Constitutional law professors and our critics
RJLipkin at aol.com
RJLipkin at aol.com
Thu Sep 30 12:53:14 PDT 2004
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
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.
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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