On October 22, 2021, Professor Jon D. Michaels & Dean
David L. Noll posted Legal Vigilantes and the Institutionalization of
Anti-Democratic Politics on the Social Science Research Network. See <https://ssrn.com/abstract=3915944>.
On page 23, the two law professors wrote: “Kyle Rittenhouse, the
heavily-armed murderer of two BLM protestors, has been hailed as a
heroic vigilante . . . .” (emphasis added) In support of the position they took
at that time, they cited an article by Paige Williams in The New Yorker.
See Seth Barrett Tillman, ‘Rittenhouse, Murder, and the Use of “See”
as Direct Support in Legal Writing,’ New
Reform Club (Nov. 21, 2021, 7:47 AM),
<https://reformclub.blogspot.com/2021/11/rittenhouse-murder-and-use-of-see-as.html>
(reproducing extracts from Michaels and Noll’s original 2021 publication).
On February 14, 2022, Michaels and Noll posted a new draft, appearing at the same Social Science Research Network link: <https://ssrn.com/abstract=3915944>. The revised paper is now titled: Vigilante Federalism. [The Michaels and Noll’s paper is now marked as forthcoming in Cornell Law Review.] At page 35, they now write: “Kyle Rittenhouse, who shot and killed two BLM protestors, has been hailed as a heroic vigilante . . . .” (emphasis added) And again, they support their position with a citation to Williams’ article in The New Yorker.
One would think a shift from “murderer” to “shot and
killed” might call for some explanation. “Murderer” is a term of opprobrium—it carries
with it the judgment that the person acted illegally, or acted without moral
justification, or both. “Shot and killed” is less judgmental. This latter
characterization leaves open the possibility that: the defendant was not a
wrongdoer, or the defendant acted with a recognized legal defense, or both. In other
words, the difference between murderer and shot and killed is no small
thing, and an exploration of the authors’ shift in position might be part
of a thoughtful publication.
It strikes me that there are several possible explanations for the authors’ shift in position. Here, I discuss two of those possible explanations.
First, it is possible that the authors have not
shifted their position at all. Rather, they have just changed their tack or tactics,
if only to avoid their being defendants in a defamation action brought by
Rittenhouse. In other words, their opinion of Rittenhouse has not changed. If so, their lack of transparency and directness with the reader, would seem to
undermine some of the worthiness for publication.
Second, the authors now understand, in light of the
jury’s verdict, that their original position lacks clear support. Their new
position is accurate, but it refrains from making any direct judgment about the
rightness of Rittenhouse’s conduct. Perhaps, the authors believe that
Rittenhouse may be a legal wrongdoer, and he will or would be judged a wrongdoer under
the more lenient civil standard. In other words, the authors are acknowledging
that they do not know if Rittenhouse acted illegally or morally wrongfully. And
they are leaving it to the reader to figure out if Rittenhouse’s conduct was
illegal or otherwise wrongful. But if they cannot reach a judgment on the
matter, and if they are unwilling to affirm their own lack of clarity, then why
write on the topic? And, why do so a second time? Would it not make more sense
to acknowledge that the situation is less than fully clear?
What the authors could have done—is to acknowledge
that legal academics (and academics generally) suffer from all the limitations
the rest of humanity suffers from.
Academics make mistakes.
They join in group think.
They retract.
Sometimes they do not even notice that they are retracting.
And they cover their tracks.
It is not a very pretty picture.
and,
Seth Barrett Tillman, ‘Rittenhouse, Murder, and the Use of “See” as Direct Support in Legal Writing,’ New Reform Club (Nov. 21, 2021, 7:47 AM), <https://reformclub.blogspot.com/2021/11/rittenhouse-murder-and-use-of-see-as.html>.
4 comments:
Not to mention that this "simple" substitution undercuts their entire justification to reference "vigilantism" in the title.
Luckily, the internet never forgets.
Kyle, please add Jon D. Michaels, University of California, Los Angeles - School of Law and David L. Noll, Rutgers Law School, to your defamation suit.
How can they be unsure if Mr. Rittenhouse acted illegally if he was tried for murder and found not guilty by reason of self-defense in court? According to the courts he acted legally and the matter is closed.
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