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Wednesday, December 21, 2011

Name-Calling in Corporate Law Academia

Roberta Romano, Stephen Bainbridge, and Larry Ribstein all seem outraged at an unpublished, non-SSRN'ed paper by Jack Coffee that Romano (at least) has gotten her hands on.  Although I don't have a copy of the paper, they seem to be objecting that Coffee referred to them as "the 'Tea Party Caucus' of corporate and securities law professors."  Romano also says that they are referred to as "conservative critics of securities regulation," and that Ribstein and Bainbridge are Romano's "loyal adherents."  Romano calls this "serial name calling," Bainbridge complains that this is "insulting" and a "series of ad hominem attacks," and Ribstein says, "It’s sad a scholar of Coffee’s stature sees a need to resort to such rhetoric, though almost understandable since Romano’s devastating critique doesn’t leave him much of a ledge to sit on."

Somehow, I can't gin up much sympathy.  

Only one of those things in the "series of attacks" is really all that remarkable.  Being called a "conservative critic[] of securities regulation" is insulting?  Romano claims that the "conservative" adjective is erroneous, but c'mon -- you all are conservative!  Maybe not on all issues, maybe not in your heart of hearts.  And look, I've written before about how political labels in the context of corporate law can be misleading.  But I still don't think being called "conservative" is an ad hominem, especially if used in reference to the issue being debated.  On Sarbanes-Oxley, on Dodd-Frank -- you all are conservative!  As to the "adherents" thing, I suppose it makes Bainbridge and Ribstein into followers.  But Steve, you did use the whole "quack" meme after Roberta!

That still leaves the "Tea Party" remark, and sure, depending on what you think of the Tea Party, it could be pejorative.  (Not everyone would agree!)  But it seems pretty mild to me.  Plus, it's making a rhetorical point: these three are to corporate law what the Tea Party is to American politics.  I don't agree with the rhetorical claim, but it seems like a point one could make legitimately without being too offensive.

And this brings me to my real point.  There's the whole "Really?" thing that Seth Myers has going.  I find it kind of annoying.  But if you like it, then just insert "Really?" after each of these bullet points. 

So folks, you're upset about name calling when you've:

  • Called a major piece of federal legislation "quack corporate governance."  A quack is a fraud; someone who intentionally subjects others to harm and even death in order to make a quick buck selling bad advice.   So you're saying that the bill is equivalent to this?
  • Called a second major piece of federal legislation "quack corporate governance."  Did you not think that calling it "quack" might be offensive?
  • Referred to Gretchen Morgenson as "Morgenscreed."  And referred to the columns by said Morgenscreed as "lining Wall Street's birdcages."  Called one of her columns "the latest extreme idiocy." Called her a "clown[]."  And called her reporting "muck" and "fairy tales."  Not resorting to rhetoric, eh?
  • Called the Occupy Wall Street folks "a bunch of childish narcissists" and referred to the "moronic" campaign against corporate personhood. Called on state government to "kill" a nearby law school.
  • Said this about someone else: "I've spent the better part of my career crossing swords with these folks and I find them a remarkably thin skinned bunch. Call them 'self-appointed' or 'gad flies' or 'water carriers for left liberal organizations like unions' and they get all offended."

I feel like Jon Stewart here -- I could roll clips for twenty minutes.  The point is, these three are some of the most elbows-out academics that I know of.  And yet here they are, complaining about pretty soft stuff.  C'mon, people -- you're looking a little like Scut Farkus

UPDATE: Stephen Bainbridge responds.  He mentions that Coffee apparently compared him to Sergeant Schultz of Hogan's Heroes at AALS a few years back, which I left out because (1) it's not in Coffee's paper and (2) Romano & Ribstein didn't mention it.  Surely, that seems insulting, and I wouldn't blame Bainbridge for being upset by it.  And I also agree with him that blogging is less serious, more shoot-from-the-hip than scholarship, and different standards apply.  But even so, blogging is not a personal diary.  People do read it.  So perhaps it's less gauche to insult someone on a blog than at a conference.  But wherever you dish it out, you should be able to take it, too.

More importantly, I think Steve is wrong when he justifies his "quack" title with: "BFD. There's a huge difference between uncivil towards a person and being uncivil about a piece of legislation."  Saying a piece of legislation is "quack" legislation, in the title of your paper, is basically saying that only idiots or frauds could support that legislation.  So it's being uncivil to a large swath of people, rather than just one.  And it's not an aside at a conference -- it's the whole point of the paper.  If we're talking about civility in the context of scholarship, that is NOT civil.  Sorry!  When you call someone a "quack," you are not "avoiding insulting, demeaning or derisive language" or "genuinely listening to (and trying to make good sense of) what the other person says."  You're name-calling.  And that ain't civil!

Posted by Matt Bodie on December 21, 2011 at 04:54 PM in Blogging, Corporate | Permalink


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The word "conservative" has many meanings. Some of them are (or can be) insulting; others are not. Let me give a few examples, varying the adjective:
"Burkean conservative" is never an insult, and nobody ever takes it as such. (Indeed, lefties sometimes use it as a compliment!)
"Agrarian conservative", again, is never an insult, although it often implies that the user of the term does not wish to engage with the discourse of the conservative. Similarly with "Maistreene [sic?] conservative."
"Movement conservative" can be an insult. It can imply that the conservative is following a party line in bad faith. The same is true for "business conservative", although less so.
"Tea-Party conservative" is invariably an insult, coming from points left. It implies that the conservative is ignorant, and insinuates that the conservative is a racist.

Posted by: Ebenezer Scrooge | Dec 22, 2011 12:22:42 PM

"Calling a witness a 'serial liar' is very uncivil, but it is entirely proper (indeed, a positive public service) if the label is accurate."

Depending on the witness and jurisdiction, it might be grounds for a mistrial. In my jurisdiction, the terms "liar" and "lie" have been held to be so inflammatory that they improperly prejudice a fact-finder against the "lying" witness' testimony.

Posted by: Anon, good nurse! | Dec 22, 2011 9:52:59 AM

Or, in other words, saying that "X is a conservative, so clearly he doesn't know what he is talking about" is improper name calling, regardless of the truth of the assertion. Saying that "Y has a very low IQ, so clearly he doesn't know what he is talking about" is "name calling" in one sense, but it is proper name calling if the label is true. And when we say something is name-calling or ad hominem, we almost always mean that the attack is improper. Proper ad hominem attacks, such as impeaching the qualifications of an expert under Daubert, are not usually considered "name calling." By lumping the proper and improper versions of name calling together, you elide a very important distinction.

Posted by: TJ | Dec 22, 2011 9:39:39 AM


Of course calling someone conservative (assuming the label is accurate) is not objectionable. Calling someone conservative as a reason to dismiss their argument is. And I quite clearly read Romano et al. as accusing Coffee of doing the latter. Whether that accusation is justified is of course impossible to tell without Coffee's paper.

But where I take issue with your post is the pot-kettle equivalence. Again, in my mind, calling someone conservative as a reason to dismiss their argument is improper, even if the label is accurate. Calling someone fraudulent or stupid as a reason to dismiss their argument is proper, if (and it is a big if) the label is accurate. And most of your examples involve accusations of fraud or stupidity. There, the label might be inaccurate, but the argument is not improper. And so my point is that your equivalence argument is a false one.

Posted by: TJ | Dec 22, 2011 9:29:27 AM

Romano, Ribstein, and Bainbridge all seemed to object to Coffee's comments for being "name calling." I was just pointing out that they, too, have done some name calling in the past. Whether name calling is per se objectionable is not really the point of my post; the point is that pot, kettle, etc.

And I guess I don't see how labeling something "conservative" is out of bounds in an academic debate. Sure, I think it'd be dumb to dismiss something simply because it's conservative. But at the same time, I find it intriguing that Romano tries so hard to duck the label herself, when her proposal is clearly conservative as to this issue. Pointing out that liberals wanted sunset provisions on conservative legislation does not make sunset provisions non-ideological. But yes, if Coffee is just using the label as an end in and of itself, then that'd be a pretty weak argument. I hope he posts the paper so we can judge for ourselves. Although -- to make another point -- he obviously has decided he does not want to post it yet. If Romano is upset by the characterization, she sure is giving it a lot more attention than an unpublished paper would otherwise receive.

Posted by: Matt Bodie | Dec 22, 2011 8:55:37 AM

And having now read Bainbridge's response, I guess I'm mystified by both his and your focus on "civility." The problem with name-calling is not that it is uncivil. It is that it is an improper mode of argumentation.

Surely every lawyer who has ever taken evidence law knows the distinction between proper and improper attacks on a witness. Calling a witness a "serial liar" is very uncivil, but it is entirely proper (indeed, a positive public service) if the label is accurate. Calling a witness "ugly" is improper even if accurate, because it is irrelevant to what is at issue.

Similarly, calling an academic paper "dumb" is very uncivil, but is entirely proper if the label is accurate, because whether an idea is intelligent or stupid is relevant to academic debates. And even if the label is inaccurate, the problem then lies in the label's falsity, not its incivility. Sugarcoating the accusation to make it more civil--e.g. calling the idea "intelligence-challenged"--would not reduce the problem one whit.

On the other hand, calling an academic paper "conservative" as an automatic reason to dismiss it is not particularly uncivil, but it is improper. It is improper because whether a paper is conservative or not should not determine whether we give its arguments credit. I am obviously making a value-judgment here--that ideology is separate from an idea's merit--but I think that most people will agree with that statement.

Posted by: TJ | Dec 22, 2011 1:18:55 AM


OK, I'll grant you that Romano seems to contest the accuracy, though on the other side Ribstein seems unoffended by the label.

I maintain my bigger point, though, which is that the inaccuracy of the label is not the main issue. The main issue is that Coffee seems to be reflexively dismissing people who he believes to be conservative. Whether those people in fact fit the label is secondary. This is no different than if a critic of your work says "Well, Matt Bodie is a pointy-headed ivory tower academic, so who cares what he says."

To see this, consider that Romano starts by saying "Coffee sweepingly seeks to dismiss the scholarship with which he disagrees by engaging in serial name calling." Only after this does she note that, if one were going to dismiss all conservatives as a group, one should at least get the label right. And the part of Romano that your post initially took issue with--the sentence about serial name-calling rather than the follow-on sentence that you now quote--is referring to the more important (and I think legitimate, if Coffee in fact did this) complaint that no scholar should dismiss a position simply by labeling it "conservative."

Posted by: TJ | Dec 22, 2011 12:38:48 AM

I'm not sure I understand the point of the update. Lots of smart people have dumb ideas. I thought that was obvious. People make mistakes. (Perhaps I'm being uncivil by saying that there are dumb ideas. Does refusing to identify any of them protect me from that charge? Or is the fact that I believe that there are dumb ideas uncivil in itself?)

If Bainbridge said that the legislation would have horrible effects on capital formation, which would cause further problems (imagine whatever parade you'd like), would that too be uncivil, because only idiots would support causing problems? Perhaps my mother was right: if he can't say something nice about Dodd Frank, he shouldn't say anything at all.

Posted by: Thomas | Dec 22, 2011 12:18:04 AM

Just to respond to TJ's point, here's what Romano says:

"'conservative critics of securities regulation,' (a claim, at least in my case, that would be accurate if he had dropped the adjective),"

Isn't "conservative" the adjective here?

That seems to lead into her broader point, which is that because liberals like Jimmy Carter and Ted Kennedy have supported sunset provisions in other legislation, then her support for sunset provisions *solely for financial legislation enacted under certain circumstances* is also not conservative. This seems pretty strange to me. She only wants sunset provisions for legislation that she dislikes -- namely, federal financial and corporate regulation. If you advocate for sunset provisions for liberal legislation, that would be a conservative position. Just like if you advocate for sunset provisions for conservative legislation (like the PATRIOT Act), that'd be a liberal position. I don't know why she's fighting that.

Posted by: Matt Bodie | Dec 21, 2011 11:43:43 PM

Matt, I went to the linked posts by Romano, Bainbridge, and Ribstein, and I got a fairly different impression from you. None of them deny that they are conservative, and none of them seem to be insulted by the association with the tea party. In fact, none of them seem to be saying that the names (except the "follower" bit) are untrue, as such.

Rather, the resentment seems to come from the not-so-subtle implication that, because the views are conservative, they can be automatically dismissed. Perhaps Coffee didn't intend that implication; perhaps Romano, Bainbridge, and Ribstein are reading him wrong, or perhaps I read Romano, Bainbridge, and Ribstein incorrectly. But if I am getting it right, then it does seem a legitimate criticism of the reflexive dismissal of alternative viewpoints.

Posted by: TJ | Dec 21, 2011 11:26:09 PM

I know nothing of the underlying issues and little about the individuals involved, but Matt's post may just be thenPrawfs post of the year. Devastating and highly amusing.

Posted by: Andy Siegel | Dec 21, 2011 5:45:10 PM

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