Our problems remain epistemological.

Sunday, August 15, 2021

Academics’ Criticizing Third-Parties


A few years ago, Joshua Matz, a Washington, DC litigator, criticized my professional competence and personal integrity in a blog post on Take Care Blog. Matz wrote: “It’s hardly an impressive defense [by Tillman] to mislead so dramatically in the NYT . . . .” Josh Matz, Foreign Emoluments, Alexander Hamilton & A Twitter KerfuffleTake Care Blog (July 12, 2017), <https://takecareblog.com/blog/foreign-emoluments-alexander-hamilton-and-a-twitter-kerfuffle>. At the time, it seemed to me that Matz was just trying to gin up support for his briefs in the Emoluments Clauses cases. So I did not take his criticism to heart. Litigation can drive lawyers to say and write hyperbolic things. In any event, I had cause to address his points from other quarters.[1]

What did strike me as distinctly odd about Matz’s post was his casual willingness to attack third-parties who were wholly unconnected to the Emoluments Clauses dispute, that is, non-parties who had nothing to say about the merits of the arguments which had divided us (Matz and me). For example, Matz wrote: “even if [the Tillman-authored texts] actually offered any meaningful analysis (which they don’t), all three [Tillman-authored] texts that [Professor] Blackman cites are low-profile academic articles, read by a small and specialized audience.” Now, as Matz understood, one of my publications was a British peer-reviewed law journal. See Josh Matz, Foreign Emoluments, Alexander Hamilton & A Twitter Kerfuffle, Take Care Blog (July 12, 2017), <https://takecareblog.com/blog/foreign-emoluments-alexander-hamilton-and-a-twitter-kerfuffle> (at note 1, Matz cites to my 2016 peer reviewed law publication). But see, e.g., Joshua Matz et al., [Plaintiffs’] Brief in Opposition to Petition for Writ of Certiorari, Trump v. District of Columbia, Supreme Court of the United States Case No. 20-330 (Dec. 14, 2020) (citing, in 2020, to a paper authored by Professor John Mikhail, which appeared on the Social Science Research Network in 2017, and was not in 2017, or at any time since, published in a traditional journal), <https://www.supremecourt.gov/docket/docketfiles/html/public/20-330.html>. If Matz had said, Tillman’s article was not any good, and this is the reason why it is not any good …, then I would have no reason to complain, and my proper recourse would have been to write a response (which is something I have done from time to time). But Matz was not really attacking (or, better, not just attacking) my scholarship, he was attacking the venue I had published in—a British peer-reviewed law journal, which had published my article well prior to Trump’s surprising 2016 election. Here, Matz was characterizing the venue as “low profile” and as one having only “a small and specialized audience.” Why attack the journal?

I had thought that this sort of mean-spiritedness directed to strangers and third-parties was the exception, not the rule. But maybe I was wrong. Maybe I only first noticed this sort of criticism in 2017 because it had been directed at me? Consider Professor Mark Graber’s post on Balkinization. See Mark Graber, A “Review” of Justice Breyer’s “Manuscript,” Balkinization (Aug. 14, 2021, 6:06 PM), <https://balkin.blogspot.com/2021/08/a-review-of-justice-breyers-manuscript.html>. This post leaves me deeply uneasy, and I say this fully cognizant that I have consistently criticized Justice Breyer’s judicial opinions and scholarship over many years.[2] 

Apparently, Breyer’s manuscript will appear as a Harvard University Press (“HUP”) publication. Professor Graber thinks that HUP ought not publish Breyer’s manuscript in its current form. Graber’s chief criticism is that Justice Breyer’s citations are too few and insufficiently developed, which shows that he failed to engage the most relevant political science literature. That is a fair merits-based criticism. Still, Graber wrote:

[G]iven that almost every sentence of the text has been subject to scholarly investigation, it would be nice if Harvard University Press as opposed to, say Regent, actually demanded some evidence of engagement with the literature.

Could you imagine being a principal, editor, or other employee at Regent Press? (Or, is this, possibly, Regent University Press? What did Regent do to deserve Graber’s aside?) If Graber had merely stated that, given HUP’s mission and its traditional standards, Breyer’s manuscript was a poor fit, that would have been the sort of criticism within everyday academic norms. But adding in “as opposed to, say, Regent,” comes across as harsh—an unnecessary attack on a stranger to the publication which Graber is reviewing. The fact that Graber might have done this inadvertently does not exactly make the situation more acceptable—arguably, it makes it worse.

Then there is this:

Breyer as is his wont, engages with none of this literature. Instead, without citing any evidence he states, the court “played an essential role in ending legal segregation,” that the Court [with other political actors] . . . won a majority [sic?] victory for constitutional law, for equality, and above all for justice itself,” and that the decision “helped to promote respect for the Court and increased its authority.” Breyer concludes “I cannot prove this assertion. But I fervently believe it.” “Credo absurdum,” Latin scholars might observe.

. . . .

In fairness to Justice Breyer, I note that he has a day job that may take up a good deal of his time, even though that day job comes with more research assistance than any academic could ever dream of. The main lesson to take from the problems with The Authority of the Court is that one cannot successfully perform the function of Supreme Court Justice and publish a major university press book that scholars ought to take seriously. Still, the book does demonstrate a good deal of native talent. If submitted as part of an application, I believe any major graduate program in political science would be happy to take Justice Breyer on as a student. The University of Texas comes to mind, as does Princeton. Julie Novkov runs an underappreciated program in SUNY, Albany. Justice Amy Coney Barrett, who I fear has a book of similar quality forthcoming, might consider joining Justice Breyer.

(emphasis added) (citations omitted). 

Graber criticizes HUP and Justice Breyer for publishing his (that is, Breyer’s) honestly held views, albeit absent “evidence.” Then Graber criticizes Barrett based on his (that is, Graber’s) “fears” in regard to a forthcoming Barrett publication which Graber has not yet seen? What happened to the “evidence” standard?

Can I be the only person who sees a problem here? If this is a good thing, I am missing it.


[1] Declaration of Seth Barrett Tillman, Lecturer (Exhibit D), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae Judicial Education Project’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017) (Daniels, J.) (filed by Professor Josh Blackman et al.), ECF No. 85-5, 2017 WL 7795997, <https://ssrn.com/abstract=3037107>.

[2] Compare Julian Ku, More on Breyer v. ScaliaOpinio Juris (Jan. 23, 2005, 6:07 PM), <http://opiniojuris.org/2005/01/23/more-on-breyer-v-scalia> (quoting Tillman on Breyer)with Josh Blackman & Seth Barrett Tillman, Justice Breyer made it impossible for Congress to impeach territorial officers for accepting bribesBalkinization (July 14, 2020, 1:45 PM), <https://balkin.blogspot.com/2020/07/justice-breyer-made-it-impossible-for.html>. 

See generally Seth Barrett Tillman, “Karl Popper’s Falsifiability: The Foreign Emoluments Clause,” South Texas College Law Review Symposium: The Foreign Emoluments Clause: From President Washington to President Trump (Sept. 8, 2017) <https://www.youtube.com/watch?v=I38aoslis88> (at 35:45ff).

Seth Barrett Tillman,  Academics’ Criticizing Third-PartiesNew Reform Club (Aug. 15, 2021, 8:38 AM), <https://reformclub.blogspot.com/2021/08/academics-criticizing-third-parties.html>.


Tom Van Dyke said...

Undoubtedly this happens on and by the right as well, but I have found it has become a First Principle of the left.

"13. “Pick the target, freeze it, personalize it, and polarize it.” Cut off the support network and isolate the target from sympathy. Go after people and not institutions; people hurt faster than institutions."--Alinsky Rules for Radicals

Fat Man said...

They are cancelling Breyer because he won't do what they want -- i.e. retire so they can replace him with Kimberly Crenshaw.

Breyer doesn't care. He has everything and they cannot affect it.

HUP doesn't care. Controversy sells books.

They should watch out because Breyer is in a position to give them the back of his hand. If he does that, it's gonna hurt.

SDaly said...

The swipes at third parties, in all instances you cite "conservative" third parties, have two functions. The first is to identify and reinforce the idea that the identified third parties are outside the bounds of acceptability to the political side the author inhabits. They need to constantly reinforce unacceptability to anyone who reads the piece. The second is to signal to fellow liberals that, whatever criticism the author may be making of someone nominally on the left, the author remains a steadfast member of the left and has not drifted over to the "icky" "conservatives."