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Sunday, July 16, 2023

What Does it Mean to Be "Totally Misrepresented?"; With a Note on "Beyond the Scope"

Journalist Allison Stewart writes to complain about being cited in Justice Thomas's concurrence in SFFA. She writes that Thomas, who cited her book about Dunbar High School, engaged in a "misreading of Dunbar's legacy." She shares the words of an acquaintance who sent a text saying that Thomas had "totally misrepresent[ed] your work."And she writes, "I, too, was appalled that a book I’d written about the impact of education was used to uphold the Supreme Court justice’s anti-affirmative action argument. We are in a sad moment when cherry-picked information now passes as fact."

Two points about this. First, Stewart's heartfelt article does not, in fact, show that Thomas "totally misrepresented" her work. The passing citation comes in a footnote supporting the general argument--one that represents one of many points of common ground between Thomas and Critical Race Theory scholars and Black nationalists--that Black schools and other Black institutions can be places and sources of independent achievement and success. Thomas takes Dunbar High School as an example, primarily citing Thomas Sowell's work. He writes, citing Stewart's book, "Dunbar produced the first black General in the U. S. Army, the first black Federal Court Judge, and the first black Presidential Cabinet member."

Stewart does not contest the accuracy of the citation; for that matter, she agrees with Thomas that "Black students can achieve." Hence the necessary line about "cherry-picked information" passing "as fact." Even that is inapt. The information may be cherry-picked, but it is fact. Stewart's line would be more a propos if, say, one took statistical data about the effect of a virus on various populations and used it to propound a false factual claim about that virus being "targeted." In this case, however, citing Stewart for the purpose of noting a historical fact about Dunbar's alumni is no more "cherry-picking" as such than it would be to cite a book about the Black Plague for its statement about the number of people estimated to have died of it in 14th century Europe, even though that book is primarily concerned with the social and literary sequelae of the epidemic.

Stewart's actual complaint, it seems, is not that Thomas misrepresented or distorted her work, but that he cited it in the context of an opinion criticizing affirmative action, which Stewart supports. She is entitled to disagree with him, as anyone is, and one can understand her being discomfited or dismayed by the appearance of her book in his concurrence. But I see no misrepresentation.

That point would be barely worth making, were it not for two things: 1) the generally poor level of scrutiny of arguments that support one's own views, such that one can guarantee that Stewart's line about misrepresentation will be both widely shared and quickly inflated into a confident claim that Thomas engaged in falsehood or misstatement; and 2) the degree to which "you misunderstood my work" has itself become a kind of strategic accusation, like arguments about illegitimacy. I do not accuse Stewart of doing this. Nevertheless, I assert that strategic moves of this sort are both relatively frequent and more worrisome for contemporary trust in "fact" than anything involved in Thomas's passing citation of Stewart's book. (Building on other parts of her essay, Stewart might have developed a stronger argument that Thomas's denial that many people contribute to success, and that children deserve support and investment, is a more direct misrepresentation of her work. There are two problems with this, however. One is that it is false; Thomas denies neither proposition. The second is that the point is orthogonal to the question whether that support and investment should come through affirmative action in higher education, or through other means.)  

The other point is that while journalists and scholars are free to dislike it when someone whose policy views they disagree with accurately cites their work, just as artists are free to dislike it when someone they loathe likes their art, and all of us have experienced this in cases that don't involve actual misrepresentation, this kind of thing is a necessary element of good scholarship, just as it is of good art. At least outside of the harder sciences (and possibly there too), and apart from highly narrow factual claims, good scholarship can never guarantee a single set of implications or conclusions, policies or policy consequences. It always leaves open spaces and gives hostages to the future. My own view is that the best scholarship and journalism not only doesn't seek to avoid this: it steers into it, willingly acknowledging and exploring the ways in which the author's findings and recommendations might have perverse or undesired (from the author's perspective) or unexpected consequences, or raise questions about the larger implications of and tensions created by that work. 

One interesting and occasionally dispiriting way to figure out whether legal scholarship meets that standard is to examine the "beyond the scope of this article" footnotes that inevitably crop up in modern articles. One can ask of these notes: Is the question beyond the scope because it exceeds the author's expertise, or because it is not germane, or for some other clearly valid reason? Conversely, is the excluded question clearly germane to the article and clearly within the scope of the author's expertise--but likely to raise unwanted or uncomfortable questions, or make the author's normative claims less attractive? If so, does the author at least give the reader enough detail about what is being excluded, and why it might matter, that the author's refusal to address those questions neither misleads the reader nor prevents the reader from judging the author's refusal? If not, we may be seeing an instance of an author strategically attempting to direct and manipulate the shape and reception of his or her scholarship in a way that, on some core level, renders it a failure as scholarship. Like the novelty claim, the "beyond this scope" note is an essential clue in the critical, rather forensic reading of legal scholarship, a rug under which all manner of dirt may be swept. 

Posted by Paul Horwitz on July 16, 2023 at 12:53 PM in Paul Horwitz | Permalink

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