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Tuesday, September 06, 2005

Someone should tip Elena Kagan off about message control

Thank goodness there's at least some intellectual diversity at Harvard.  Compare Alan Dershowitz: Telling the Truth About Chief Justice Rehnquist with this paean by Larry Tribe in today's NYT.  (Hat tip about the Dersh piece to Brian Leiter.)

Posted by Administrators on September 6, 2005 at 12:02 PM in Dan Markel | Permalink

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» Rib Cracker from The Moderate Voice
Harvard Law Professor Alan Dershowitz turns both barrels on the deceased Chief Justice. I'm not sure I've ever seen such a scathing indictment of a public... [Read More]

Tracked on Sep 6, 2005 7:00:33 PM

Comments

When is the last time you've seen right-wing bloggers take on police misconduct (can we say media silence re: police looting?)

I did, on September 1.

Still others, while chronicling the high cost's of America's litigation system won't highly [sic] how defense misconduct raises those costs.

I don't know who you're talking about; it certainly isn't me:UCL is missing the point that the insurance company (who I also criticize above) took a hard line because of the current legal system: it knew that it would be unprofitable for the aggrieved plaintiff to sue. Because there is no "loser pays" rule, and because litigation is expensive, the insurance company could profitably take an unreasonable position. [...]

Only in the case where a plaintiffs' law firm is also willing to behave unprofitably will the insurance company suffer consequences. If the plaintiff fights (and finds someone willing to spend $25,000 of time on her behalf), the insurance company loses $25,000 [...]; if the plaintiff can't fight, the insurance company saves $800 with the $400 settlement offer. But if 49 times out of 50, the plaintiff takes the settlement offer, the insurance company is way ahead. (Meanwhile, if the law firm fights the settlement offer one time out of fifty, it will quickly go broke.) That's not an efficient result. That's not a just result. And it's not an inevitable result: it's solely an artifact of current flaws in the system. The ironic result is that litigation is so costly and inefficient that it's cheaper for the plaintiffs' law firm to cut a check for the aggrieved plaintiff than to fight on her behalf. That hardly means that I am "encouraging" law firms to cut checks because I'm pointing out the ironies of the larger systemic problem.

Posted by: Ted | Sep 7, 2005 5:23:46 PM

If a professor's view of the filibuster changes based on whether there is a Republican or Democratic in office, then there's a good chance that the professor is a hack.

Erwin Chemerinsky, for example? Denning responds to Chemerinsky's assertion that the filibuster should be used to reject nominees he dislikes by quoting a 1997 article co-written by Chemerinsky arguing that the filibuster is "simply a minority veto.... It is not part of a long Senate tradition and history alone cannot justify it." Denning drops a hammer-blow coup de grace - "what changed your mind?" - leaving Chemerinsky to stumble and blithely change the subject to the nuclear option. Hack.

Posted by: Simon | Sep 6, 2005 11:34:12 PM

I disagree with Dersh, for what it is worth, but I don't entirely blame him for holding the view. Just as long as it is applied even-handedly to liberal giants too.

That's not a defintion, but it's a gauge I use in my hack-o-meter. If Prof. Dershowitz applies his great skill and talents attacking liberal as well as conservative targets, then he's less likely a party-hack. If, instead, his targets are almost always conservatives, then it's more likely he's a hack.

If a professor's view of the filibuster changes based on whether there is a Republican or Democratic in office, then there's a good chance that the professor is a hack. If a bunch of law professors sign an amicus brief in the FAIR litigation that contributes nothing to the Court's understanding of the issues (contrary to the Court's rules), then it's likely those professors are hacks. (Look at us, we support the Solomon Amendment.)

In addition to party-hacks, there are, of course, issue hacks. A lot of people, e.g., will only highlight prosecutorial or police wrongdoing. When is the last time you saw TalkLeft praise a prosecutor? When is the last time you've seen right-wing bloggers take on police misconduct (can we say media silence re: police looting?) Other hacks, say, proponents of a loser-pay and mandatory-arbitration system, when given proof that those systems have flaws (by losing before an NASD panel, say), will ignore those flaws, and delete comments pointing out the incongrutity between said hacks views and experience.

Still others, while chronicling the high cost's of America's litigation system won't highly how defense misconduct raises those costs. (Where are the posts about frivolous Class Action Fairness Act removal motions?)

Most of us are hacks, though we put lipstick on our hackery. "I can't address this issue, on collegiality grounds." Or, "The MSM has already biased jurors against the rights of the accused. Therefore, it's my duty to present the contrary view." It's all hackery, though Socrates would say I've merely given examples of it, and still not defined my terms. Of course, Socrates wasn't a hack. And we know what happened to him.

Posted by: Mike | Sep 6, 2005 8:56:28 PM

Paul,

I agree with you that distinguishing hacks from scholars (the relevant opposite in this framework, right) is a pretty subjective inquiry. Something like calling BS as you say; or telling activist from passive judges. For that reason, I think it is probably best to avoid the label -- it doesn't help move the ball.

As for Kaimi's fall-back claim that the essay was in bad taste, I disagree again, although I agree with the impulse not to speak ill of the recently dead (a courtesy even the nonsentimental will locate in compassion to the chief's friends and family).

The difference between the Chief and ordinary folks, however, is that he was a republic-shaking figure of wide renown. Dersh believes, I suppose, that its essential to tag conservative giants with their misdeeds lest the ordinary run of American amnesia wash them away (like, say, Nixon.) I disagree with Dersh, for what it is worth, but I don't entirely blame him for holding the view. Just as long as it is applied even-handedly to liberal giants too.

Posted by: Dave Hoffman | Sep 6, 2005 7:44:33 PM

Actually, it's a shame that this debate should take place in the comments section alone, because it raises a reasonably interesting question: what do we mean when we call someone a "hack?" I haven't read Dershowitz's recent stuff, including the Rehnquist piece, so I refuse to cast a vote; it seems to me that as a legal scholar, he is mostly hors de combat at this point, having opted instead for life as a popular public intellectual. Having changed his audience, he has changed his approach too. But it seems to me that the definition of "hack" is like the definition of "bullshit" -- a difficult question the more closely you look into it. Some people must write invective, or just plain crap, without being "hacks"; it seems to me offhand that the quality of a hack has something more to do with the quality of being able to keep soldiering on, long after novelty of thought or felicity of expression has petered out. A number of legal scholars might earn this title. So, too, might a number of bloggers -- and so I think on reflection that I'm glad the discussion is occurring in the comments alone. P.S.: There can also be fairly high-functioning hacks, I think. When I think of hacks and hackery, I can't help but recall the dialogue in Woody Allen's Manhattan about the academy of the overrated.

Posted by: Paul Horwitz | Sep 6, 2005 7:13:49 PM

Dave,

Perhaps we can agree to disagree on this one.

Setting aside the broader question of hack-ness in general, which is peripheral to the specific issue here, I think that Dershowitz displays appallingly bad taste in this specific piece. To cite one obvious example, he loudly complains about being attacked (on Hannity and Colmes) after he is unable to defend himself. This in an article that is, start to finish, an attack on a recently dead man.

Posted by: Kaimi | Sep 6, 2005 5:57:19 PM

Kaimi,
I question that Prof. Dershowitz is a hack.

Let me rephrase.

He isn't one.

His terrorism warrant idea, for example, was a real contribution to a matter of important public concern. He writes clearly and forcefully, more than we can say about most profs. And, it goes without saying, he reminds us of some inconvenient facts for the ongoing hagiography of the Chief.

Posted by: Dave Hoffman | Sep 6, 2005 3:34:00 PM

Every now and then, I wonder if anyone still questions whether Dersh is a hack. I wonder if the many proponents of that view really need any more evidence.

They don't. But even if they did, at least Dersh is kind enough to, on a regular basis, furnish such evidence.

Posted by: Kaimi | Sep 6, 2005 3:12:25 PM

Larry Tribe - with whom most folks here will be aware that I disagree completely, on virtually every issue that matters - offers a dignified and respectfull farewell without emnity to an intellectual opponent.

By contrast, Dersh serves up a travesty. I suppose one response might be "have you no sense of decency sir, at long last? Have you left no sense of decency?", but truthfully, I type with all ten digits, and so the above response seems uneconomical, given that I think the best response to Dershowitz involves the use of only a single finger.

If, by "intellectual diversity" you mean that there are some faculty members that have an intellect, and others that apparently do not, Dershowitz's comments certainly provide support for that hypothesis. He should have listened to his mother, because - as I never tire of telling my son - mom is always right.

Posted by: Simon | Sep 6, 2005 1:59:41 PM

I'm not sure I'd refer to Dershowitz's column as "intellectual." Dan Markel has done more to set back civil rights in 200-years. He is a scoundrel. No, I won't provide citations, and if you ask me to, I'll quote anti-semites to smear my critics by assocation. Oh, and Sean Hannity is a loser, since he attacked me when I wasn't able to defend myself. Like the Dixie Chicks, I cry censorship from the covers of magazines. Oh, what's that? You say that attacking a dead guy is sorta the same thing as when Sean attacked me? Well, people who disagree with me are anti-semites. Therefore, you are an anti-semite.

By the way, as you can tell from my column, I'm quite the classy guy, and I know how to point out why we're similar instead of different. Thus, buy my book on the Arab-Israeli conflict, since someone like me (who is totally able to get along well with others) has a lot to teach them.

Posted by: Mike | Sep 6, 2005 1:39:15 PM

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