More on the Murphy allegations of speech-basedplacementonno-fly list, and on reactions to questio

[Douglas Edlin]

I'm almost finished with this, subject to whatever someone else might 
say.  But I must note that Prof. Volokh's understanding of the ad 
hominem fallacy in relation to this exchange is not mine.  Or maybe I 
should say that I agree with his definition but not his conclusion that 
it is inapplicable here.  To the extent that Prof. Murphy's credibility 
and temperament as a witness to these events are relevant to this 
discussion -- for constitutional law purposes -- I still fail to see how 
claims about his alleged "grandiose sense of his own importance" or "UFO 
sighting" or "who killed JFK" or "where Jimmy Hoffa is buried" have 
anything whatsoever with the argument about government action in 
response to participation at a rally that may be unconstitutional.  At 
the bottom of the well, that claim depends upon whether Prof. Murphy's 
name is on a list to which no one on this list (presumably) has access. 
  The rest is just conversation.

Doug

Volokh, Eugene wrote:
> 	I tend to agree that we should try to tone down the rhetoric
> (though not the substance) of our criticisms of individuals to the
> extent possible, even when the person's personal attributes are relevant
> to his credibility.  
> 
> 	In such cases, criticism of the person's temperament are not "ad
> hominem" in the fallacy sense of the word.  A logically unsound ad
> hominem attack is one that focuses on the arguer rather than the
> argument, but when the argument rests on the arguer's personal
> testimony, his credibility and temperament become part of the issue.
> This is why Mark Graber, for instance, mentioned that his "sense of the
> universe is that this is a person [Prof. Murphy] who is reasonably
> sober"; Prof. Murphy's temperament is indeed relevant here.
> 
> 	Likewise, I think such criticism does have nothing "in the world
> ... to do with constitutional law":  The original post suggested that
> the Administration was engaging in activity that is likely
> unconstitutional; the post relied in part on personal testimony by Prof.
> Murphy; whether or not the Administration is violating constitutional
> law thus turns on Prof. Murphy's account.
> 
> 	Nonetheless, while judgment of Prof. Murphy's temperament is
> relevant and not ad hominem, it seems to me helpful to list discussion
> to present in as mildly as possible, given the need to convey the
> substance.  Unfortunately, this principle has long been ignored on this
> list as to government officials, for instance by me as to Nancy Pelosi.
> I do not regret my harshness towards Pelosi, given the harshness I've
> heard with regard to various Republican government officials (though I
> would welcome a time when everyone on the list toned down the personal
> criticisms generally, and though I would gladly go along with such
> mutual action).  But it does seem to me that if we can maintain this
> principle with regard to those who are below Pelosi's and Bush's rank,
> it would lead to more productive discussion on the list.
> 
> 	Eugene
> 
> 
>>-----Original Message-----
>>From: conlawprof-bounces at lists.ucla.edu 
>>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Douglas Edlin
>>Sent: Wednesday, April 11, 2007 1:27 PM
>>To: David Bernstein
>>Cc: conlawprof at lists.ucla.edu
>>Subject: Re: More on the Murphy allegations of 
>>speech-basedplacementonno-fly list, and on reactions to questio
>>
>>David,
>>
>>I'm just speaking for myself, perhaps, but the fundamental 
>>difference is between criticizing the government and 
>>ridiculing an individual (and professional colleague).  
>>Governments don't have feelings.  And if the best we can do 
>>on this list is resort to ad hominem attacks to try to make 
>>our points, then we are evidently doomed to live in a cable 
>>news world.  I'd like to see us try to do better (and my 
>>earlier point about constitutional law still stands, by the way).
>>
>>Doug
>>
>>David Bernstein wrote:
>>
>>>As opposed, to say, spreading fantastic, unsubstantiated 
>>
>>rumors about 
>>
>>>government conspiracies without a shred of real evidence?
>>>
>>>-----Original Message-----
>>>From: Douglas Edlin [mailto:edlind at dickinson.edu]
>>>Sent: Wednesday, April 11, 2007 3:47 PM
>>>To: David Bernstein
>>>Cc: 'Mark Graber'; conlawprof at lists.ucla.edu
>>>Subject: Re: More on the Murphy allegations of 
>>>speech-basedplacementonno-fly list, and on reactions to questio
>>>
>>>I've never met Prof. Murphy and never expect to (although 
>>
>>his work is, 
>>
>>>of course, sterling).  But I don't need to.  This is, for me, well 
>>>over the line of what is acceptable for civil discourse among any 
>>>group, to say nothing of a group of thoughtful individuals 
>>
>>who might 
>>
>>>reasonably be expected to model civil discourse for others 
>>
>>(their students, at least).
>>
>>>  And could someone please explain what in the world this has to do 
>>>with constitutional law?  I don't mean in some abstract First 
>>>Amendment sense; I mean the text of the message below.  
>>
>>Enough is enough.
>>
>>>Thanks,
>>>
>>>Doug
>>>
>>>David Bernstein wrote:
>>>
>>>
>>>>If you follow Orin Kerr's commentary at Volokh.com, you 
>>
>>will find that
>>
>>>Prof.
>>>
>>>
>>>>Murphy IS NOT in the best position to determine anything, 
>>
>>because he 
>>
>>>>has a grandiose sense of his own importance, and, as Orin 
>>
>>writes, his 
>>
>>>>additional commentary on the incident is running into UFO sighting 
>>>>testimony.  Oh,
>>>
>>>and
>>>
>>>
>>>>rather than his luggage being "lost", it was delayed for a whole few
>>>
>>>hours,
>>>
>>>
>>>>with nothing missing or damaged.  I'd just as soon ask Prof. Murphy 
>>>>who killed JFK or where Jimmy Hoffa is buried as accept his 
>>>>assessments as valid.
>>>>
>>>
>>>
>>>
>>--
>>Douglas E. Edlin
>>Assistant Professor
>>Department of Political Science
>>Dickinson College
>>P.O. Box 1773
>>Carlisle, Pennsylvania 17013
>>717.245.1388
>>_______________________________________________
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> 
> _______________________________________________
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-- 
Douglas E. Edlin
Assistant Professor
Department of Political Science
Dickinson College
P.O. Box 1773
Carlisle, Pennsylvania 17013
717.245.1388