Constitutional law professors and our critics

[RJLipkin at aol.com]

In a message dated 9/30/2004 12:19:22 AM Eastern Standard Time,  
VOLOKH at law.ucla.edu writes:

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.  


        As far as I can tell,  Eugene is committed to some type of 
essentialism delineating nicely different  categories of journalism which dictate what 
is or is not the job of those who  participate in that category. I don't know 
what methodology Eugene invokes  in cutting up the journalist landscape, or 
possibly the entire intellectual  landscape, in this manner. For Eugene 
"ideological" and "evenhanded"  are not necessarily related. Well maybe that's true of 
certain senses of  'ideological," but not all, and it is not true, in my view, 
of opinion journals generally. I take the admonition to evenhandedness as an  
elementary point about honesty and decency, namely, when you argue a 
position,  try as far as context permits, to present your arguments and consider your  
adversary's possible replies.  Moreover, in my view, make sure you're  
presenting your adversary's argument in its best light. Distinctions in  categories 
of journalism are irrelevant to this point.
 
        Now what about a  factual claim unflattering to those you politically 
oppose.  Again, in my  view, honesty and decency dictate if you report and/or 
condemn Jones'  plagiarism, your adversary, report on your own side's demons 
as well. 
 
        Eugene writes "[i]t  does our field and its values no good to try to 
minimize the charges by pointing  out alleged lack of evenhandedness by the 
critics."  But this is simply a  non sequitur.  I'm not trying to minimize 
Tribe's  conduct by suggesting  that the Weekly Standard ought to be  evenhanded.  
Rather, I'm trying, in part, to sketch a  position about how the Weekly 
Standard's article would be that  much stronger by even a throwaway paragraph 
indicating that plagiarism, etc. is  not restricted to a particular ideology.  
Indeed, contrary to Eugene's  position, I think "it does our field and its values" 
absolutely no good to  attempt distinctions, based on some methodology that 
I'm not sure I understand,  to restrict evenhandedness to only certain kinds of 
journalism. Of course,  sometimes time and space might not permit a full 
discussion of the failures on  both sides of the political divide.  And thus, 
sometimes a journal should  print the attack without stating similar crimes by the 
author's own side.   But neither space, nor time, nor the exigencies of 
particular  circumstances, should provide reasons for thinking that evenhandedness 
is  somehow conceptually restricted to certain categories and not others.   
Certainly, it might not be possible to implement evenhandedness in a uniform  
manner in all circumstances.  But that in so way shows that evenhandedness  
should not be the goal or that it is tied only to some categories and not  others.  
The notion that criticizing the author of the Weekly  Standard article is not 
relived of pursuing this goal because he finds  himself in one category and 
not another. The idea that such important journalist  (and more important 
moral) ideals, as evenhandedness, which should be  adhered to generally (though not 
always to the same extent),  represents some sort of '"category error"' is 
true in no form of  reasoning with which I am aware. 
 
        We are talking about public  discourse, which presently is in the 
worst shape it has ever been in my  lifetime. Generally, values and norms for 
such public discourse should  apply to all its forms, though not always to the 
same degree. There's room for  contextual differences and other reasons why, 
like in life generally, we cannot  always live up to the ideals of this 
discourse.  But I find it troubling in  the extreme to reject these ideals for the view 
that one is relived of adhering  to such values as evenhandedness because one 
finds oneself in one category and  not another. 
 
Bobby


Robert Justin Lipkin
Professor of Law
Widener  University School of Law
Delaware
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20040930/8599f6b0/attachment.htm