cc: RE: More on the Murphy allegations of speech-basedplacementonno-fly

[Douglas Edlin]

The reticence of list members concerning this discussion (except in off-list messages) indicates that they are probably getting tired of it.  So I'll put it this way and leave it there.  If Prof. Volokh would like the last word, he's welcome to it.  He is the moderator, after all.  Let's say there are two issues here: (1) is Prof. Murphy on a list generated by a government agency that led to his detainment as a result of his engaging in lawful activity?; (2) is Prof. Murphy relating the details of this incident accurately?  As I indicated in my previous message, the only real answer to the constitutional question depends upon a simple (but unavailable) factual answer to question 1.  In the absence of the actual answer to question 1, can we determine whether it is more likely than not that the answer to question 1 is yes or no based on an evaluation of Prof. Murphy's credibility?  I can see the reasons that list members see value in the consideration of that question.  But in assessing Prof. Murphy's credibility, there are arguments to make, I suppose, and then there are character attacks.  Prof. Volokh would like to characterize Prof. Bernstein's comments as the former; I see them as the latter.  "[S]ummariz[ing] the commenter's view of Prof. Murphy's credibility," as Prof. Volokh puts it, is not making an argument.  And when that "summary" is couched as a personal attack in place of the presentation of evidence or argument, that is (at least to my mind) the definition of an ad hominem statement.  Moreover, and maybe more to the point, who cares if the statements do or do not fit within the philosophical definition?  The point with which I began, and with which I will end, is this:  we should talk with and about one another with more respect and courtesy.  Spirited debate does not (or should not) need to be conducted with Marquess of Queensberry Rules.

D.

On Wednesday, April 11, 2007  5:52 PM, Volokh, Eugene wrote:
>
>Date: Wed, 11 Apr 2007 14:52:04 -0700
>From: Volokh, Eugene
>To: <conlawprof at lists.ucla.edu>
>Subject: RE: More on the Murphy allegations of speech-basedplacementonno-fly
>
> 	Well, let's recap the bidding briefly.  Much here turns on the
>weight to give to the airport clerk's statement -- reported by Prof.
>Murphy -- that people get put on various lists because of their antiwar
>speeches.  I wondered whether the clerk was just passing on an
>unsubstantiated rumor, or perhaps even joking.  Mark Graber suggested
>that we should defer in some measure to Prof. Murphy's judgment about
>whether the clerk he was talking to was credible, certain, and serious,
>because he was there at the time, because he's a "reasonably sober"
>person whose judgment is to be trusted, and was "best placed to make
>[the] evaluation."
>
>	David Bernstein then suggested that "[Prof.] Murphy IS NOT in
>the best position to determine anything," and pointed to evidence that
>David thought suggested some reasons to doubt Prof. Murphy's reliability
>here -- evidence that "he has a grandiose sense of his own importance,"
>coupled with later "commentary on the incident [that] is running into
>UFO sighting testimony."  He finished with a summary of his view of
>Prof. Murphy's credibility, where the who killed JFK or where Jimmy
>Hoffa is buried items appeared.
>
>	My sense is that the "grandiose sense" claim is in no way an ad
>hominem fallacy; rather, it suggests that Prof. Murphy's judgment -- on
>which Mark Graber suggested we rely in evaluating what actually happened
>-- is unreliable.  Likewise, the "UFO sighting" claim is also not an ad
>hominem fallacy; rather, it too suggests that Prof. Murphy's judgment is
>not as sober as Mark Graber suggested.  Recall, that none of this
>touched on, say, arguments about what the First Amendment allows or
>forbids; if it did, then it would be ad hominem, since we can evaluate
>such legal arguments on their own, without regard for the arguer's
>credibility.  But when it comes to whether Prof. Murphy was indeed
>detained based partly on his antiwar speech, Prof. Murphy's credibility
>*is* very much in issue, for precisely the reasons that Mark Graber
>poins to.
>
>	Finally, the JFK/Hoffa comments are likewise not an example of
>the ad hominem fallacy -- they are simply attempts (perhaps too
>hyperbolic) to summarize the commenter's view of Prof. Murphy's
>credibility.  One can fault them for being more harsh or personal than
>is useful for list discussion.  But they related to the credibility of a
>fact witness, credibility that the witness's defenders had earlier
>acknowledged was in issue; that keeps them from being ad hominem
>arguments, it seems to me.
>
>	Eugene
>	
>Douglas Eldin writes:
>
>> 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
>> >>_______________________________________________
>> >>To post, send message to Conlawprof at lists.ucla.edu To subscribe, 
>> >>unsubscribe, change options, or get password, see 
>> >>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>> >>
>> >>Please note that messages sent to this large list cannot be 
>> viewed as 
>> >>private.  Anyone can subscribe to the list and read 
>> messages that are 
>> >>posted; people can read the Web archives; and list members can 
>> >>(rightly or wrongly) forward the messages to others.
>> >>
>> > 
>> > _______________________________________________
>> > To post, send message to Conlawprof at lists.ucla.edu
>> > To subscribe, unsubscribe, change options, or get password, 
>> see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>> > 
>> > Please note that messages sent to this large list cannot be 
>> viewed as private.  Anyone can subscribe to the list and read 
>> messages that are posted; people can read the Web archives; 
>> and list members can (rightly or wrongly) forward the 
>> messages to others.
>> 
>> -- 
>> Douglas E. Edlin
>> Assistant Professor
>> Department of Political Science
>> Dickinson College
>> P.O. Box 1773
>> Carlisle, Pennsylvania 17013
>> 717.245.1388
>> 
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.