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December 26, 2005

The Authorial Morals Police

In the legal blogosphere's subculture there's been an interesting discussion revolving around Yale Law Review's publication of a law review article (Control Mechanisms for Quasipublic Executives: The Intersection of Corporate and Constitutional Law) by Kiwi Alejandro Danao Camara. Camara is the youngest person to ever graduate from Harvard Law School (in 2004) and is now an Olin Fellow in Law & Economics at Stanford.

But Camara is also embroiled in a heated racial controversy. While at Harvard he posted a property outline on an on-line outline bank. The outline warned that it might "contain racially offensive shorthand." Here's how blackprof described it:

Here is what he said when referring to Shelley v. Kraemer (a seminal Property case on racially restrictive covenants):

"Nigs buy land with no nig covenant; Q: Enforceable?"

When asked to explain his comment Mr. Camara remarked that it was a "mistake and a miscalculation." Asked if he would use such racial slurs in the future, he commented: "I will make a much more conscious attempt than I have made not to do so. I can't guarantee it."

Since then numerous legal websites - far more than I can list here - have dissected the controversy. But there was one post in particular which caught my eye. Prof. Eugene Volokh considers whether a law review should publish an article by a professor who has committed adultery with a student. He concludes:
Bad behavior? You bet. Does it reveal a character defect? Sure....But this has zilch to do with the important question, which is: Does the law review article advance our understanding of law? They're not giving the author a decency award, they're publishing an article for the benefit of readers and of the profession. The same goes with other forms of misconduct, whether or not race is involved.
In academia's Ivory Tower racism is one of the most horrendous moral flaws. But many people have a long list of equally bad misconduct. Will these beliefs or actions also bar publication into a law review, and what moral standard governs? In the end I think Volokh has the right approach - judge the article on its legal strength and not the moral attributes of the author.

Posted by Joshua Claybourn at December 26, 2005 12:58 AM

Comments

Racism isn't just a moral flaw (or a class marker), it's also an intellectual failure--and that is a reason for academics to view it as a warning sign in their peers.

Posted by: Paul at December 26, 2005 11:51 AM | permalink

Based on that viewpoint Paul, most of the entire cannon of western cultural throught would have to be banished because plenty of its leading lights (Mencken in the 20th Century for example) were likely bigots of some form or another. Among academics today, one can suspect there are plenty of racists, anti-semites and folks who like to make fun of Asians; intellectuals are no less flawed than the rest of humanity and because of their propensity for living in their heads instead of in the real world (where they would learn self-censorship the rough way), probably even more flawed.

The reality is that one needs a standard of judgement for measuring intellectuals that neither changes with the moral fashions of the time and is consistent over centuries. If Camara is to be judged for his apparent bigotry, then such a standard should be applied both to his predecessors and those that succeed him. But since what is considered racist today may end up being fashionably acceptable in the next century -- hopefully not -- doing so just creates inconsistency in judgement. Sticking to strength of argument and whether it holds up to scrutiny over time, on the other hand, is far more consistent.

Not that Camara's apparent bigotry is acceptable or excusable -- he'd best stay away from yours truly at a soiree; this Black man will give him the business -- but I'm of the view that one can separate the genius of a person from the very human flaws they have. So Camara's work should be judged on the strength of his arguments. That's just being professional. But Camara also deserves to get ripped apart for simply being stupid enough to say in public what he should have kept in the dark recesses of his own mind.

Posted by: RiShawn Biddle at December 27, 2005 08:33 AM | permalink

RiShawn--That argument doesn't work, because judging people by contemporary standards isn't a fallacy when the people you're talking about are themselves contemporary.

(And Mencken et al were indeed so bigoted as to make their writings on race useless, except as evidence of the pervasiveness of prejudice.)

Posted by: Paul at December 27, 2005 11:22 AM | permalink

I'm not sure I understand the argument. Maybe I need to read some of the links but I don't see the immediate connection between the use of a racial epithet and proof of racism on the part of the user.

In fact, I often see exactly the opposite as those who would pretend that racism doesn't exist are often both those who sublimate their own racism and those who most vocally object to the use of epithets.

On the other hand, the judicial use of racial epithets often turns out to be one of the most effective weapons against racism (see, for example, the comedy of Richard Pryor, Chris Rock, Sam Kinison, etc.).

Again, perhaps I need to read more, but it seems Mr. Camara made a most succinct summary of racial redlining. I don't see how a more politically-correct "African Americans buy land with no African-American covenant; Q: Enforceable?" would have been an improvement.

greg

Posted by: Gregory Travis at December 27, 2005 12:02 PM | permalink

But measuring contemporaries by contemporary standards is useless in the long run because we are not simply judging for today, but for the future as well. To apply a standard to a Camara that would have never been applied to Mencken and may not be applied to someone else in the future simply means you're applying contemporary fashions, not standards that can stand the test of time. And unlike you, the long run is all I really care about when dealing with intellectuals because I can't apply the fashions of the past to my contemporaries or those who come later on.

Sorry Paul, but when it comes to judgements, your argument for using contemporary fashion -- which it is -- for judging intellectuals is about as valid as using time-tested standards to compare the music of rock group U2 to that of jazz impressario Louis Jordan.

Posted by: RiShawn Biddle at December 27, 2005 05:30 PM | permalink

When I was preparing for admission to the State Bar of Texas, getting references and reading up on the Bar's requirements for a person being of good moral character to be admitted to the Bar, I soon realized that they were using "good moral character" in a much narrower way than I assumed. I can see the problems inherent in using a broader definition that I incorrectly assumed was the norm.

For instance, outside of illegality, many of the standard things we might consider in assessing whether a person is of good moral character are irrelevant to bar admission. The bar focuses on illegal acts period, but acts of dishonesty and immorality only if there is a showing that such dishonesty or immorality would adversely affect the applicants practice of law. Thus, adultery, promiscuity, alcoholism, racism, sexism, homophobia (I'm not referring to regarding homosexuality as a sin as being homophobic), crudeness or lewdness in or out of "office" settings, etc. are irrelevant in assessing an attorney's moral character unless those matters can be shown as hindering the attorney's ability to carry out his/her professional and ethical duties as a lawyer.

Thus it is that several attorneys, including one from Indiana, I think, have been involved in the white "Christian" identity movement. By my reckoning, such folks are not of good moral character by the common definition. However, I can also see that if they can perform professionally despite these character defects, it would be a slippery slope to exclude such folks from the practice of law without a showing that their views or practices interfere with the oath they took when sworn in as attorneys.

Posted by: Joel Thomas at December 27, 2005 05:55 PM | permalink

RiShawn, it's as ridiculous to argue that contemporary rejections of racism are contemporary fashions as to believe that dismissing Aristotle's writings on the natural sciences requires us to junk his ethical works. (We may decide to throw both overboard, at least as guides to our knowledge and behavior, but one does not lead to the other.) Racism and race prejudices more generally, being predicated on the notion that there are inherent differences among the races (and that the "races" can be delimited with any precision), are claims more on the level of Ptolemaic astronomy than of aesthetic judgment.

It is true that any yardstick used today may yield judgments at odds with those reached in the future; such is the nature of progress, or at least paradigmatic succession. But that doesn't mean that we can't look for some sort of set of intellectual "best practices," nor does it mean that we should refuse to judge the thinkers of the past (in certain ways, at least) because of our (presumably greater) present knowledge.

We can't disprove Edmund Burke, in other words, when he advocates a constitutional monarchy or argues for a certain definition of the "sublime"; but we can certainly dispute his treatment of monetary economics in Reflections on the Revolution in France. (Even better, we can't disprove Ruskin, but we can refute Priestley.)

Posted by: Paul at December 27, 2005 08:54 PM | permalink

"So Camara's work should be judged on the strength of his arguments. That's just being professional. But Camara also deserves to get ripped apart for simply being stupid enough to say in public what he should have kept in the dark recesses of his own mind."

Let me note that my comment supra is being misinterpreted: I don't know, and plan not to find out, whether Camara's work is useful to the discipline or not. But my comment about a "warning sign" was meant to indicate that academics should, in fact, have reason to be extra scrupulous when reading and using his work--not that they should throw out his work in toto. (If we junked academics' work because they were crazy, think of all the Linus Pauling papers we would lose; and if because they were immoral, Feynman would disappear without a trace...)

Posted by: Paul at December 27, 2005 08:57 PM | permalink

We'll have to agree to disagree Paul because you seem to be missing the point by a country mile. One can dismiss Aristotle's works on nature because it is being judged on a time-tested standard -- whether it stands up to long-term scientific scrutiny. The same for Edmund Burke on monetary policy -- the standard is whether it actually works according to empirical measurements.

But race is a fashion issue. Remember that racism didn't actually exist in a defineable sense thousands of years ago; Egypt was a multicultural society and one can say that as well about Rome, where multitudes of different cultures were integrated successfully into the Roman military. Racism is in many ways a European development that came about with the rise of exploration of Marco Polo and Christopher Columbus; today it's absolutely unfashionable to even acknowledge race unless you are of the minority racial group and using that identity for social and political gain. Who knows whether racism or racial identity as concepts will even exist tomorrow.

What I'm arguing is the measurement of one's work based on time-tested standards, including the most important one -- does it stand up to scrutiny from peers current and future in the long run. You on the other hand are arguing something a lot hazier, something which can lead to plenty of works being tossed out because of the personal views of those who created the works and formulated the idea.

Sorry Paul, you're argument is truly ridiculous.

Posted by: RiShawn Biddle at December 27, 2005 09:35 PM | permalink

Many things (nationalism, fascism, Bushisms) did not exist thousands of years ago, but that doesn't make them fads. And by the same standards of evidence you're implying exist (itself a difficult philosophical problem, but one I'm pretty well in sympathy with), those who believe in racist views are not merely being fashionable, but--at this point in history--are almost being wilfully ignorant of what the experts are saying (and their views on the subject, in turn, are not faddish, but are pretty hard-won). That doesn't mean that one can't acknowledge "race" as a societally constructed, affective concept even while denying it any grounding in biology, but this is a very different sort of idea than "All Xmen do X because they're Xmen" (and even further from "All Ymen are superior to all Xmen."). And it is that latter idea, the kernel (along with the idea that "Xmen" exist naturally) of racism, that I am claiming is subject to the same scrutiny as Burke's economics and Aristotle's physics--and that it has been found wanting, for the same reason that geocentrism has. The specific form of the 'fashion' may be novel, but the basic fallacy isn't--the ancient Greeks' writings on the barbarians or the Romans' squishy ethnography is testament to that.

And, yes, by my standard, a great many works would be tossed out--but how does this differ from yours? The scrutiny you speak of, if it has any content at all, must provide a way for us to distinguish whether various beliefs are worth retaining as guides to behavior and ways of knowing; if not, then it merely provides distinctions without differences and, as such, is an positive obstacle to making sense of the world. (The same artifacts I'd toss out as guides to present-day action, however, I'd retain as evidence of past beliefs and explanations of historical behavior.)

In some areas, we can be pretty confident that our knowledge allow us to make what superificially seem like sweeping statements--but which are, in reality, the consequence of replacing ignorance with data. (Biologists today know not only more than they did ten years ago, they likely have learned more in the past decade than European science learned during the whole period of the Middle Ages.) This isn't a 'hazy' judgment, and it allows us to evaluate statements now, instead of centuries from now (which is the only standard that your examples heretofore have allowed for--a standard itself ahistorical, as a great many thinkers in antiquity, in Europe and elsewhere, would have supposed that our descendants centuries hence would be less intelligent than those of the present day). Granted, as good little Popperians we should allow for doubt as we move forward, but that doesn't mean that faulty hypotheses should be tested again and again--the principle of estoppel doesn't apply in the law alone.

To return to the root of the thread: my original post was meant to suggest that the original post, by lumping racial prejudices with adultery in a category of failings labeled "moral," had neglected the distinction between cheating on one's wife and believing, against all evidence, that Asians are smarter than Whites (or whatever). There is an intellectual component to racism and prejudice, as there is not to simple adultery, whether that component acts through commission (the active belief in innate and important racial differences) or omission (garden-variety ignorance). Camara may not be a racist (it is difficult to believe that naive racism would still exist in someone with his intelligence), and may in fact be guilty only of writing something stupid, but someone who writes in such shorthand is more likely to harbor actual racial prejudice than someone who does not, and that is a reason for his academic peers to be more cautious when examining his work than they would otherwise be. The digression this thread has taken has, probably, obscured this point.

Posted by: Paul at December 27, 2005 10:34 PM | permalink

Paul,

1.) A person's belief is an attribute of their personhood.

2.) Racists view a group of humans with bias because of an attribute of thier personhood.

3.) You view racists with bias because of an attribute of thier personhood.

I agree that one should not dismiss a group of people based on a few attributes of their personhood. Do you?

Posted by: Dave S. at December 27, 2005 11:49 PM | permalink

Dave, that's one of the weakest arguments you could put forward. By that standard, it's impossible for us to make any normative judgments of anyone else's behavior, much less decide that other beliefs are incorrect and that, therefore, those who hold them are in the wrong on that issue. By your example, if I defined lying, raping, and murdering as attributes of personhood, I could just as easily argue that it is wrong to judge serial liars, rapists, or murderers.

I am entirely comfortable with judging racists as racists, while remembering that there have been a great many racists who otherwise were perfectly decent people. There's a difference between the racists' belief that Xmen are inherently, unchangeably X (and therefore are unalterably superior or inferior to Y) and the belief that racism and race prejudice (which are both consequences of thought, and hence eminently changeable) are not only incorrect but harmful (to racists and bigots themselves and--what is more important--to others).

Posted by: Paul at December 28, 2005 08:21 AM | permalink

And, yes, by my standard, a great many works would be tossed out--but how does this differ from yours?

The difference would be that one woul be based on a rigid, objective standard that takes no measure of the fashions of the moment. And while you may argue that racism isn't some simple fashion, you didn't refute my point that racial bigotry is a fairly new concept that could just as easily not be a matter of any consideration -- or of major consideration -- in the future. The point is that does the work stand the test of time; does today's evidence actually refute the points of past works or not. And so forth.

Racism, as with much that can be called tribalism, is subjective, especially as more obvious forms of such bigotry are being knocked out of fashion while more subtle examples may still remain. Considering the difficulties of debating subtle bigotries, do we want to add such subjective thinking to the list of measurements we should use to measure either contemporaries or those of the past or future?

Beyond that, your approach is hazy for one more reason: Where does the slippery slope end? If a work by Camara is tainted because he is an apparent bigot, what would you say about the judicial opinions of, say, Hugo Black, who was a member of the Klan before joining the Supreme Court and proving to be one of its more liberal members?

Let's tate it further: The best example lies with a question: "What would you do with Werner Von Braun?" Not meaningless at all. Among his highlights was the fashioning of the modern space program and the pioneering of rockets, including the V-2 and the Saturn V that helped send man to the moon. The lowlights? He willingly aided and abetted a Nazi regime that also supplied him slave labor to help develop his projects.

So the question remains "what do you do with Werner Von Braun" or more importantly, "do you toss out the beneficial works of this man because of the means by which the developments occurred?" This isn't exactly an idle question, Paul, but one that gets to the heart of the argument. After all, one can argue that behind many a great invention or process or idea lies some shattered lives, a myriad crimes and some Machavallian intrigue.

More importantly, this question applies to numerous inventions and ideas that have improved the world measurably for every man, woman and child. The process for cold water rescues, for example, was pioneered by the Nazis who used Jews as live test dummies. Aristotle wrote much of his work while in the employ of monarchs who enslaved whole peoples. The Mona Lisa was painted by Leonardo Da Vinci, a genius who aided more than a few monarchs in aggressive wars.

One could go on ad infinitum, but the point is this: There are problems with subjective and hazy approaches that include 'soft' qualifications such as someone's penchant for racial bigotry. Objective, hard measurements on the other hand -- including strength of argument in the case of legal scholars -- actually get to the heart of the matter.

You can argue all around my point, but you still aren't making a compelling argument.

Posted by: RiShawn Biddle at December 28, 2005 01:33 PM | permalink

Note that this doesn't mean that I think those men are admirable; judging the men themselves on their own behaviors is perfectly reasonable as a historical exercise. Nor should they be admired; but then I don't believe in making heroes out of mere men in the first place. What I'm saying is that there is a way of tossing out the bathwater without tossing out the baby. Paul's position actually argues for tossing both out and thus, is not only unreasonable, but not sophisticated in terms of looking at the world for what it is -- as well as what we would want it to be.

Posted by: RiShawn Biddle at December 28, 2005 01:38 PM | permalink

The Werner Von Braun argument is not an objection to my stance, inasmuch as I've distinguished between subjective discourse (like aesthetics and moral values) and objective contentions (the natural sciences, economics, historical facts). The question, indeed, was not the significance of his work, but whether he should have been punished for as a war criminal (for his role in the deaths of thousands and the creation of "the widows and orphans of old London town") or spared for reasons of state. This isn't merely a question of tossing out his achievements because of his membership in a despicable party, but rather one of state policy. As such, the question is a far more complicated one--and one which should caution us against wanting simplistic moral guidelines: Is the precedent of the Von Braun case that anything is permissible as long as you're a skilled technician? In that case, would Craig Venter be spared prison if he shot up a kindergarten?

Nor does the source of Aristotle's paycheck matter, because you have consistently misunderstood my point, which is that racism and race prejudice are failings with an intellectual (and thus relatively objective) component, not merely a moral (and far more subjective) dimension. Racial bigotry is less forgivable now than even half a century ago, because the arguments against prejudices and racial systematizations are both well known and widely accessible.

In other words, although I regard racial bigotry as leading to undesirable moral consequences (the differential treatment of individuals as a result of a false belief), I also reject it intellectually on its own terms (i.e., the contention of inherent and significant differences among well-defined races), and regard with suspicion any individual who, in the developed world of the early 21st century, has not troubled themselves to challenge such a dubious hypothesis. Especially in its strongest form of racism, racial bigotry does not represent itself or regard itself as subjective (which is why the Nazis' racial classifications were so important to them).

For your part, your reliance on an "objective," "time-tested" standard presumes the existence of a neutral, objective plane (something everyone believes they have, but thinks nobody else does) as well as the notion that the test of time is a test of truth. It is not; lies and idiocy have withstood time for longer than many truths, which is why a great many people believe in naive creationism instead of neo-Darwinian natural selection. The former is older than the latter, but the test of time returned a false positive in this case. (And given the level of subjectivity in a great amount of academic work--political theory, say, or historical interpretation--it is similarly false to conclude that peer review will quickly or indeed even slowly out a fraud; that Freud persisted for three-quarters of a century, and Marx for longer, should be warning enough about faith in academic disputation as a truth-discovering mechanism outside of the physical sciences.)

To return to the Camara case, I have only written that academics should take racism as a "warning sign" in their peers, not a harmless eccentricity or an irrelevant moral failing like adultery. And this point is, on the intellectual plane at least, purely an intellectual one, because it hints at a deep ignorance of an important topic. (There is a far more interesting potential debate here about the greater responsibility of an academic, as opposed to an independent intellectual; the former has responsibility for the maintainence of the academy itself, including evaluating his peers and students and participating in the governance of his university; for those reasons, we may indeed want to keep racists out of the faculty, rather as we would keep tax cheats out of the IRS. But this is a different argument.)

Posted by: Paul at December 28, 2005 01:57 PM | permalink

"What I'm saying is that there is a way of tossing out the bathwater without tossing out the baby. Paul's position actually argues for tossing both out and thus, is not only unreasonable, but not sophisticated in terms of looking at the world for what it is -- as well as what we would want it to be."

I must say I don't understand Biddle's argument against my position; I would toss out both Plato's argument for slavery and Aristotle's arguments in physics, but for vastly different reasons--the latter because it's not true, the former because I don't believe it. But there is a reason why philosophy courses can still use Plato as an example of great thought, whereas the study of Aristotelian natural sciences will reward few but the historian of science. I have been consistent in arguing for the existence of at least two magisteria in knowledge, and that is why I don't believe in discarding the Saturn V (er, although NASA did accidentally toss the blueprints) even though I think WVB's collaboration with Hitler's regime was despicable. (On the issue of Holocaust science, however, I think there are firm reasons, ethically and practically, to disregard such findings.)

Posted by: Paul at December 28, 2005 02:01 PM | permalink

And to forestall a pedantic objection: When I say I would "toss out" Plato's argument for slavery, I don't mean that I would burn every copy and forbid its teaching; I simply mean that I would not rely on it as a guide for my actions or knowledge, a position I've made clear several times in the course of this increasingly tiresome discussion.

Posted by: Paul at December 28, 2005 02:03 PM | permalink

Well if you find the debate tiresome Paul, you can actually stop arguing. Either way, we're at the point of arguing around each other. You're going to stick to your guns and I will to mine. But once again, if you're tired of a debate, then get out of the arena.

Anyhow, while you argue that Aristotle's source of paycheck doesn't matter to you, others would argue quite differently. They would say, legitimately that it was blood money, especially if you consider Philip of Macedonia and his son, Alexander the Great. Same with Von Braun, same with a great many other leading lights.

You can argue otherwise, but people have a tendency to take things to its most logical conclusion. Such arguments have already gone on in the case of the Von Brauns and other German scientists brought to the U.S. after World War II. So it's quite possible, likely even, that such a soft subjective approach will end up being used to cast a wide net over many works than have brought benefits to mankind.

If you don't understand my position, Paul, well that's because you're really don't care to understand it. On the other hand, I understand your point, but knowledge and experience as someone who's been around a little longer than you have been just gives me perspective that time can only give.

Posted by: RiShawn Biddle at December 28, 2005 02:27 PM | permalink

Paul,

I take it your primary objection to my argument is 1.), where I define a person's beliefs as part of his personhood. I agree, that this is a debatable point and is not immediately obvious.

However, I think that the fact that this point is debatable casts doubt on your assertations that racism is an objective technical error and not an error of subjective judgement. In the same way that I subjectivly assigned beliefs to a person's attributes, you have also assigned race.

If racism is an objective error, then it would be possible to lay out your premises and their conclusion would be unavoidable.

Posted by: Dave S. at December 31, 2005 02:02 PM | permalink

Of course, by that standard, almost everything -- certainly the vast majority of science -- is 'subjective'.

It seems to me rather bizarre that several readers cannot grasp Paul's very basic distinction that he's invoking between the objective and the subjective.

Posted by: philosopher at January 1, 2006 12:41 PM | permalink

almost everything -- certainly the vast majority of science -- is 'subjective'.

I am surprised that this is bizarre. Science is nothing more than people trying to account for various stories about how the world works. Why is it strange that most of knowledge in the category of science is subjective?

Posted by: Dave S. at January 1, 2006 09:41 PM | permalink

Look, you can fart around with the language all you want, and use "objective", "subjective", and/or "there's glory for you" in whatever way you want. But it's clear that Paul's distinction is one that puts science and the like on one side (which he, in accord with completely standard usage, labels "objective"), and value judgments & judgments of taste, etc., on the other (ditto, "subjective"). If you want to address his point, you need to use his distinction, or argue (not just blindly assert) that it is an ill-founded one. As it is, with your special meanings you're assigning to those words, you're just wasting his time (and indeed the time of the 99% of us who use the word in its standard way).

Posted by: philosopher at January 1, 2006 10:43 PM | permalink

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