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Friday, August 14, 2009

Is Silence the Better Part of Valor?

In my ever-expanding series of musings about the ethical practice of legal scholarship, I thought I'd alert readers to this interesting response to Jack Balkin by William van Alstyne. It appears on Balkinization:

A few days ago, Jack Balkin posted an SSRN reference to a forthcoming piece of mine titled "The Unbearable Lightness of Marriage in the Abortion Decisions of the Supreme Court." He courteously sent me an email, providing an attached copy, with an expression of hope that he had not "mischaracterized" what I wrote. I thought that he had done so in a variety of ways, and at once wrote him back to say so, with a few paragraphs as merely a start to a longer reply.
After reflecting on the matter over the weekend, however, I decided against the idea. Frankly, it is too reminiscent of the endless exchanges Raoul Berger got into whenever anyone wrote something less than flattering of something he had offered in print. (It was all too much like pleadings at common law, i.e., complaint, answer, rejoinder, surrejoinder, rebuttal, surrebuttal. If nothing else, it could rightly be said of Raoul Berger that he was "indefatigable," i.e., Raoul let no critic go unanswered, determined always to have the last word, no matter what).
On reflection, it seems far better to thank Jack for drawing attention to my SSRN-posted essay, with the suggestion to the many readers of his blog just to read what I wrote, judge the matter for themselves, and leave it at that. To the extent they find it wanting, well, that's quite all right. Still, at the end of the day, it will be quite nice that it may thus achieve a wider audience than I had any reason to expect.

It's kind of a gracious reply--except for the none too subtle digs at Raoul Berger. I guess the thought is that if you're at Harvard or dead (or, better, both), the principles of generosity or charity don't much apply, even or especially to those who might simply be really committed to "getting the arguments right" (one of our mottos here, inspired by Walzer)...In any event, I would think most people who write a critique of another person's work would welcome (or if they have integrity and curiosity, should welcome) the feedback of the object of the critique. That said, I suspect that for some of these objects of critique, the task of replying to those who engage you seems tedious because it requires you to look back on your work when you might prefer to look forward, or perhaps forget you even wrote those words.

Alas, I'm reminded that I have a few things I'm supposed to respond to...but I think I hear the more urgent call to go change a diaper or six. Have a good weekend.

Posted by Administrators on August 14, 2009 at 04:24 PM in Dan Markel | Permalink


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I see your point, Bruce, but I think public discussion - respectful public discussion, that is - may be the best way to suss that out. (The threat of a vigorous reply would also make the original author think twice about responding in the first place - which is not to say she won't do it, but when she does there should be a greater chance of its being warranted.)

Of course, with the publication schedules and lag times involved with journals and law reviews, such discussion would be more productive using a forum where people could respond fairly quickly - some kind of log, maybe on the web, with a clever pun in the title...

Posted by: Mark D. White | Aug 16, 2009 11:01:06 AM

Always good to see discourse about discourse. The anarchist in me would like to see a real contretemps over somebody being misinterpreted unfairly about what they had to say about being misinterpreted unfairly.

I've been reading things by and about Sir Karl Popper this summer. In a sentence, Popper's scientific and political philosophy turned on criticizability of theories (The Logic of Scientific Discovery) and political institutions (The Open Society and its Enemies), respectively. But apparently, Popper himself took criticism very badly. Which again demonstrates that it's one thing to theorize objectively about something, and another thing to do it.

Posted by: Jeff Lipshaw | Aug 16, 2009 10:17:55 AM

The problem I've seen -- mostly on the letters page of journals in other fields, but also in law -- is that the strongly criticized author *always* thinks they've been misinterpreted in some respect. So if you are an author and you believe you've been not just criticized, but misinterpreted, that actually doesn't tell you whether you should respond.

Posted by: Bruce Boyden | Aug 15, 2009 8:35:44 PM

But there's a difference between criticism/disagreement and mischaracterization - from the perspective of the original author, the former involves others confronting your arguments and extending the discussion, which is always good (assuming it's done well), while the later threatens to distort your original message, which is rarely good, especially if not answered.

Of course, this is assuming the mischaracterization is not asinine and is from a respectable source - no need to give longer life to hateful or ignorant criticisms.

Posted by: Mark D. White | Aug 15, 2009 6:16:44 AM

I didn't count them myself, but I remember being told to expect 12 diaper changes a day for newborns. Fortunately that begins to tail off in a couple of months.

I agree with the basic point here; I'm amazed at the number of authors who, when confronted with strong criticism, try to fight back with disputes over picayune details. It usually only confirms the original assessment.

Posted by: Bruce Boyden | Aug 14, 2009 10:47:57 PM

I took the point to somewhat less charitable: Getting into in exchange over what you meant with a person who is overly defensive ends up being a waste of time. Nothing ever gets settled, the concern would run, as the other person will try to wear you down and won't play fair. Of course, whether that is true with Balkin or Berger I can't say, and I don't know the basis of the concern for Prof. van Alstyne. But I took that to be the gist of the response.

Posted by: Orin Kerr | Aug 14, 2009 10:38:49 PM

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