Wednesday, September 30, 2009

Lipshaw Creates Firestorm By Talking About Religion and Brian Leiter

Two subjects that, Miss Manners said, should never be the talk at a formal dinner.  Anyway, Jeff's SSRN piece analyzing Leiter's conception of religion has become "recommended reading" by Larry Solum on the Legal Theory Blog, and is number one with a bullet on the First Amendment Law Prof Blog

It has also caused some consternation on the Prawfsblawg blog because Brian Leiter does not like what Jeff says very much.  Although blogger Rick Garnett cut out the most strident comments by various people (none by Jeff, who is polite, in my opinion), it is still fun to read Professor Leiter's apparent position that Jeff is wrong with a capital F.  When he refers to Jeff as Professor Lipshaw (as in "Professor Lipshaw's incompetent caricature of my arguments in the SSRN essay"), you immediately think of Marshall McLuhan coming out from behind a theatre billboard telling Jeff, "You know nothing of my work.  How you got to be a professor in anything is beyond me."  [And read a real attempt to engage Jeff intellectually here by blogger Michael Young.]  Keep it up, Jeff.  At least he spelled your name right.  If law school were a situation comedy, you and Brian Leiter would be in-laws.

[Alan Childress]

Blogging | Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference Lipshaw Creates Firestorm By Talking About Religion and Brian Leiter:


I didn't think my comment was strident, yet it was deleted.

Posted by: Patrick S. O'Donnell | Sep 30, 2009 8:18:38 PM

Good point, Patrick, and sorry I painted with too broad a brush. Some people were really hammering BL, and I was just saying Jeff did not. I know you would not, either.

I hope that you will write your own essay on Leiter's and Lipshaw's conceptions of religion and its "value" and also publish it in SSRN. If you do, please let us know so we can link to it.

Posted by: Alan Childress | Oct 1, 2009 9:21:47 AM


I do hope to write something, eventually (perhaps Jeff told you), and I happen to be quite sympathetic to Jeff's take on things (even if I find religious ritual more congenial to the spiritual life than he does!).

And please stop by Ratio Juris (one of the more obscure 'law' blogs) now and again (or at least encourage your more philosophically-inclined students to do so):

All good wishes,

Posted by: Patrick S. O'Donnell | Oct 1, 2009 9:59:23 AM

Here's an interesting ethical question that might be interesting for you. It doesn't concern practitioners, but legal academics:

Is it unethical or inappropriate for law professors to write and circulate articles in areas or on topics in which they lack any relevant disciplinary competence?

I don't have a firm view about this. Obviously law professors do this a lot, and it is always open for others to point it out. But dillettantism may pose some risks to serious scholarly inquiry and many of us do refrain from publishing, or even posting on SSRN, essays on topics where we are out of our depth. What are the obligations of law professors in this regard?

I realize this may be beyond the standard fare in "legal ethics," but I wonder if you have thoughts on it. Thanks.

Posted by: Brian | Oct 1, 2009 5:35:01 PM

Of course Brian's questions are not addressed to me but as I've published a few things outside my area of disciplinary training and competence (technically, one might even make the claim that EVERYTHING I've published is outside my area of training, at least insofar as I did not specialize in 'Islamic Studies' nor possess a PhD) and as I'm dispositionally inclined toward temerity (or more charitably, chutzpah), I'll address at least his first question.

If one fancies oneself--or others fancy one--an intellectual, i.e., something above and beyond the status of an academic, then by definition and imperative, one will be drawn to treating topics outside one's professionally certified area of competence. As Sartre reminds us, THE fundamental reproach directed against the intellectual is that he or she "is someone who meddles in what is not his business." This reproach rains down from the ivory tower and erupts from the hoi polloi, although the motivations no doubt are myriad and vary in the two cases. Nonetheless, the anxiety canalized in the reproach is not without merit, for

'it is true that the intellectual is someone who intervenes in problems that do not concern him. So much so that in France the word 'intellectual,' as a pejorative term, dates from the Dreyfus affair. In the opinion of the anit-dreyfusards, the acquittal or condemnation of Captain Dreyfus was a matter for the military tribunals and, in the final analysis, for the General Staff: the dreyfusards, by insisting on the innocence of the accused, were interfering in a domain that was outside their competence.' (Sartre)

Jeff's activities as an intellectual are far more modest in this instance, being exercised within the academy proper (as opposed to straying outside its province), albeit outside, strictly speaking, his area of disciplinary specialization. The fruits of such efforts should be judged by the bounty they provide or, in the words of the old saw, "the proof of the pudding is in the eating." In fact, I would file such explorations outside one's formal field under the heading of "academic freedom." And thus it is neither "unethical or inappropriate for law professors to write and circulate articles in areas or on topics in which they lack any relevant disciplinary competence." I would hope the methodological skills and intellectual capacities cultivated within the academy provide the minimal competence necessary to take on at least some topics not directly related to one's specific professional expertise.

Indeed, if it is true that many if not most fields of academic inquiry and research are becoming increasingly "specialized, diversified, and fragmented," I suspect we will witness a corresponding rise in efforts to address subject matter outside one's area of formal competence, especially insofar as the more pressing problems or the most interesting issues, or simply the "contexts of application," do not recognize, if not mock, our disciplinary (and intra-disciplinary) boundaries (i.e., the material we struggle to make sense of is ever more complicated), so much so that one might even be said to feel something like an intellectual obligation to venture outside one's domain of "disciplinary competence."

I can imagine other answers to this question but this will have to suffice for now from my end.

Posted by: Patrick S. O'Donnell | Oct 2, 2009 4:13:46 PM

Is it unethical or inappropriate for law professors to write and circulate articles in areas or on topics in which they lack any relevant disciplinary competence?

Is it unethical for Mr. Leiter to blog about the status of economics?

Posted by: JD | Oct 5, 2009 1:41:08 PM


No. Why might one think otherwise?

If by "status" you refer to the "scientific" status, say, of neo-classical economic theories and doctrines, it's perfectly acceptable to raise questions of the sort one might raise in philosophy of (natural and social) science about the scientific status or quality of arguments, claims, theories, proposals, and so forth made by economists. That is the kind of thing those with a training in and talent for philosophy do. One might, relatedly, raise questions about the notion of rationality presupposed or assumed by contemporary economists, about their reliance on highly idealized mathematical and other abstract models that make it difficult for the rest of us to ascertain their relevance for or connection to actual markets and economic practices. Etc., etc.

There are a host of rather varied questions one might consider in a discussion of the "status" of economics, and the following titles illustrate the sorts of (or provide a taste of the kinds of) questions that might be raised in any such inquiry:

Amadae, S.M. Rationalizing Capitalist Democracy: The Cold War Origins of Rational Choice Liberalism (2003).

Gorz, Andre. Critique of Economic Reason (1989).

Hausman, Daniel M. and Michael S. McPherson. Economic Analysis, Moral Philosophy, and Public Policy. (2nd ed., 2006).

Maki, Uskali. The Economic World View: Studies in the Ontology of Economics (2001).

McCloskey, Donald N. The Rhetoric of Economics (1985).*

McCloskey, Donald N. Knowledge and Persuasion in Economics (1994).

Mirowski, Philip. Machine Dreams: Economics Becomes a Cyborg Science (2002).

Sen, Amartya. On Ethics and Economics (1987).

*Donald is now Deirdre.

Posted by: Patrick S. O'Donnell | Oct 5, 2009 3:45:11 PM

I can't quite put my finger on it, but Professor Leiter's question seems to me to bear on the debate about the proper role (and future) of the legal academy.

If the silos in which scholarship takes place are so very narrow that another member of the academy can't even comment in writing on a colleague's work without risking a charge of unethical behavior, how do we justify our existence to a broader audience (students, taxpayers, alumni donors)? Exactly what value are we creating (and let us recall, it's a writing job, not a teaching job, and a different cast of characters might be far better at the teaching part) if we have become so super specialized that we can't even talk to each other in print? It was ok for the Lodges to speak only to the Cabots, and the Cabots to speak only to God, but they weren't asking taxpayers, maxed out students or alumni to fund the enterprise.

I also think there is in Professor Leiter's question a presumably intended set of implications with regard to academic freedom. Unethical behavior is an established ground for terminating a tenured professor. If publishing outside your silo is unethical, a professor who unethically thinks and publishes outside the boundaries set for her has no job tenure, and hence no academic freedom. I find that troubling, and find it more troubling when the suggestion of unethical behavior is directed at an untenured professor who published, perhaps unwisely, but also presumably in good faith.

Sorry to be anonymous, but I do not have tenure, and do not want to invite retaliation.

Posted by: anon | Oct 6, 2009 2:52:07 PM

Dear Anon:

In fairness to Professor Leiter, I think he was only commenting on my bona fides and my wisdom, not my academic rights. He has been a public champion of academic freedom, even in the case of John Yoo, where others have made the argument that Yoo's positions taken in the OLC memoranda were professionally incompetent. See:

Moreover, I have the privilege of moderating comments on this blog, and I chose to approve the comment. I would hate to see this exchange dampen or chill anyone's passion for diving into a discussion. Just proceed with caution and understand that one lives with the consequence of one's choices.

Posted by: Jeff Lipshaw | Oct 7, 2009 4:35:23 AM


Although I think anon has raised, albeit in a roundabout way, a good point: Brian did not see how the questioning of your bona fides and wisdom, which he notes elsewhere serve to illustrate a more general point (as he wrote: 'the general issue, while illustrated by this case, goes well beyond it.'), might have been better looked at in light of the academic freedom he has elsewhere championed and avowedly cherishes, in which case this would not have prompted, at least in the first instance or any prima facie way, the circulation of your paper as an "ethics" question. In other words, characterizing this as an "ethics" question would seem to have at least some bearing upon what falls within the scope of (or raise questions related to) academic rights.

And it might be said that one could believe the OLC memoranda were indeed professionally incompetent, as I happen to (and I suspect, thus am not certain, that Brian does so too), and yet still believe in upholding tenets of academic freedom in the case of John Yoo (things might change, of course, if he ever gets convicted of a crime*).

[Of course professional incompetence does not automatically (strictly) give rise to criminal liability, yet it's important to keep in mind, with Jens David Ohlin, that when the rules of the former conflict with the latter, as they might in this instance, the latter trump. Moreover, "a history of non-prosecution of lawyers (based on prosecutorial discretion) is not the same as a rule of law that lawyers are immune from the regular criminal law rules for complicity liability." And, contra Ohlin, the "torture lawyers" may be criminally culpable under other modes of liablity, at least by the standards of international criminal law.]


Posted by: Patrick S. O'Donnell | Oct 7, 2009 6:03:41 AM

It is precisely because Professor Leiter is an expert on academic freedom that I thought the implications with regard to academic freedom were fully thought out and intended. He, more than most anyone, understands full well what the implications are of tagging a scholar with charges of unethical behavior. I found it interesting, and, yes, a bit surprising, that he went in that direction.

Posted by: anon | Oct 7, 2009 7:50:03 AM

Post a comment