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Friday, May 18, 2012

Thank God I'm Canadian, Part XLVI

Todd Zywicki is seemingly obsessed with Elizabeth Warren and Brian Leiter and not, quite reasonably, me. Having written somewhat intemperately about his last Elizabeth Warren post, however, I would like to weigh in very briefly to comment on two or three points made in his newest one

Todd writes: "Let me say again what I expressed at the outset–I have known from highly-credible sources for a decade that in the past Warren identified herself as a Native American in order to put herself in a position to benefit from hiring preferences (I am certain that Brian knows this now too)." (This is perhaps related to his statement later in the post that "there is plenty of bad blood between Elizabeth and myself.")

I'm in no position to evaluate the truth or falsity of that statement.

Others are similarly in no position to evaluate the truth or falsity of the information I pick up in law professor gossip circles. That's why I don't blog about it. (And for an additional reason as well: if history has taught me anything, it's that even highly credible sources can be wrong.) If Todd wants to enlighten the rest of us, he's welcome to do so. But I thought that the usual rules of civilized behavior applied on the Internet too, and perhaps even especially on the Internet: don't repeat information from "highly-credible sources" -- ie., gossip -- to third parties, especially in print, without meaningful evidence. If I'm wrong about what constitutes basic civilized behavior, I hope someone will let me know.

Second, Todd writes: "For those who still claim to be uncertain about this note one final point–that the only competing explanation that she has offered is that she identified herself as minority only in order to find similar people with whom to have lunch.  There is no option C–either she did it only to find people with whom to have lunch (which she acknowledges never actually happened) or she did it at least in part to put herself in a position to benefit from hiring preferences.  Moreover, note that the arguments are not symmetrical–she and her defenders must be claiming that she had zero intent to put herself in position to gain a hiring preference by identifying as a minority.  My impression is that there are some people who really want to believe that there is some other explanation–but there isn’t." 

Speaking only for myself, what irritated me about Todd's previous post was this statement: "[I]t is obvious to everyone else why Elizabeth Warren self-identified as Native American all those years–which was to get an edge in hiring.  Even less plausible, of course, is her own explanation–that she was looking for people to have lunch with (once she got to Harvard was it that she no longer was interested in having lunch with other Native Americans or that the strategy was so successful that she had just had too many lunches through the years?). . . . So assume the only reasonable explanation–that contrary to Leiter’s statement she did this to get a leg up in hiring and contrary to her own statement she didn’t do it to find lunch partners."

As I wrote in response, and as many of his commenters did as well, there were all kinds of reasons why someone might list, whether accurately or out of a mistaken belief in one's status, list oneself as having minority status on an AALS directory form. I didn't defend Warren tout court or argue that she had no additional job-seeing motives. Indeed, I wrote: "None of these reasons are exclusive of a desire to get a job; I don't doubt that many people who do things for a variety of reasons are also not unaware of any potential professional or economic advantages those actions might also provide." But I see I was mistaken in understanding Todd to have meant what he said the last time around. He wrote initially that the "only reasonable explanation" for her actions was "to get a leg up in hiring." He now suggests that, in fact, it is her defenders who must believe that she had one motive, and one motive only. Well, there's a difference between defending Warren and criticizing Zywicki. Given everything we understand, outside of campaign season, about human behavior, it was silly to claim that a person could check off a box for only one possible reason. It still is, and I don't see anything reliable in Zywicki's post that suggests otherwise.

Finally, Todd writes: "Of course, the only reason that this issue is interesting and relevant today is because Warren is running for the U.S. Senate and is the most prominent law professor in America at this moment." Two points on this. First, it's still not that interesting. Not that there's anything wrong with law bloggers writing about uninteresting things; we do it all the time. But I maintain the position that while there is no such thing as a "forbidden" topic in politics, there are certainly better and more informative ways to engage in politics and make useful political choices than to argue or joke about law directories, girlfriends or boyfriends, what Mormonism means and where someone chooses to put his dog for a roadtrip, who posed for what magazine, and on and on. And if we're going to talk about those things, which on the whole I wish we mostly wouldn't, it would be nice if we applied the same standards we would apply in explaining our own lives to others: namely, that they're complex, involve a mix of virtues and vices, require a lot of nuance and at least a little mercy and charity to judge, and in the final analysis only say so much about how we would inhabit particular professional roles. (It would be nice if politicians, including Warren, could say something similar when describing their own past actions, but I'm past hoping.) Which is why, on the whole, we're better off talking about policy. But, as I like to say, that's just me; I'm Canadian. Not a contentious bone in my body.

Second, Elizabeth Warren is not the most prominent law professor in America at this moment. That would be Randy Barnett.  


Posted by Paul Horwitz on May 18, 2012 at 11:35 AM in Paul Horwitz | Permalink


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It is important because it highlights the double-standard in politics.

And I say this as an observer of politics as well as based on my own limited experiences.

Professor Warren misrepresented an aspect of her identity. If Elizabeth Warren was the Republican Party candidate for U.S. Senate and a tea party activist, the people who now say this does not matter would be out there attacking her. But she represents the party of the left, which unsurprisingly has decided that in this instance when someone has claimed in error to be a member of a minority group, it's not a big deal.

If it's truly not a big deal, then all disclaiming the importance of this issue as to Prof. Warren's character should all be out front when the next person claims minority status in error...and repeat that it's not an issue...even when it is a Republican / conservative.

Posted by: Adam | May 22, 2012 2:00:26 AM

Oh, and I should have said "alleged fact" -- I have no view of whether Todd is actually right or wrong on this one.

Posted by: Orin Kerr | May 21, 2012 1:35:37 AM

Paul, I appreciate your perspective, but I think the standards of opinion blogging are a little different from the standards of journalism that you're using as a reference point. Todd doesn't intend his blog post as a report of the facts of what Warren did, and no one expects that others will read it that way. As a result, the concern you raise about how you would approach the story as a journalist don't seem exactly on point to me. The point of Todd's post was to express an opinion, and it seems to me that the alleged fact embedded in the opinion was articulated just to get the opinion across. (The opinion makes no sense without the alleged fact.) In my experience, that's a fair position for a blogger to take. Of course, others should take the embedded fact with a large grain of salt, as it was not subject to the standards of journalistic reporting. But I don't think that means the fact shouldn't be expressed in the context of explaining the opinion.

Posted by: Orin Kerr | May 21, 2012 1:34:37 AM

I don't have anything to say about the merits of this issue, but kudos to Paul for figuring out how to put a cedille in comments! (And note that I couldn't even figure out how to include the accent aigu in "cedille"!)

Posted by: Sam Bagenstos | May 19, 2012 8:44:51 PM

Anon's comment seems to fit into the genre of "I strongly disagree with the post, therefore the post author is either stupid or disingenuous." I think we're pretty much over-quota for such comments.

Posted by: Bruce Boyden | May 19, 2012 3:38:58 PM

It just strikes me as so patently obvious that the only reason someone like Warren would make-up such a ridiculous story would be to game the affirmative action system that I find it incredible that anyone would claim otherwise.

Really, Paul, who are you kidding?

Posted by: anon | May 19, 2012 10:35:12 AM

Orin, as always I appreciate your comment. The line about the Internet in my post did involve a soupçon of self-aware humor, but your "Emily Post" line stung just the same. I did think a bit about the issue you raise before writing, so let me respond. You have a point, of course, but I think the point goes both ways. If, weirdly enough as you say, this is a major national political story, then there's also all the more reason to back up one's allegations. I understand people don't lightly reveal their sources, but they can, and sometimes do, do just that when the issue is significant enough. That's especially true because, at least in my view, there really is a fine line between what one may think of as reliable information and pure gossip. Even information from credible sources routinely turns out to be distorted or wrong. Back in my reporting days, the more controversial the story, the more one made an effort to find multiple independent sources and corroboration -- and even when that is done, the stories still sometimes get it wrong. If reporters printed every juicy story they got from seemingly highly credible sources just on that basis, we would have access to many more, and more salacious, stories -- and some of them would turn out to be true. But the number of erroneous and harmful stories would also skyrocket. I see no reason to think Todd is being dishonest, but neither do I have any meaningful basis for judging what he heard, where his sources heard it, what axes everyone has to grind, and so on. That doesn't mean what he thinks he knows is mistaken, although that is certainly a possibility no matter how unimpeachable the sources. But it does mean, at least to me, that one either discloses the basis for information or keeps the matter to oneself or for casual talk in the faculty lounge. Again, all of us hear seemingly reliable things all the time. But our ability to approach these stories with some epistemically humility and a sense of the varying levels of proof needed on particular occasions does, for me, matter, and does say something about the difference between news and gossip.

Posted by: Paul Horwitz | May 18, 2012 8:04:12 PM

Paul writes:

I thought that the usual rules of civilized behavior applied on the Internet too, and perhaps even especially on the Internet: don't repeat information from "highly-credible sources" -- ie., gossip -- to third parties, especially in print, without meaningful evidence. If I'm wrong about what constitutes basic civilized behavior, I hope someone will let me know.

In all seriousness, I am not entirely sure you're right. As weird as it seems, whether Elizabeth Warren had a particular intent to do something 20 years ago recently has become a major national political story. If it turns out that 10 years ago -- long before this became a major political story -- Todd was told that she did in fact have that intent, then that actually strikes me as pretty interesting information that isn't irrelevant to the story. All the more so if Todd feels confident that his sources of information were accurate, and if he really has reason to believe that this was widely known. To be sure, Todd should have articulated the point a bit differently: I think he should have said he had heard this a long time ago, and had reason to believe it was widely known, long before it was a political story -- not that he "knows" it and everyone else does, too. But I don't think you need to go all Emily Post on him for"repeating information to third parties."

Posted by: Orin Kerr | May 18, 2012 6:22:42 PM

"But I thought that the usual rules of civilized behavior applied on the Internet too, and perhaps even especially on the Internet. . . ."

What parts of the internet did you base that thought on? I would like to hang out there.

Posted by: Joseph Slater | May 18, 2012 1:42:19 PM

If we had the social category of metis on this side of the border (which might make a lot of sense in Oklahoma), rather than one-drop conceptions of identity, this entire debacle might have been avoided.

Posted by: ALB | May 18, 2012 1:18:39 PM

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