Wednesday, September 22, 2021

How a CRT Adherent Gaslighted a Scholarly Organization: A Lesson for Legal Education

Gaslighting: " someone (a "gaslighter") who persistently puts forth a false narrative which leads another person (or a group of people) to doubt their own perceptions to the extent that they become disoriented and distressed. This dynamic is generally only possible when the audience is vulnerable such as in unequal power relationships or when the audience is fearful of the losses associated with challenging the false narrative." (Wikipedia)

Professor Philip Ewell shocked the music theory world at the Society for Music Theory conference in 2019 when he charged that American music theory was systematically racist. (here) Professor Ewell announced, “Music theory is white”–it is structured by a white racial, male framework.  This is the whiteness—which manifests itself in the composers we choose to represent our field inside and outside of the classroom, and in the music theorists that we elevate to the top of our discipline—that one must practice, regardless of one’s own personal racial identity, in order to call oneself a music theorist.” The problem is not negative racial stereotypes, but “positive white stereotypes.” In addition, the problem is not so much prejudice, but that “racism is systemic or institutionalized.”  He added: "Colorblind racism is the most significant form of racism in music theory’s white racial frame and has been used for decades to dismiss those who wish to cite our racialized structures and ideologies.”  Ewell did admit, “The linking of Schenker’s racism with his music theories is necessarily speculative—this is obviously my interpretation."

Ewell noted, “American music theory is based on the racist idea that whites are superior to POC, a sentiment stated explicitly by significant music theorists like François-Joseph Fétis (1784-1871) and Heinrich Schenker (1868-1935) in the nineteenth and early twentieth centuries.”  Schenker's graphic method of analyzing musical structure has been particularly important in music theory since the 70s.  (You can compare the importance of Schenker's approach to the importance of law and economics in legal scholarship.)  Ewell compares the hierarchy that Schenker finds in music to the hierarchy between races.  He points out that Schenker was a racist.  (which is true; it was a part of the conservative German ideology of the time).  Thus, the racism in Schenker's personal views transferred to his approach to music theory.  (Follow that?  Good, neither can I).

The Society for Music Theory immediately jumped on the Ewell bandwagon; Ewell gaslighted them. However, some Schenker followers fought back in a special issue of the Journal of Schenkerian Studies. While a few of the articles supported Ewell, most strongly criticized his presentation.  Timothy Jackson wrote, “Schenker . . . was no privileged white man. Rather he was a Jew in prewar Germany, the definition of the persecuted other. The Nazis destroyed much of his work and his wife perished in a concentration camp.”

The Society for Music Theory immediately condemned Jackson and the authors of the other negative articles as racist in a letter signed by 900 music theorists.  (here)  SMT capitulated in light of Ewell's address: "A public statement from the President, authorized by the Executive Board and in accordance with the Policy on Public Statements, that SMT acknowledges the following three points: (a) that American music theory is historically rooted in white supremacy, the racist idea that whites are superior to nonwhites, (b) that these white supremacist roots have resulted in racist policies that have benefitted whites and whiteness while disadvantaging nonwhites and nonwhiteness, and (c) that these racist policies have resulted in injustices suffered by BIPOC at all stages of their careers. Further, we call upon the President, with the authorization of the Executive Board, to apologize to all BIPOC who have suffered such injustices, without equivocation."

The criticism of Jackson and the Journal led to the Journal’s suspension and Jackson being barred from the Journal.  Jackson, in turn, sued some of his critics for defamation.

I have presented my criticisms to Ewell's article  in detail here.  In brief, I argued that  cognitive scientists have demonstrated that 1) the human brain does not operate in a manner that is consistent with social constructionism, the foundation of Ewell's theories, 2) tonality is universal, confirming that the use of tonality in music is not racist, and 3) Schenker's approach to analysis reflects how the brain processes music.

Others have criticized Ewell's logic.  Dr. John Halle, a composer and music theorist, criticized Ewell's ignorance of science.  (here)  He wrote, "While Ewell appears to be entirely unaware of them, the most elementary facts about perceptual psychology cited in 4 above supply “something else”. Namely, rather than being white, tonality, not only could be, but almost certainly is, a psychological universal. Hearing music according to a perceptual hierarchy of stability is a species property, deployed in organizing the pitched sounds we hear in much the same way as a “beat” is assigned by all members of our species to sufficiently periodic unpitched sounds. Our doing so is no more “a direct result of the power of colonialism and hegemony” than the attribution of three dimensional structure by our visual cortex, the semantic features of words, or predicate argument relationships and phrasal categories in all languages of the world."

Halle also noted the lack of scientific basis of the articles that Ewell cites in support of his arguments. For example, "Before discussing what these are, it’s worth correcting a minor error in Ewell’s text with respect to the misidentification of Robin di Angelo as “a scholar.” He noted that "Di Angelo functions as a corporate diversity consultant compensated by mostly Fortune 500 firms presiding over mandatory anti racist employee training sessions. More recently, the massive popularity of White Fragility has created a market for her public appearances and it appears that the bulk of her income is now derived from these."  More importantly, "her book White Fragility: Why It’s So Hard for White People to Talk About Racism [, which is] conspicuously deficient in citing peer reviewed academic work is far from a scholarly study, as others have pointed out. " He added, "Given the lavish corporate sponsorship of these “anti-racist training sessions”, there’s plenty of reason to view Di Angelo and Ewell’s fashionable anti-racism within the centuries long tradition of capital’s efforts to use race to divide and obliterate what they have always understood to be their main enemy: working class solidarity."

Robert Tracinski goes the farthest in seeing the dangers in Ewell’s approach: “but the broader motive is the same as Ellsworth Toohey's: to herd us all into a collective and make us think about everything in terms, not of the individual, but of the group. Just as with the supposed ‘anti-racists’ who want us to see ‘hard work’ and ‘rational thinking’ as ‘white’ values, so Ewell lists the following among his catalog of ‘euphemisms for whiteness’: ‘authentic,’ ‘civilized,’ ‘classic,’ ‘function,’ ‘fundamental,’ ‘genius,’ ‘opus,’ ‘piano,’ ‘sophisticated.’ Oh, and also ‘science,’ ‘theory,’ and the calendar, because I guess the Gregorian calendar is colonialist. We are not allowed to think of anything independent of the political dogmas of the moment or outside of a ‘racial frame’—and this is billed, in the final insult to our intelligence, as ‘anti-racism.’” (here)

Tracinski continued, “In that regard, notice what this ‘woke’ analysis accomplishes for its contemporary Ellsworth Tooheys: It allows them to elevate themselves by tearing other people down. They do not have to discover a new continent or unlock the secrets of the universe; they do not need to found a free nation or fight a war to free other men from bondage; they do not need to write a play or a poem or a symphony, or develop their own theories of music; they need merely point out the flaws of the people who did all of these things. All they need to be better than the best is to display their mastery of the latest catchphrases.” He concluded, “He fights Beethoven and Shakespeare (and Rockefeller and Morgan) because he wants people to think of themselves as small and weak and thus to allow themselves to herded into undistinguished collectives in need of a ruler—someone like him.”

Based on the above, one can see how Ewell bullied SMT into adopting his views.  By using antiracist theories like "White fragility" ("a state in which even a minimum amount of racial stress becomes intolerable, triggering a range of defensive moves"), Ewell made it almost impossible for anyone to disagree with him, especially in light of the events of last year.  Those who did, like Timothy Jackson, were ostracized by the group.  In other words, agree with me or get cancelled.

I do not want to see the same thing happen to legal education concerning law school standards reform.  As six present or emeritus holders of Sterling Professorships of Law at Yale Law School declared, "The new proposed requirements of standards 303(b)(3) and (c), to the contrary, are altogether different in kind for they attempt to institutionalize dogma, mandating instruction in matters that are unrelated to any distinctively legal skill, hence intruding on the right and obligation of every professor to determine what to teach in a class and how to teach it. Mandating the content of such courses misconstrues the accreditation function and what a successful institution of higher learning seeks to inculcate in its students: to teach them skills, but not to require students to adopt a specific world view. Institutions of higher education challenge students intellectually and provide them with the analytical capacities to think for themselves and reach their own conclusions."

Similarly, Professor Steven Solomon has stated, "However well-intentioned, I write to protest against your proposed standards. As an initial matter they constitute unconstitutional viewpoint discrimination. I have no doubt if they were adopted they would bring immediate lawsuit. Second, they are ill-informed and based upon invalid social science which has not been established. More specifically, your proposals are based on pseudo-science on race relations which has no valid backing."

In sum, law school accreditation standards should help create debate in the law classroom, not  dogma based on "pseudo-science on race relations which has no valid backing."

(Scott Fruehwald)

“Freedom is the freedom to say that two plus two make four. If that is granted, all else follows.”
George Orwell, 1984

September 22, 2021 | Permalink | Comments (0)

Tuesday, September 21, 2021

FIU Is Number 1 Again

For the seventh year in a row, Florida International University has attained the highest bar pass rate for first-time takers on the Florida July bar exam.  Miami Herald, Want to Attend Law School in Florida? These Have the Highest Bar Passage Rates

"The Florida Board of Bar Examiners released the results Monday for the most recent Bar exam administered in late July among Florida’s law schools. The results show the law schools of Miami-based Florida International University and Coral Gables-based University of Miami outperformed all other Florida law schools in their percentage of people who passed the Bar exam."

"FIU, the largest public university in South Florida, led the rankings of Florida’s 11 law schools with a whopping 88.8% passing rate. Out of the 116 FIU graduates who took the exam this summer, 103 passed it."  "The statewide passing rate was 71.6 percent."

Read more here:

“I’m just so very proud and impressed by our Bar takers,” said FIU law dean Anthony Page. “They have shown an enormous amount of resilience and persistence and legal skill given all of the travails of the last year.”  Page credited FIU’s success to its Academic Excellence Program, which offers students optional courses about cognitive learning science.  “The key is it’s not about memorization or Bar preparation; it’s about teaching students how to teach themselves or how to more effectively learn,” he said. “We’re teaching people how to be better learners, which frankly, will make them better lawyers.”

Update: FIU is a majority minority school with a 2020 makeup of 330 minority students out of a total of 509.  As I said in 2013 (How to Help Students from Disadvantaged Backgrounds Succeed in Law School), minorities can pass the bar if a school uses the proper teaching techniques based on cognitive science.

Read more here:

(Scott Fruehwald)

Read more here:

How to Help Students from Disadvantaged Backgrounds Succeed in Law School

September 21, 2021 | Permalink | Comments (0)

Wednesday, September 8, 2021

Law School Rankings and The Impossibility of Anti-Racism: A Short Critique

I have now had a chance to carefully read Law School Rankings and The Impossibility of Anti-Racism by Rory D. Bahadur.  No matter how much I dislike the U.S. News law rankings and like to see them debunked, I find Bahadur's article to be unconvincing.

Ironically, the problem with this article is exactly what it accuses others of--the presence of  the confirmation bias.  "Confirmation bias is the tendency of people to give more credence and validity to information consistent with their beliefs or hypotheses." (his definition)  Bahadur accepts articles that agree with his thesis uncritically, and he ignores all articles that attack his theories. True scholarship closely examines both positive and negative support, which this article does not do. If you can't explain the negative articles, you shouldn't publish the article.
For example, Bahadur cites scholarship about implicit biases, but he ignores the fact that they have been strongly criticized by numerous cognitive and social scientists.  (hereIt is not scholarship when you ignore the other side; it is naked ideology.
Did the Journal that is publishing this article do a cite check? When I was on journal, we were required to check negative cites.  Shame on that journal for a poor job.
(Scott Fruehwald)
P.S. Ignoring negative evidence is called the Semmelweis reflex.


September 8, 2021 | Permalink | Comments (0)

Monday, September 6, 2021

Synthesizing Rules

One of the most important skills that law students need to learn in is how to synthesize rules from cases.  Yet, studies have shown that second- and third-year law students are not good at synthesizing rules.  I have heard two conference presentations by Professor James Stratman in which he has stated that, while second- and third-year law students are generally proficient at applying a single case to a set of facts, they are poor at synthesizing rules and applying several cases to a set of facts.  (see also here at 4)  This deficiency has developed because, except for perhaps a half a class in legal writing, synthesizing rules is not usually taught in law schools.  To help students develop this skill, first-year professors need to drill this skill, just like they do case analysis.

Synthesizing rules is important because the common law develops on a case-by-case basis.  One judge decides case A.  Another judge uses that case to decide case B, which is on similar facts.  The next judge then relies on cases A and B to determine case C, which becomes a new precedent.  In other words, each new case adds to the story of the rule.

Synthesis in the law involves synthesizing rules in connection with a set of facts.  "Rule synthesis is the process of integrating a rule or principle from several cases."  (Paul Figley, Teaching Rule Synthesis with Real Cases, 61 J. Leg. Educ. 245, 245 (2011))  More specifically, "Lawyers begin this process of synthesis by first identifying the pieces of authority relevant to a legal issue and then fitting these pieces together to determine the overall analytical framework they reasonably support."  (Jane Kent Gionfriddo, Thinking Like A Lawyer: The Heuristics of Case Synthesis, 40 Tex. Tech L. Rev. 1, 4 (2007))  Most importantly, "Only in making sense of all of the cases will a lawyer be able to formulate a clear picture of the law to determine an appropriate solution to the legal problem at issue."  (Id. at 6)

There is not just one formula for synthesizing a rule.  How you synthesize a rule depends on the materials being synthesized.  Sometimes the materials will produce a single factor; other times the synthesized rule will comprise two or more factors.  Often, one case will provide a framework for the rule with other cases filling in.  Other times will you have to combine cases to produce the rule.

Learning case synthesis begins with synthesizing a single-factor rule.  First, one must find all the relevant cases on that issue in relation to the facts.  This usually means assembling all the mandatory authority from the governing jurisdiction.  You must also be able to understand what cases belong together (grouping).  Once you have determined the relevant group, you should carefully read the relevant cases, making sure you fully understand their reasoning, both explicit and implicit.

Synthesizing a single factor requires that you blend the cases into a coherent whole.  In other words, your synthesis must be consistent with all the case holdings and reasoning.  To synthesize a single-factor rule, look at the outcome of each case for that factor and how the similarities and differences among the facts and reasoning of those cases affected the outcomes.

Synthesizing multiple-factor rules is similar to synthesizing single-factor rules, except you first must determine what factors the cases require to establish a test (there is a preliminary grouping stage into factors).  Separate out the different factors.  (A chart might help you to do this).  Then, for each factor, look at the outcome of each case for that factor and how the similarities and differences among the facts and reasoning of those cases affected the outcome for that factor. 

The final step in a synthesis is to test your synthesis.  Have you accounted for all the relevant cases in your synthesis?  Are the cases relevant to your facts?  Is your synthesis convincing?  Is there an alternative synthesis?  If so, is the original or alternative synthesis better?  Has your synthesis produced a clear rule that can be applied to your facts?

Of course, the above assumes that the law in real life is consistent.  It isn’t. You can’t always reconcile all cases on a particular point.  Judges sometimes don’t blend in a previous case, and sometimes they miss or misunderstand an earlier case.

There are a number of exercises on synthesizing cases in Chapter Five of my book, Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals (ABA Pub. 2013, 2020). 

(Scott Fruehwald)

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September 6, 2021 | Permalink | Comments (1)