding students.

I will also confess that this was probably the most difficult pair of essay questions I've put on the final exam over the last decade, so the class's strong performance is particularly notable in that regard.  For those outside UT, here are the two essay questions students had to address on the take-home final:

1.  On the first page of “Natural Law Jurisprudence,” 9 Legal Theory 241 (2003), Mark Murphy notes that Dworkin’s view is sometimes described as a “natural law” theory, but then adds that only Finnis’s theory represents “the full-blooded natural law view.” In what way do Dworkin’s and Finnis’s theory differ, such that it makes sense to describe Finnis’s as a more “full-blooded” natural law theory than Dworkin’s?  You may find it useful to draw on both Murphy’s and Hart’s discussion of natural law theory (in Ch. IX of The Concept of Law), in addition to the particulars of Dworkin’s and Finnis’s theories themselves.

2.  Suppose it is true that (a) the “rule of recognition” is a kind of social rule (as Hart claims) and (b) appellate judges respond to underlying situation-types rather than to the “paper rules” they cite in their opinions (as Llewellyn, Oliphant, Radin, and other “sociological wing” Realists claim).   Would it follow that the “paper rules” the judges cite aren’t legally valid since the real criteria on which the courts are basing their decisions (for example, the norms of the commercial culture in which the dispute arose) are not the criteria that validate these paper rules?  Why or why not?  You will need, of course, to explain the sense in which the rule of recognition is a social rule and explain the view of adjudication in the “sociological wing” of Realism in order to answer this question.

ANU Makes Offer to Philosopher Hurley at Warwick

The Australian National University has made a senior offer to Susan Hurley at the University of Warwick, whose work ranges widely over issues in philosophy of mind and cognitive science, political philosophy, and philosophy of social science and decision theory.

Has the U.S. War with Iran "Already Begun"?

Scott Ritter (who was proven right on most of his major claims about Iraq) thinks so; an excerpt:

Americans, along with the rest of the world, are starting to wake up to the uncomfortable fact that President George Bush not only lied to them about the weapons of mass destruction in Iraq (the ostensible excuse for the March 2003 invasion and occupation of that country by US forces), but also about the very process that led to war.

On 16 October 2002, President Bush told the American people that "I have not ordered the use of force. I hope that the use of force will not become necessary."

We know now that this statement was itself a lie, that the president, by late August 2002, had, in fact, signed off on the 'execute' orders authorising the US military to begin active military operations inside Iraq, and that these orders were being implemented as early as September 2002, when the US Air Force, assisted by the British Royal Air Force, began expanding its bombardment of targets inside and outside the so-called no-fly zone in Iraq.

These operations were designed to degrade Iraqi air defence and command and control capabilities. They also paved the way for the insertion of US Special Operations units, who were conducting strategic reconnaissance, and later direct action, operations against specific targets inside Iraq, prior to the 19 March 2003 commencement of hostilities....

The fact is that the Iraq war had begun by the beginning of summer 2002, if not earlier....

[This] represents a record of precedent on the part of the Bush administration which must be acknowledged when considering the ongoing events regarding US-Iran relations. As was the case with Iraq pre-March 2003, the Bush administration today speaks of "diplomacy" and a desire for a "peaceful" resolution to the Iranian question. 

But the facts speak of another agenda, that of war and the forceful removal of the theocratic regime, currently wielding the reigns of power in Tehran.

As with Iraq, the president has paved the way for the conditioning of the American public and an all-too-compliant media to accept at face value the merits of a regime change policy regarding Iran, linking the regime of the Mullah's to an "axis of evil" (together with the newly "liberated" Iraq and North Korea), and speaking of the absolute requirement for the spread of "democracy" to the Iranian people.

"Liberation" and the spread of "democracy" have become none-too-subtle code words within the neo-conservative cabal that formulates and executes American foreign policy today for militarism and war. 

By the intensity of the "liberation/democracy" rhetoric alone, Americans should be put on notice that Iran is well-fixed in the cross-hairs as the next target for the illegal policy of regime change being implemented by the Bush administration.

But Americans, and indeed much of the rest of the world, continue to be lulled into a false sense of complacency by the fact that overt conventional military operations have not yet commenced between the United States and Iran.... 

The reality is that the US war with Iran has already begun. As we speak, American over flights of Iranian soil are taking place, using pilotless drones and other, more sophisticated, capabilities.

The violation of a sovereign nation's airspace is an act of war in and of itself. But the war with Iran has gone far beyond the intelligence-gathering phase. 

President Bush has taken advantage of the sweeping powers granted to him in the aftermath of 11 September 2001, to wage a global war against terror and to initiate several covert offensive operations inside Iran.

The most visible of these is the CIA-backed actions recently undertaken by the Mujahadeen el-Khalq, or MEK, an Iranian opposition group, once run by Saddam Hussein's dreaded intelligence services, but now working exclusively for the CIA's Directorate of Operations.

It is bitter irony that the CIA is using a group still labelled as a terrorist organisation, a group trained in the art of explosive assassination by the same intelligence units of the former regime of Saddam Hussein, who are slaughtering American soldiers in Iraq today, to carry out remote bombings in Iran of the sort that the Bush administration condemns on a daily basis inside Iraq....

But the CIA-backed campaign of MEK terror bombings in Iran are not the only action ongoing against Iran. 

To the north, in neighbouring Azerbaijan, the US military is preparing a base of operations for a massive military presence that will foretell a major land-based campaign designed to capture Tehran. 

Secretary of Defence Donald Rumsfeld's interest in Azerbaijan may have escaped the blinkered Western media, but Russia and the Caucasus nations understand only too well that the die has been cast regarding Azerbaijan's role in the upcoming war with Iran.

The ethnic links between the Azeri of northern Iran and Azerbaijan were long exploited by the Soviet Union during the Cold War, and this vehicle for internal manipulation has been seized upon by CIA paramilitary operatives and US Special Operations units who are training with Azerbaijan forces to form special units capable of operating inside Iran for the purpose of intelligence gathering, direct action, and mobilising indigenous opposition to the Mullahs in Tehran.

But this is only one use the US has planned for Azerbaijan.  American military aircraft, operating from forward bases in Azerbaijan, will have a much shorter distance to fly when striking targets in and around Tehran. 

In fact, US air power should be able to maintain a nearly 24-hour a day presence over Tehran airspace once military hostilities commence....

More Apt Words for Bush from the Mother of a Dead Soldier

Cynthia Sheehan strikes again; an excerpt:

The president of Gold Star Families for Peace, a mother who lost a son in Iraq, criticized the United States' "illegal and unjust war" yesterday during an interfaith rally in Lexington.

Cindy Sheehan of Vacaville, Calif., accused President Bush of lying to the nation about a war which has consumed tens of billions of dollars and claimed more than 1,700 American lives -- including the life of Army Specialist Casey Austin Sheehan....

Sheehan ridiculed Bush for saying that it's "hard work" comforting the widow of a soldier who's been killed in Iraq.

"Hard work is seeing your son's murder on CNN one Sunday evening while you're enjoying the last supper you'll ever truly enjoy again. Hard work is having three military officers come to your house a few hours later to confirm the aforementioned murder of your son, your first-born, your kind and gentle sweet baby. Hard work is burying your child 46 days before his 25th birthday. Hard work is holding your other three children as they lower the body of their big (brother) into the ground. Hard work is not jumping in the grave with him and having the earth cover you both," she said....

"We're watching you very carefully and we're going to do everything in our power to have you impeached for misleading the American people," she said, quoting a letter she sent to the White House. "Beating a political stake in your black heart will be the fulfillment of my life ... ," she said, as the audience of 200 people cheered.

Maybe Ms. Sheehan will be a guest-blogger for the callous Ann Althouse?

(Thanks to Charles Schulyer for the pointer.)

Arizona also Makes Bid for Political Philosopher Gaus

In addition to the offer to Shaun Nichols, the Department of Philosophy at the University of Arizona has also made an offer to distinguished political philosopher Gerald Gaus at Tulane University.  If Gaus moves, this will not only bolster Arizona's status as one of the top programs in political philosophy in the country, it will also make Arizona (with Gaus and David Schmidtz) unquestionably the leading program in the country for students especially interested in the "classical liberal" traditions in political theory.

Can Bush Be (Constitutionally) Impeached?

Four constitutional scholars comment here on Ralph Nader's proposal.  A few observations:

Mark Tushnet (Law, Georgetown) writes:

I don't want to engage the factual claims about the meaning of the Downing Street memo. Let's assume that the memo accurately reports the facts and that a reasonable person could conclude that Bush administration officials lied so that they could lead the nation into a war with Iraq. Would those facts justify impeaching them?

On its face, that question is laughable -- because the answer is so obviously yes. If we could ask any of the leaders of the movement to get the Constitution adopted, "Could a president be impeached for lying to the American people in order to get their support for a foreign war?" he would say, "Of course. That's exactly what the impeachment provision is all about."

Impeachment was designed as a mechanism for removing from office a person who had demonstrated the kind of political irresponsibility that seriously threatened the nation's political institutions -- and whose continuation in office was so dangerous that waiting until the next election couldn't be tolerated. Why would anyone think that the kinds of misrepresentations [Bush made] believe the administration made shouldn't trigger the impeachment provision?

Mostly because we've been misled by our contemporary understanding of the words the Constitution uses to describe the preconditions for impeachment, having forgotten what those words meant when the Constitution was adopted.

Professor Tushnet is a "man of the Left," as they say, so the fact that he argues in this fashion betrays something deep about constitutional culture in the United States.  Why is a "contemporary understanding of the words the Constitution uses" a basis for misunderstanding as opposed to correct understanding?  Why is it even remotely relevant what those words meant when the Constitution was adopted?  The right has been pushing this non-sequitur for a couple of decades now, but they still have no answers to the simplest questions about the legal or moral relevance of the "original meaning" or "original intent" of Constitutional provisions.  Those who produced the "original" meanings have no claim of democratically sanctioned authority over us; they have no claim of special moral expertise or insight; to make the meaning of Constitutional provisions turn on historical details invisible in the text itself undermines rule of law values like the need for public and intelligible legal standards; and so on.  [Note:  see "Another Update" at the end for Professor Tushnet's useful explanation of the work the originalist argument is doing.]

The Constitution says that the president and other civil officers, like the vice president and secretary of defense, can be impeached for treason, bribery or "other high crimes and misdemeanors."

Today we think that these provisions refer only to criminal behavior. The House of Representatives impeached President Clinton because it concluded that he had perjured himself. (Technically, "impeachment" refers to the decision by the House to submit a case to the Senate, where the impeachment charges are tried; if the Senate convicts, the person -- already impeached by the House -- is removed from office.) The constitutional dispute in the Clinton impeachment was over whether the reference to "high crimes and misdemeanors" included all serious crimes, not whether a president could be impeached for non-criminal behavior.

But, to the Founders, the answer to that question was obvious. The impeachment provisions referred to behavior that amounted to extraordinarily serious political misconduct -- selling out the country to a foreign nation (treason), selling out the national interest for private gain (bribery), and similar political misconduct. You can have arguments around the edges of the category -- could a president be impeached for murdering his wife's paramour? (Sure, because even though the misconduct is not in itself political, it demonstrates an inability to lead sufficiently serious to justify removal prior to the next election) -- but lying to the American people to gain support for a foreign adventure that they wouldn't otherwise endorse isn't even a close case.

One of the interesting aspects of the four commentaries is that none of the other "eminent" scholars are able to see this quite so clearly.  (Professors Gerhardt and Sunstein, remarkably, deny it.)

Still, there are a couple of complications. Impeachment has its origins in the British system of the 1700s, where the king appointed the prime minister. Impeachment gave the Parliament a means of removing an unfit leader who somehow retained the king's confidence. The U.S. Constitution gives us a different way of getting rid of unfit leaders -- we can throw them out of office at the next election. (Or, in the case of a second-term president, we simply can wait a few years and he'll be gone, along with his team.)

So, for us, impeachment should be reserved for situations in which two conditions are met -- unfitness as demonstrated by serious political misconduct, and a need to replace the president so urgent that we can't put up with waiting until the next election.

During the last election, there was no clear perception (outside this blog, of course!) of the extent of the malfeasance by Bush & co. in tricking the nation into war; the "official" response prior to the election to the revelation that there were no WMDs in Iraq was hand-wringing about how the intelligence agencies could have failed us.  The documentary record emerging from London makes it far more likely that this hand-wringing was nonsense.  How could it not be urgent to remove from office public officials whose conduct is as duplicitous and dangerous as theirs has proven to be?

Our next "analysis"--it might be more aptly described as "irrelevant sanctimonious condescension"--comes from constitutional historian Jack Rakove (Stanford):

Since the evidence of the administration's dissembling (or "disassembling," as a recent Bushism has it) failed to sway a majority of the electorate last fall, impeachment is the last option available for those who naively believe that every political wrong must have its remedy -- and sooner rather than later.

There was no evidence of Bush's "dissembling" at the time of the last election as clear as the recent London memos, and what evidence of dissembling there was was hardly front-and-center in the campaign.  (One might have thought historians would have somewhat better historical memory when it comes to events of such recent vintage!)  Unfortunately for Professor Rakove, he conjoins this odd factual inaccuracy with his first irrelevant display of condescension:   why does Professor Rakove suppose that anyone calling for "impeachment" would be committed to the proposition that "every political wrong must have its remedy"?  This irrelevant, and baseless, speculation tells us all we need to know about Professor Rakove's biases in this matter.

Why would anyone even bother to make this argument? One would have to suspend oodles -- nay, caboodles -- of disbelief to imagine a scenario under which impeachment proceedings could even begin, much less make any headway in a Republican House. And even with impeachment, how could a two-thirds vote for conviction in the Senate possibly be mustered (or maybe the word is really "mustarded")?

Is Professor Rakove so naive (or so self-important?) as to believe that he is the only one aware of the political situation in the Congress?  Again, one might have imagined an historian, of all people, would be sensitive to the ways in which political rhetoric--such as calls for impeachment--can have quite disparate effects.  Certainly the venal Republicans in the Congress will not vote to impeach their Dear Leader; but if talk of impeachment moves to center stage in public discourse, the Republicans will be put on the defensive, in ways that may have both electoral ramifications and effects on the kinds of harmful legislation they can get through Congress.

But let's suspend our disbelief for a moment. Politically unrealistic as Nader has repeatedly demonstrated himself to be, an abstract case could be made for uttering the I-word with the current administration in mind....

It has been said that, "Patrioism is the last refuge of scoundrels."  (In America, it is now the first.)  Might we add that, "Political 'realism' is the first refuge of complacent cowards"?

For one thing, the impeachment of Bill Clinton in 1998 set the bar for "high crimes and misdemeanors" so low that any subsequent president could legitimately worry about this generally moribund provision of our Constitution being deployed against him whenever an opposition party controlling Congress found it convenient to do so.

For another, a decision to initiate a war that depended on the calculated misrepresentation of information on the scale alleged against this administration plausibly falls within the unspecified category of "high crimes and misdemeanors" that the framers of the Constitution belatedly added to their original list, limited to treason and bribery. The fact that this original deception was accompanied by a wholesale failure to plan for the occupation presumably compounds the case for impeachment.

The preceding is the one pertinent paragraph in Professor Rakove's monologue.  Alas, he did not stop here.

It is worth noting, though, that the framers adopted "high crimes and misdemeanors" only after they had first rejected George Mason's proposal to add "maladministration" to the list of impeachable offenses. In James Madison's view, "So vague a term will be equivalent to a tenure during pleasure of the Senate." Gouverneur Morris added a further objection. "An election of [the president] every four years will prevent maladministration."

Why is it worth noting?  Who cares what James Madison (or George Mason) thought?  No one alive today voted for James Madison.  James Madison has no special moral expertise.  The meaning of public standards of conduct can not, consistent with the rule of law, turn on what was in the head of some man more than two hundred years ago.

Simply put, Americans know as much now about the defects in the administration's case for war as we did when we voted in November.

This is so obviously false, that one wonders (1) whether Professor Rakove was residing in the United States last year, and (2) whether he has actually read any of the memos coming out of London.  Since the rest of his "analysis" depends on this false assertion, there is no point in continuing.

Michael Gerhardt (Law, North Carolina) is apparently the designated shill for the Bush Administration in this quartet of monologues (though Professors Rakove and Sunstein do their parts, to be sure).  His opening paragraph suggests as much:

Yale Pursuing Historian of Philosophy Winkler at Wellesley

The Department of Philosophy at Yale University has made a senior offer to Kenneth Winkler, a distinguished historian of modern philosophy, whose interests nicely complement those of Michael Della Rocca at Yale.  If Winkler makes the move (he recently turned down an offer from Boston University), this would certainly make Yale one of the top choices in history of modern philosophy.

Arizona Makes Bid for Philosopher Nichols at Utah

The Department of Philosophy at the University of Arizona has made an offer to Shaun Nichols at the University of Utah, who has been one of the leaders in recent years (along with John Doris [Wash U/St. Louis], Gilbert Harman [Princeton], Joshua Knobe [North Carolina], Stephen Stich [Rutgers], and others) in bringing cognitive science and experimental methods to bear on issues in moral philosophy and cognate fields.