Saturday, April 24, 2021

Idea Laundering in Legal Scholarship

Yesterday, Eugene Volokh had an interesting post on the Volokh Blog.  In an article discussing mass shootings, he noted that an article in a major law journal (apparently, Yale) observed, "White men have committed the vast majority of mass shootings in the United States during the last thirty years."   Volokh checked the original statistics, and he found that this claim was wrong.  He declared, "But when one goes to the source, one sees that it reports 107 mass shootings, for 103 of which the shooter's race was indicated. But of those 103, 60 were white: 58%, hardly a 'vast majority.'"  (Also, 58% is slightly less than the percentages of whites in the overall population.)

He then argued, "That, though, is the point: Even seemingly credible sources, such as a serious scholar in a serious academic journal, make errors. If you're writing on the subject and relying on the source, don't let their errors become your errors: Read, quote, and check the original source, going as far back in the chain of citations as is feasible."  Consequently, "I often urge my students to always read, quote, and cite original sources, rather than relying even on seemingly trustworthy intermediate sources (such as law review articles or court opinions)."

Great advice!  I would go one step further, however, and check for "idea laundering."

A recent article has observed, "Idea laundering refers to a process that may be growing more common in academic publishing. It involves the capture of peer review processes by activists to create the false impression that certain ideologically and rhetorically useful claims have scientific credibility, even when, by conventional scientific standards of rigor, logic, and strong evidence, the claims command no credence.

The process at its most extreme works like this. Some idea is presented or even claimed to be true in a book chapter or article, with little or no evidence. It might even be done reasonably, as speculation, or it might involve a researcher leaping to an unjustified conclusion based on weak evidence. The idea, now published in a peer reviewed journal, can now be cited by other researchers publishing in other peer reviewed journals as 'evidence' for the validity of the claim. In the total absence of validity evidence, new researchers can then further cite one another's peer reviewed publications in support of the claim."

The authors then apply idea laundering to microaggressions: "The CMC appears to be a product of idea laundering because it is currently ricocheting through psychology scholarship and the broader culture as if its validity has already been scientifically established. The problem is, discovery that the emperor has no clothes (at least not yet) requires the deep dive into primary sources that most writers are not inclined to, or don't have time to, undertake."

The authors declare that "What's needed is 'severe testing.' A severe test is one that will find flaws in a claim, including alternative explanations, if they are present. After surviving severe testing, application of claims to the real world then require additional research that is plausibly described as an order of magnitude more difficult. For example, far more validity work is needed to identify which types of behaviors consistently stem from prejudice and are perceived as slights."

Idea laundering has also been observed by the popular press.  For example an article in the Wall Street Journal stated, "You’ve almost certainly heard some of the following terms: cisgender, fat shaming, heteronormativity, intersectionality, patriarchy, rape culture and whiteness.

The reason you’ve heard them is that politically engaged academicians have been developing concepts like these for more than 30 years, and all that time they’ve been percolating. Only recently have they begun to emerge in mainstream culture. These academicians accomplish this by passing off their ideas as knowledge; that is, as if these terms describe facts about the world and social reality. And while some of these ideas may contain bits of truth, they aren’t scientific. By and large, they’re the musings of ideologues."

Of course, idea laundering is not limited to the far left.  Paul Campos has asserted concerning claims that Kamala Harris was not an American citizen, "All this is about idea laundering. It's about using right wing money to hijack American research universities, so their academic reputations can be exploited to put a cultural stamp of approval on the most extreme forms of cultural and political reaction."

In other words, it's about making the kind of thing Eastman is paid to disseminate academically respectable enough so that it has to be taken seriously as part of academic and cultural discourse - because refusing to do so would then just be an example of how PC Cancel Culture is inimical to the free and open exchange of ideas."

Finally, idea laundering is not limited to ideological writings; it can appear in neutral writing.  For example, I have written a great deal on the neuromyth of preferred learning styles.  (Theory-Induced Blindness in Legal Scholarship) The reason this neuromyth multiplied is because secondary sources copied other secondary sources without going back to the original scientific research and checking for dissenting views.

In sum, idea laundering can be a significant problem in scholarship, including legal scholarship.  A rigorous scholar checks original sources to establish the accuracy of facts and to determine whether idea laundering has occurred.  Legal scholars need to adopt this and other critical thinking techniques.

(Scott Fruehwald)

 

 

https://lawprofessors.typepad.com/legal_skills/2021/04/idea-laundering-in-legal-scholarship.html

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