Wednesday’s Child: Bullshit Titles

One low grade, but pervasive, source of woe for today’s academic is bullshit titles.

The leading works on the philosophy of bullshit are Harry Frankfurt’s path-breaking, On Bullshit and G.A. Cohen’s brilliant essay, ‘Complete Bullshit’. A comment on each before I expose another kind of bullshit.

For Frankfurt, bullshit is characterised by its intentional indifference to the truth. Bullshit may be false, or vague, but it’s all the same to the bullshitter, who doesn’t care whether what he says is true or false, so long as he is filling the airwaves. (Frankfurt notes that there is a lot of such bullshit in politics, but I hear plenty in seminars too.) Cohen’s bullshit is non-intentional. It is a kind of hopeless obscurity—bullshit is unclarifiably obscure. Operationally, one can test for Cohen bullshit by adding (or removing) a negation sign to a proposition. If that makes no difference to its plausibility, then it is probably just bullshit. (Try this one at home: ‘Performativity cannot be understood outside of a process of iterability.’)

I believe that there is also a third kind of  bullshit, though it is probably best not to call it Green Bullshit. This bullshit is familiar from a certain kind of book or article title.   A couple of examples should be enough. Since I don’t want to ruin anyone’s career (including my own) I’ll just make up them up.

  • (A) Agency, Structure, and Power: The Milk-Marketing Board of Ruritania, 2007-2009
  • (B) Realising the Juridical: The Roman Law of Dogs in Later Imperial Sources

These titles are, in an obvious pre-theoretical sense, utter bullshit.

Now, a casual observer might think it is only the title before the colon, what I will call the ‘ante-colonial trope’, that is bullshit.   A tempting hypothesis. Certainly the terms ‘structure’ and ‘juridical’, in the senses of (A) and (B), often suffice for a diagnosis of bullshit.   But the deeper bullshit here consists in the relation between the ante-colonial trope, with its clouds of absurd puffery, and the subtitle, the little intellectual fart, that follows. Bullshit titles thus exhibit a kind of relational bullshit.

Note also that the subtitle, while suggesting a work that is careful, controlled—small, even—itself need include no bullshit. Since bullshit titles, in the present sense, are relational, you may think that a trivial point. How could there be relational bullshit in one of the relata, taken its own? But this ignores the possibility of nested bullshit relations, and the possibility that the subtitle itself might also contain non-relational bullshit of the Frankfurt or Cohen sort:

  • (C) Queerying the Performative: The Iterability of Irritable Drag Queens after Obergefell v Hodges

It is important to distinguish bullshit titles from merely stupid titles (Men are from Mars, Women are from Venus), cutesy titles (Justice for Hedgehogs) and clunky titles (Prenuptial Agreements and the Presumption of Free Choice: Issues of Power in Theory and Practice). Clunky titles in particular are sometimes mistaken for bullshit. The distinction is subtle, but one indicator is that, in the clunky, what sounds like an ante-colonial trope normally appears in retrograde position, and does not have the fart-concealing function of the classic trope. Instead, it merely functions as a lame comment on, or irrelevant elaboration of, the main title.

I conjecture that there are relationships, causal and perhaps conceptual, between truth-avoidant bullshit and obscurantist bullshit on the one hand, and relational bullshit on the other. But that requires further research. So too why there is so much bullshit (of all kinds, really) in the social sciences and in law. Perhaps readers can help with that.

For now, following in the footsteps of the Buddha, ‘I teach only suffering and the end of suffering’. Extinguishing the special kind of suffering that is bullshit is complex, but here is a simple path to reducing it. No subtitles. Ever.

In particular, never allow doctoral students to use subtitles. Either there is good reason to study three years of decisions of the Milk-Marketing Board or there isn’t. (By ‘good reason’ I mean dissertation-wise. It’s a low standard.) If there is, they should have the courage of their convictions and make the subject their title. If there isn’t, do not allow them to waste their intellectual careers on trivia and then package it up in a bullshit title. That just brings more woe into the world.

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Gender and the Analytical Jurisprudential Mind

Nietzsche said that when ‘marching against the enemy’ both bad music and bad reasons sound good.

Joanne Conaghan’s book, Law and Gender, marches against several enemies, one of which is ‘the analytical jurisprudential mind’. I am offered as a case study of that psychopathology. Her discussion of my work on marriage reveals the ‘methodological limitations which characterize [such] jurisprudential analysis,’ namely:

the abstraction of legal concepts from the framework in which they operate and the tendency to treat them as having a fairly fixed content over time and space; the unarticulated normative prioritization of some features… over others…, evidencing the presence of evaluative choices which problematize any claim to be rendering a descriptive or value-neutral account; the overlooking, or at least unexplained disregard, of contra-indicative evidence…. “(Law and Gender 176)

Conaghan says that it is because of such ‘limitations’ that books of analytical jurisprudence—books like The Concept of Law, The Pure Theory of Law, The Authority of Law—fail to see the pervasive relevance of gender to theories of the nature of law.

Her arguments are embarrassingly weak, for reasons I explain in this new paper.  Her errors would matter little were it not for the possibility that law students might think that to be feminists they need to join in the march, singing along to bad music and repeating bad reasons. My paper concludes:

“In the end, jibes about the ‘analytical jurisprudential mind’, like jibes about ‘the criminal mind’—or for that matter the ‘female mind’—express little more than prejudice.   As vices go, an intellectual prejudice is a minor thing. Still, it will have victims. Its main casualties will be beginning students, especially young lawyers curious about things like the social construction of gender, the evaluative character of jurisprudence, the subordination and silencing of women, or social inclusion and legal equality. Will they learn that some of the best contemporary thinking on these themes includes work by analytic philosophers, and even analytic legal philosophers? Will they discover that this work is sensitive to context where relevant, that it is alert to the ways values enter analysis, and that it is literate about social facts? Not if they accept Conaghan’s caricature. Students taught what the ‘analytical jurisprudential mind’ must think about some issue may not feel inclined to spend time discovering what any particular writer actually does think. They are as likely to set about building separation walls, to guard against intrusions by gender-excluding abstractions, smuggled-in values, and empirical biases—unlawful migrants to the empire of law and gender, disguised in nit-picking arguments.“

Feminist philosophy has long since given up the idea that ‘analytical’ methods are alien or hostile to feminism. The excellent work of philosophers like Elizabeth Anderson, Sally Haslanger, Rae Langton, or Mary Kate McGowan demonstrate the power of these methods and their importance to feminism. Why is feminist legal scholarship of Conaghan’s sort stuck in a time-warp of the 1980s,  repeating the old jingles of post-modernism and chanting the dull chorus of ‘social context’?

It is time for feminists in law to reconsider their need for an enemy, or at least find a new one. They will be astonished at how bad was the music they used to march to, how poor the reasons.

Wednesday’s Child: Academic Over-production

Today’s woe is scholarly over-production.

No one keeps up with the literature. There is too much. Some of the causes are well known. In addition to an over-supply of people (which increases the number becoming academics), there is institutional pressure to publish almost anything. We end up with what my former colleague Harry Arthurs calls a ‘production-driven research culture‘. Enabling this, there are also too many journals—especially in the US, where student-run law reviews proliferate, pumping out oceans of poorly chosen work that is then often edited so as to make bad writing even worse.

Less well understood are two internal factors.   Young academics seem increasingly keen to adopt  a ‘line’: an outlook capable of generating an article on almost any subject. In addition, the Facebook generation seems addicted to ‘likes’: watching their SSRN or Google Scholar hits rack up, never mind whether anyone is reading or engaging with their work. A word of woe about each of these.

The ‘Line’

I don’t blame rookies for working a ‘line’. I have seen promising young scholars fail to get appointments because they were thought to lack one—‘She seems smart; but I don’t see what her line is’.   Or, ‘He wasn’t very responsive. I asked him what his view implied for my work on inter-state trucking law and he had nothing to say.’

Law and economics is a famously productive defence against such stupid criticisms; so too are the utilitarian and neo-Kantian machines that clank and chug along in their charming, steampunk, ways. Whatever their demerits, they have the merit of never leaving one without an opinion, and of leaving no doubt in others’ minds about what one’s ‘line’ is.

But there is a downside. Probably, no such ‘line’ could be faithful to the law we have, or to the law we ought to have. And if you have a ‘line’ you will need self-restraint in knowing when it isn’t worth pursuing. I imagine people thinking, ‘But I’m sure you are all wondering what my theory has to say about the Roman law of dogs.’ Actually, no; we aren’t. We know what your theory has to say about things of general interest: that is why it is a ‘line’. And what matters—to those who care—about the Roman law of dogs is the doctrinal lore. We already know that if dogs’ happiness is happiness then we should count it, and if dogs matter because they make people happy, then we should optimize the distribution of dogs.   And we already know that, outside a public order of Right no one really owns a dog. They may have dogs, yes (and the dogs may make them happy)–but they do not have their own dogs.   Like tic-tac-toe, these games are fun to play, but only with a child.

Working a ‘line’ also tends to generate long articles. Before you’ve spun your story, you can have twenty pages on the history of the ‘line’ and, after you’ve done it, you can consider twenty pages of objections, including those that would only occur, as Bernard Williams once put it, to the malicious or the clinically literal-minded.   Best of all are objections coming from a different ‘line’. ‘Lines’ live off each other, symbiotically. This produces still more writing.

The ‘likes’

Followers, views and downloads are the new academic’s equivalent to ‘likes’.   They live in hope of the SSRN message that tells them the paper they posted last week, in the dead of the summer, scores a top-ten download. Or that shows they have had viewers, or even followers, in Bhutan.

Now, no one can ‘like’ what you don’t write. And once written, you need to get it out anywhere and everywhere.   The otherwise admirable SSRN enables bad behaviour here. It is like taking whisky to an AA meeting. Since there is no substance editing in its journals, people need to rely on their internal editors to exercise restraint.  Few manage.

Often, there is often no editing of any kind. For example, In current number of the Philosophy of Law Ejournal (Vol. 8, No. 125: Aug 18, 2015) there are 12 papers, only two of which are even about the philosophy of law. The Social and Political Philosophy eJournal is as bad, or worse. Now, I do not really think that their authors imagine that the following papers are any kind of philosophy: ‘‘It’s Not for a Grade: The Rewards and Risks of Low-Risk Formative Assessment in the High-Stakes Law School Classroom’, or ‘What leads to Homeless Shelter Re-Entry: An Exploration of the Psychosocial, Health and Contextual Demographic Factors’. More likely, they were unable to resist ticking every conceivable box on the upload form, hoping for one more ‘like’ from someone, somewhere.

I am not sure how to cope with the pressures of the ‘line’ and the ‘like’.  And I don’t think it is always blameworthy to yield to them.  But in addition to external pressures to over-production it is certainly producing a tragedy of the intellectual commons.

Jurisprudence: stop that right now!

The reader who slogs through the 52 pages of Dan Priel’s latest critique of legal philosophy will get a good survey of some of the (fairly casual) remarks its practitioners have made about the ‘methodology’ of jurisprudence.  Spoiler alert:  but they won’t learn anything about how the subject might be done.

Once again, Priel tells everyone else their subject is empty or question-begging.  He seems to flirt with the idea that there is a sociological jurisprudence that is not only a sociology of law, but a sociology of the nature of law (to the extent that law has a nature).  In any event, we are all to stop ‘conceptual analysis’.  What we are to start is not clear, though it seems to have something to do with measuring and counting–but without any preliminary worries about what counts as what.

The best defense of this proposal would simply produce the goods. We should be given access to Priel’s  measures, data, models, and calculations that explain what law is.  We can then check the validity of his measures, replicate his analyses, verify his calculations, and so on.  (It has been a long time since I calculated a chi-square, but give me an afternoon and I’m sure I can get back up to speed.)

But while scolding analytical jurisprudence for not following the lead of the ‘many philosophers’ who find illumination in things like cognitive science and psychology, Priel coyly keeps whatever findings he has to himself.  Or is his work–and its demand for empirical evidence–a failure by its own standards?

Perhaps not.  When we arrive, finally, at p 52 we discover that it has all been an introduction to a prolegomenon to a preliminary to a research programme.  Its only positive offering is that we should stop reading HLA Hart’s book The Concept of Law 

A good first step would be to stop the unprofessional practice of reading with veneration, and perhaps at all, the book most responsible for the misguided conceptualist orientation that dominates contemporary jurisprudence.’

I admit to having hoped for more than a ‘first step’ in fifty pages. In any case, Priel’s step has been taken many times over.

Many academic lawyers, and most legal sociologists, show no signs of having read Hart’s book at all  (or of having understood it if they have).  The first step has been taken. So what’s holding up progress?  It isn’t as if there is a  licensing board in Oxford’s High Street, or in New York’s Washington Square, that must approve all research in legal sociology.  Just do it!

There is a good piece of sociology of knowledge waiting to be written about why some academic lawyers feel so strongly that the only thing stopping them from doing what needs to be done is that other people are doing something else.  I’m not sure what explains this, though I do have some conjectures.