Constitutional law professors and our critics
VOLOKH at law.ucla.edu
Wed Sep 29 21:18:35 PDT 2004
Hmm; seems to me that opinion journals -- the Weekly Standard, the
Nation, the New Republic, or whoever else -- in the process of
expressing their opinions, also make factual claims. They have an
obligation to be accurate in their factual claims. But if they make
accurate allegations about Prof. Liberal, what reason is there to
ascribe to them some sort of obligation to try to find some unknown
conservative professor to make similar allegations about?
Seriously, say that you find The Nation accusing a conservative
professor of plagiarism, or for that matter a conservative Senator of
hypocrisy or folly or what have you. Would you say "No, the Nation
shouldn't do this, since opinion magazines should engage in opinion"?
Would you say that The Nation now has an obligation to find liberal
Senators who are guilty of similar offenses? Would anyone on this list?
If so, I'd very much like to hear it, since my understanding is that
this has never been understood as the obligation of ideological
magazines such as The Nation, The Weekly Standard, and the like.
The "mistake" in the posts I was criticizing is a category error:
The assumption that because we demand evenhandedness from, say, The New
York Times or other newspapers that hold themselves out as neutral
reporters of the news, we should likewise demand it from ideological
journals. I don't think that this is their job. They criticize their
adversaries, and rarely their friends; they certainly don't go out of
the way to try to discover friends to criticize, which is what I
understand Bryan's and Bobby's posts to be demanding. That's been, as
best I can tell, the general expectation of some journals, and there's
nothing wrong with their doing it.
Let me tie this back to us constitutional law academics. We are an
era where (1) constitutional law scholars are quite likely to become
public intellectuals and political players, or in any event influence
legal debates, and thus draw criticism, and (2) there are more media
outlets than ever -- here it's a magazine, but for instance in the
Bellesiles scandal it was originally a blogger and a discussion list
participant, Clayton Cramer, who began to intensely check and criticize
Bellesiles' work, and as to Tribe and Ogletree much of the criticism has
been conveyed by a blog and e-mails -- that are willing to engage in
such criticism. We will hear more such charges in the future.
It does our field and its values no good to try to minimize the
charges by pointing out alleged lack of evenhandedness by the critics.
Of course any particular person or organization is going to want to
criticize some targets more than others; if the consequence of that is
that the critics unearth genuine problems, then that's a net plus, not a
net minus. It's better to have ten people finding errors on the Left
and ten on the Right than to limit the error-finding to the much
narrower zone of supposedly neutral observers. And in any event, if the
charges accurate, they deserve to be dealt with regardless of the
critics' motivation (and I stress again that Tribe, whom I much respect
and like personally, did deal with them graciously and correctly).
From: RJLipkin at aol.com [mailto:RJLipkin at aol.com]
Sent: Wednesday, September 29, 2004 5:17 AM
To: Volokh, Eugene
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: FW from Erwin Chemerinsky re: Tribe
In a message dated 9/29/2004 1:23:13 AM Eastern Standard Time,
VOLOKH at law.ucla.edu writes:
Naturally opinion magazines will
spend more of their time and effort exposing the problems in the work of
those with whom they disagree than of those with whom they agree. So?
That, for better or worse, is the nature of opinion magazines; and
they're still doing a service by exposing the problems, and if the Left
exposes the Right's errors and the Right exposes the Left's, the result
is still more problems exposed and, as here, corrected.
Why is it "in the nature of" and opinion magazines to expose
plagiarism-related issues of anyone at all? Opinion magazines, as I
understand their function, should engage in opinion: "Tribes'
constitutionalism is harmful," "President Bush's war is morally
required," and so forth. Reporting on (and charging) plagiarism is not
paradigmatically opinion if it is opinion in any significant and
interesting sense at all. If that's true, and generally speaking, what
justifies the remark (not quoted above) that "these writers [in opinion
no obligation to be evenhanded." Surely, they have no constitutional or
legal obligation, but these are not the only possible obligations.
Evenhandedness seems to be a journalistic obligation, and in my world, a
fundamental moral obligation. Thus, I'm not sure I can identify what
kind of 'mistake' it is to lash out against these watchers on the
grounds that they're somehow not evenhanded." Criticizing bad faith or
hypocrisy in these matters for anyone believing in evenhandedness on
moral grounds (and probably journalistic grounds also) seems far from a
mistake; rather such criticism seems morally required.
For me at least, it would be helpful for Eugene to indicate just
what he means by 'mistake' in this context. I would think it fairly
obvious that, in general, if an opinion magazine (or anyone for that
matter) enters the arena of plagiarism watching, it does have an
obligation to be evenhanded. So Eugene's explanation here would be
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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