Academic Civility
posted by Daniel Solove
After reading the posts by Dan Markel and Dave Hoffman on academic civility, I can’t help but join into the fray. Markel and Hoffman offer radically different perspectives. Markel suggests that professors should criticize other professors’ work mildly. He says that he will “drop adverbs and instead use locutions such as the claims advanced in the article ‘seem mistaken or inaccurate’.” He argues for a bunch of other steps academics should take lest they slightly mischaracterize another’s argument, such as showing one’s criticism to the academic being criticized first for comments.
Hoffman takes the opposite approach: “[T]he unique conceit of legal scholarship (among the humanities) is that it directly affects the lives of millions of people. Since I intend for my work to better those millions of lives, and I think my arguments are correct, I have to assume that people I disagree with on fundamental issues either are wrong about the results of their policies in the real world, don’t care about their fellow citizens (more precisely, care about ideas as intellectual games), or are simply nasty folks.”
I believe that both Markel and Hoffman are wrong. Put in Markelian terms, it might appear to be the case that there’s a possibility that Markel is not entirely correct, though I can’t be certain. In Hoffman’s terms, Hoffman’s perspective stems from an evil fundamentalism [insert reference to terrorists here]. In similistic terms, Markel advances a love your opponent approach and Hoffman advances a hate your opponent approach.
First of all, I believe that legal academics should not be so convinced of the truth of their arguments that they are unwilling to welcome opposing viewpoints. I, for one, think and hope I’m right, but I’m far from certain. I strive to be correct, but I believe it is also important to entertain doubts, to listen and address counterarguments, to always be aware of my fallibility. It is a kind of fundamentalism that leads to the belief that one’s views are definitely correct and that all who disagree must be wrong and evil. I believe that this kind of fundamentalism is incompatible with my vision of what being an academic is all about.
Second, while I hope that my ideas affect society, I do not see myself as a crusader. I present arguments, ideas, and evidence for people to use. I thus supply grist for certain legal or policy debates, but I don’t see myself as leading the charge for change. Had I wanted to affect society in this way, I would have become an advocate or a politician. While I care deeply about how my ideas play out in practice, I think it is important for the academic to retain some degree of detachment.
On the other hand, I don’t agree with Dan Markel that one must be very deferential to those making opposing arguments. Academic discourse is a vigorous debate. Ideally, arguments can be made in a civil way (name calling is counterproductive and adds nothing). But this doesn’t mean that one should pull one’s punches. If I think another person is wrong, I’ll point it out as strongly and as powerfully as I possibly can . . . and sometimes even with a little bit of spice. Sometimes I’ll solicit advance comments from the scholar I’m critiquing, but I don’t view this as a necessity. Being criticized is part of this business, and you need to have a thick skin. I’d much rather be criticized than ignored, so my attitude is “bring it on.”
In the end, I’m engaging in a debate and presenting arguments. It is my arguments that will either win the day or will not, and my role is to make them as persuasively, as thoughtfully, as logically, and as completely as possible. If another scholar disagrees, so be it. My arguments will either hold up or they won’t. Hating or loving my antagonists will do absolutely nothing to change that.
December 28, 2006 at 9:05 pm
Posted in: Law School (Scholarship)
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Responses (6)
dave - December 29, 2006 at 11:23 am
Oddly, there is an interesting article up on Reason magazine with some, limited, relevance to this debate. (Although the author seems to have the primary goal of taking potshots at Ann Althouse, his bottom line is norms of civility.)
Dan Markel - December 29, 2006 at 12:04 pm
Words must be escaping my control. I didn’t say anything about deference to those making opposing arguments. What I said was that our focus should be on fairness and accuracy in characterizing other people’s work, especially those we would criticize. I indicated that our interlocutors should be deemed as potential teachers. But that doesn’t mean that there is any deference to them or their arguments or any “love my opponent” mushiness going on either. My guess is that both Dave and my positions are being mischaracterized so that Dan can stake out a more reasonable or attractive middle position…in the service of humor and some larger point.
As to practical matters how much disagreement is there with the following three suggestions I made:
1) have I characterized the work of the other person fairly and accurately such that if I were (notice the hypothetical here) to show the draft to the object of criticism she would say you have not distorted my meaning? (I mentioned that I actually try to follow up on this by showing the work to those I criticize before I consider it finished. I recognize that not all think it’s obligatory, but is there any downside to doing so?)
2) Does anyone disagree with the claim that what I called drive by characterizations of schools of thought are less helpful to academic debate than engagement with specific claims by specific authors?
3) Does anyone disagree with the claim that one should try to engage, if relevant, the most recent work of the person on the given subject to avoid the potential pitfalls I spotlighted in my post?
If these three points are in contention, I’d like to know. I’d also like to know if there are any other constructive ideas about how to realize the ethical practice of legal scholarship.
Daniel J. Solove - December 29, 2006 at 3:43 pm
Dan,
On your point (1), there is no downside, but your post struck me as suggesting an “obligation,” which is a word you used toward the beginning of your post. But other academics commonly gripe about being mischaracterized when the fault isn’t you but them. They might not have been clear, might have been quite vague, and it is an easy response to say “well, you mischaracterized me. . . ” Obviously, I think that mischaracterizing is bad, but one person’s mischaracterization is another’s clarification or tracing out the logical implications in an argument. What I disagreed with in your post was what I read to be an attitude of excessive courtesy to those you’re critiquing. Perhaps this isn’t what you meant, but it came across that way. The most apt word for it struck me as “deferential,” and thus I don’t see that this characterization was improper. As for “loving” your opponent, this was a deliberate exaggeration, but it was intended to clearly come across as such.
For example, you write: “Anytime I’m tempted to write out of rage that someone’s argument is hopelessly misguided or fabulously wrong, I try to remember how much I cringe when my own work is criticized. I drop adverbs and instead use locutions such as the claims advanced in the article ‘seem mistaken or inaccurate’ for the following reasons…” This strikes me as trying to be way too gentle, and as being a bit too thin-skinned about being criticized. I don’t cringe when I’m criticized, and if I think an argument is wrong, I claim it is wrong, regardless of how much the person I’m criticizing might cringe.
On (2), who could disagree? You’ve characterized your claim here as so obvious that nobody would disagree.
On (3), I only partially agree on this one. Sometimes, it can be helpful to trace a person’s development of thought over time. Sometimes, there’s an early idea that a person has disavowed but that is nevertheless worth discussing and critiquing. Of course, if a person has backed away from it, I would mention that, but some scholars are tremendously wiggly and hard to pin down. Think of Ronald Dworkin and compare Taking Rights Seriously to Law’s Empire. You can actually pin Dworkin down a bit in Taking Rights Seriously. Law’s Empire is often so vague that it is hard sometimes to pin down what he is claiming.
The tone of your post was in terms of “ethics” and “obligations,” which is why I reacted the way I did. I differ from you in that I don’t see it in terms of ethics or obligations — I see it in terms of effective or ineffective practices. I don’t think we’re obligated to show other scholars our critiques beforehand; nor do I think we’re obligated to focus on their recent work. In many cases, it is productive to do so. But not always.
It also struck me that in your post you were struggling between two sets of “obligations” — (1) to the advancement of ideas; and (2) to the scholars you were criticizing. Often these two coincide, but not always. At times, I was wondering whether you were sacrificing (1) for the sake of (2). I believe that both are important, though in cases of conflict, I’d be more inclined to sacrifice (2) for (1).
amy - December 29, 2006 at 7:29 pm
To me, the practice of showing an article to those whose work it criticizes before publication seems ethically problematic, for reasons similar to those that journalists don’t allow those quoted in an article to review and “correct” their quotes. The danger is that the object of the criticism will try to spin her arguments to present herself in a better light, and that the author of the critical article will be tempted to tone it down. I suppose the sort of communication Dan Markel suggests might be warranted if the person being criticized has made, say, a very complicated and technical argument, but generally why should we suppose that an outside reader is more likely to be biased against any given work of scholarship than that work’s author is to be biased in favor of it?
Sam Bagenstos - December 29, 2006 at 8:26 pm
In my experience, sending your drafts to the people you criticize just gives them a chance to get pissed off at you sooner. That’s not to say that I don’t send them. I think Markel is right that it’s the right thing to do. But one doesn’t reliably gain a benefit to one’s work or anything other than one’s virtue from doing so.
Dan Markel - December 30, 2006 at 10:50 pm
To Dan S.’s responsive comments, I resisted the ascription of “deference” because that would suggest at least giving the benefit of the doubt to the interlocutor. I intended no such suggestion nor do I think my words leave that impression. I simply urged “the fair and accurate” test and a style that stripped away heated rhetoric and instead relied on substantive arguments. None of that suggests a preference for sacrificing the advancement of ideas in service to the tender feelings of the scholars whose work I am criticizing. It may suggest, on the other hand, that we can make our points and still recognize that there are human beings involved.
To Amy: I think there’s a big difference between scholarship and journalism but not so big that journalism couldn’t stand to benefit from what I’m urging also. Increasingly journalists are sensitive to letting experts look at the quotations before publication because journalists recognize the risk of error and appreciate that experts don’t like being misquoted. I’ve been quoted in the media on various occasions and I make clear that any quotations they want to use should be checked by me first, unless they want me to respond via email, which is another way to reduce the risk of error. I think you also assume that people who show their work to others are obligated somehow to alter the work as a result of all responses they receive. If I show someone my critique, and he doesn’t like my characterization, but I find his objections unfounded, I’m under no obligation to alter what I wrote subsequently to please the person. I will still render my independent judgment. (Of course this heightens the risk to which Sam alludes: namely, a head start in being pissed off at you
.) I wonder, however, how pissed off one can be if you act in a completely up front and classy way, along the lines of: hey, I’ve written this few pages about your work, and I was hoping you could let me know if you think I’ve mischaracterized anything of yours so I can try to get it right before submission or publication…
The modesty with which one approaches one’s own arguments (something Dan S. mentions in his initial post) will have some effect of softening the critique’s likelihood of pissing off someone. But I’ve only been in this business for a short while, so perhaps I’m naive and Sam may have some stories worth sharing with the punks among the crowd here.
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