WM
Frank Cross
crossf at mail.utexas.edu
Thu Apr 12 12:28:49 PDT 2007
Well, I think that's kid of odd, but I don't really see how it casts
doubt on his judgment.
He had a dubious view of the Administration and was apparently using
himself as part of an experiment.
But I don't see that this one fact, out of thousands in his life, and
he is known by members of this list, is a reason to demean his judgment.
At 01:44 PM 4/12/2007, Volokh, Eugene wrote:
> Hmm -- the concern is not simply that he is too quick to believe
>the worst about the Administration. Rather, it's that (among other
>things) his experiments with using certain phrases in cell phone
>conversations with fellow academics as a means of alerting the NSA that
>he should be taken off the watch list cast some doubt on Prof. Graber's
>positive evaluation of his judgment.
>
> Eugene
>
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu
> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Frank Cross
> > Sent: Thursday, April 12, 2007 10:46 AM
> > To: Volokh, Eugene; conlawprof at lists.ucla.edu
> > Subject: RE: WM
> >
> >
> > Well, I find it easy to believe that Professor Murphy was too
> > quick to "believe the worst" about the Administration because
> > of his ideological priors. But that tendency of motivated
> > reasoning doesn't really distinguish him from other posters
> > on this list, I don't think, or from people in general. I
> > don't think it much undermines his credibility on the issue
> > of what he was told, as opposed to explaining his lack of
> > skepticism about what he was told.
> >
> >
> > At 12:18 PM 4/12/2007, Volokh, Eugene wrote:
> > > The question is raised by the argument that
> > "Professor Murphy,
> > >of course, is best placed to make that evaluation [about
> > whether the AA
> > >clerk's statement seemed like a joke, seemed authoritative and
> > >knowledgeable, and the like]. Then you have to make some decisions
> > >about his [Prof. Murphy's] capacity to make an evaluation.
> > Perhaps he
> > >is guilty of thinking too highly of himself. But my sense of the
> > >universe is that this is a person who is reasonably sober."
> > >
> > > Here is what makes some, including me, unsure of Prof.
> > >Murphy's sobriety (naturally, only in the figurative sense).
> > This is
> > >from an interview with Prof. Murphy in Wired,
> > >http://blog.wired.com/27bstroke6/2007/04/professor_bashi.html:
> > >
> > > "I flew back without having trouble getting a boarding pass.
> > >But when I was in Princeton, I had breakfast with former
> > student -- a
> > >Republican congressman, and called a number of friends in my
> > academic
> > >life, and the NSA monitors a lot of phone calls, especially
> > cell phone
> > >calls, so I tried to use the words that might trip their
> > computers like
> > >starting calls by saying, 'I'm on the terrorist watch list'
> > and 'I've
> > >been criticizing George Bush' and if indeed these things are
> > monitored,
> > >maybe they heard this, I don't know."
> > >
> > > Maybe I'm wrong, but responding to being put on a
> > threat list
> > >by saying in one's phone calls "I'm on the terrorist watch list" and
> > >"I've been criticizing George Bush" -- on the hope that
> > maybe the NSA
> > >will monitor the phone calls and will respond to such statements
> > >(remember, not statements to government officials, but just
> > statements
> > >to one's academic friends) by removing one from a watch list
> > -- strikes
> > >me as behavior that would cast some doubt on the person's judgment.
> > >Naturally, all of us are completely entitled to engage in
> > such behavior.
> > >But if I engaged in it, I would think that it would undermine some
> > >people's estimate of my sobriety, and who should thus be
> > trusted about
> > >subtle cues he picked up in conversation.
> > >
> > > It also seems to me that relying on an AA agent's testimony
> > >about how TSA puts people on their watch lists is itself somewhat
> > >questionable: If the TSA did engage in patently unconstitutional
> > >retaliation based on someone's exercise of his rights to
> > exercise the
> > >Administration, I would think that they wouldn't tell the AA agent.
> > >Combining this willingness with the "trip the NSA's
> > computers" tactic,
> > >and add to this another part of the interview, which strikes
> > me as at
> > >least modestly implausible ("One friend who called me said,
> > 'I got put
> > >on, too.' He used to be [a] fairly high-powered mover and
> > shaker. 'How
> > >did you get off?,' I asked. 'I'm partner in large law firm
> > and I told
> > >my secretary to get me off,' he said. 'And I've been able to fly
> > >since.'"), and it seems to me sensible to be somewhat
> > skeptical of his judgment.
> > >
> > > Eugene
> > >
> > > > -----Original Message-----
> > > > From: Frank Cross [mailto:crossf at mail.utexas.edu]
> > > > Sent: Thursday, April 12, 2007 10:07 AM
> > > > To: Volokh, Eugene; conlawprof at lists.ucla.edu
> > > > Subject: RE: WM
> > > >
> > > >
> > > > I missed the part about the reasons why Professor Murphy is not a
> > > > credible witness about what he was told by the clerk.
> > > >
> > > > At 11:34 AM 4/12/2007, Volokh, Eugene wrote:
> > > > > I recognize that the questioning of Prof. Murphy's
> > > > credibility
> > > > >on this would be understandably annoying to his friends; and as
> > > > >I've noted before, it seems to me that any such questioning is
> > > > best done in
> > > > >as polite and low-key way as possible.
> > > > >
> > > > > Yet it's hard for me to see how the posts about
> > > > this have had
> > > > >"very little to do with constitutional law as such." Prof.
> > > > Murphy, as
> > > > >I understand it, is essentially alleging a constitutional
> > > > violation by
> > > > >the Administration. ("[T]he problem does pertain to basic
> > > > >constitutional issues with which all of us, of whatever
> > political
> > > > >persuasion, are concerned in our teaching and scholarship.")
> > > > To figure
> > > > >out whether there is such a constitutional violation, we
> > > > have to look
> > > > >at the evidence.
> > > > >
> > > > > There are two pieces of evidence: (1) Prof.
> > Murphy has
> > > > >spoken out against the Administration, was delayed for some
> > > > TSA-related
> > > > >reasons for 10-20 minutes while getting on an airplane,
> > and had his
> > > > >luggage lost (which is to say delayed by several hours) on
> > > > the return
> > > > >flight, on which he was not delayed while boarding. (2) A
> > > > clerk for
> > > > >American Airlines asked "Have you been in any peace marches?
> > > > We ban a
> > > > >lot of people from flying because of that."
> > > > >
> > > > > Now as to #1, Prof. Murphy's credibility would not
> > > > be at all
> > > > >relevant. But if the only evidence Prof. Murphy adduced was
> > > > #1, then
> > > > >that would be pretty weak evidence of "basic constitutional"
> > > > problems.
> > > > >The linchpin of the alleged constitutional problems was #2.
> > > > >
> > > > > The trouble is that #2 is itself fairly weak
> > > > evidence, because
> > > > >even if such an unconstitutional policy existed, it's hard
> > > > to see how
> > > > >an AA clerk would be told about it, or even would pick
> > up reliable
> > > > >rumor about it. It therefore becomes relevant, as I
> > > > suggested, whether
> > > > >the clerk may have been talking through his hat, or joking,
> > > > or some such.
> > > > >
> > > > > Prof. Graber -- one of the people who helped
> > spread Prof.
> > > > >Murphy's account -- then pointed to Prof. Murphy's credibility,
> > > > >presumably because he shares my view that Prof. Murphy's
> > > > credibility is
> > > > >relevant to determining whether there is in fact a "basic
> > > > >constitutional issue[]" implicated here. He therefore
> > > > wrote, "To some
> > > > >extent, this is an instance of 'you had to be there.' So a
> > > > good deal
> > > > >of the concern is that, at least in my opinion, this is a
> > > > person with
> > > > >very good judgment who is not likely to fly off the handle. I
> > > > >think the story plays out somewhat differently with a different
> > > > person." In
> > > > >a later post, he wrote, "Professor Murphy, of course, is
> > > > best placed to
> > > > >make that evaluation [about whether the AA clerk's
> > statement seemed
> > > > >like a joke, seemed authoritative and knowledgeable, and
> > the like].
> > > > >Then you have to make some decisions about his [Prof. Murphy's]
> > > > >capacity to make an evaluation. Perhaps he is guilty of
> > > > thinking too highly of himself.
> > > > >But my sense of the universe is that this is a person who is
> > > > reasonably
> > > > >sober."
> > > > >
> > > > > Now maybe Prof. Graber was mistaken in assuming
> > that Prof.
> > > > >Murphy's credibility is relevant to whether there is a
> > > > constitutional
> > > > >problem here. But I'm inclined to think that he was right:
> > > > Given that
> > > > >so much turns on Prof. Murphy's account of what he heard
> > from the
> > > > >AA clerk, his -- a percipient witness's -- credibility and
> > > > temperament are
> > > > >indeed quite relevant. And if that's so, it seems to me
> > > > that evidence
> > > > >that Prof. Murphy might not be an especially credible witness on
> > > > >the subject is likewise relevant, and relevant again to the
> > > > >*constitutional* question. Nor is such evidence ad
> > hominem, a term
> > > > >that as I understand it is a pejorative for an attempt to
> > > > >*fallaciously* focus on an arguer's identity when one should
> > > > just evaluate the self-contained argument.
> > > > >Reasonably focusing on a witness's identity, temperament, and
> > > > >credibility in trying to evaluate the witness's testimony is not
> > > > >generally seen as ad hominem, it seems to me.
> > > > >
> > > > > This having been said, I will say again that such
> > > > comments on
> > > > >people's credibility ought to be done as politely as possible.
> > > > >
> > > > > But if someone is going to allege unconstitutional
> > > > behavior,
> > > > >based on his personal observations of some incident, I don't
> > > > see how we
> > > > >can rule out of bounds inquiry into whether his observations
> > > > are to be
> > > > >trusted.
> > > > >
> > > > > Eugene
> > > > >
> > > > >
> > > > >________________________________
> > > > >
> > > > > From: conlawprof-bounces at lists.ucla.edu
> > > > >[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Donald P.
> > > > >Kommers
> > > > > Sent: Thursday, April 12, 2007 5:56 AM
> > > > > To: conlawprof at lists.ucla.edu
> > > > > Subject: WM
> > > > >
> > > > >
> > > > > Walter M and I have known each other since the
> > > > middle of the
> > > > >last century and I was one of the persons who encourage
> > him to make
> > > > >public his airport experience. But he might have chosen a
> > > > forum other
> > > > >than this list because most of the comments have very little
> > > > to do with
> > > > >constitutional law as such. Personal expressions of
> > outrage or ad
> > > > >hominem remarks should be reserved for off-list communications.
> > > > >
> > > > > dpk
> > > > >
> > > > >
> > > > > Donald P. Kommers
> > > > > Joseph and Elizabeth Robbie Professor of Political
> > > > > Science and Professor of Law,
> > > > > Notre Dame Law School
> > > > > Notre Dame, Indiana 46556-0780
> > > > > Tel: (574) 631-6304
> > > > > Fax: (574 631-4197
> > > > > Home fax: (574) 243-0264
> > > > > Home phone: (574-271-9315
> > > > > kommers.1 at nd.edu
> > > > >
> > http://www.nd.edu/~ndlaw/faculty/facultypages/kommers.html
> > > > >
> > > > >_______________________________________________
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