Self-help and Free Speech

It is important that speech (along with written communication and artistic expression) be fairly free.  By ‘free’ I mean at least from governmental and other quasi-official constraint, and by ‘fairly’ I mean at least to the extent that it does not constitute fraud, defamation, incitement, group hatred, and the like.  Why? For a number of overlapping reasons that do not add up to anything worth calling a ‘theory’ of free speech.  Speech should be free because: it helps in the quest for reliable knowledge, because it  supports good government, and because it serves individual development and autonomy.   Also (marginally) relevant is the fact that speech that is forced, whether a confession extorted by threat, or a teleprompted lie bought with bribes, tends not to be very interesting as speech.   Together, such considerations support the ‘free speech principle’, a principle that we invoke and contest as such, as a principle of political morality.

Most of the fair and feasible means of protecting speech are already well known.   But once again, there is nothing here worth calling  a ‘theory’.  In one society, a judicially enforced bill of rights may prove vital, in another plural and competing media may be more important, in a third, the willingness of intermediary institutions (professions, churches, universities etc.) to silence the silencers may be key.  And always and everywhere political culture is hugely important.  As we see now in the US, in Poland, and in Hungary, when important political actors, including  senior judges, will not or cannot make good faith efforts to protect speech,  and instead use the principle merely for ideological money-laundering, set to whatever spin cycle their masters demand, no institutional remedies can be counted on to improve things.

But what about self-help?  Two versions of this idea are worth considering.  The first is a matter of hardening one’s defenses.  Along with the Stoics and Jesus, the Buddha says that, even when subject to abuse, we should often turn the other cheek.  We read in the Dhammapada, ‘As an elephant in battle bears the arrow shot from a bow; I will endure insult; For many people have poor self-control.’  Getting angry will often make you unhappy; trying to get even will keep you very busy.   Of course, none of these texts or teachers intend that we should put up with anything and everything.   But before returning fire, it is worth at least considering whether something is an offense against us or is merely offensive to us; it is worth learning the difference between something that is genuinely harmful to individuals or groups, and something that is hurtful to them.  When silencers learn that the elephant can bear the arrow, perhaps they will aim elsewhere or, if we get lucky, lay down arms and proceed by other means.

The other aspect of self-help is more complex.   To silence speakers one needs to find the target.  So it is tempting to think that speech must be more free when speakers are harder to find, for instance, when they are anonymous.   Especially in social media and the rest of the online world, anonymous comment is the norm.   Perhaps some people think of Twitter as the acme of free expression.   But Twitter should give us pause.  What better example of the Buddha’s glum warning, that ‘Many people have poor self-control’?   The availability, and scalability, of  anonymous comment does allow people otherwise at risk of being silenced to get their message out.  But anonymity also weaponizes poor self-control: fraud, incitement, hatred, and defamation–to say nothing of brutality, self-importance, and prideful ignorance– are everywhere that anonymous comment is standard, and it is not clear that what we innocently call the online ‘platforms’ have the means, let alone the will, to cure this.

I’m of two minds, then, when I read that my distinguished colleague Jeff McMahan plans to establish an online Journal of Controversial Ideas where anonymous authors can boldly set out their conjectures and refutations without fear (and, for that matter, also without favour–I can’t see the UK government rewarding anonymous research.)   What then is to stop the JCI becoming a high-brow, polite, version of Twitter: poor self-control expressed in sentential calculus, or blind hatreds ‘proved’ by transcendental arguments or pseudo-Darwinian fairy-tales?  The answer seems to be: peer review, up to the usual scholarly standards.   But we’ve  seen reason to worry about those standards.   Moreover, if the authors are anonymous, how can we know whether the editors are publishing only their students, colleagues, or cronies?  What if they are silencing  people they think we’ve all heard enough of?   And if that is what they are doing, the editors may be engaged in local, mini-, violations of free speech. Of course this is not comparable to governments prohibiting sex-education, or requesting teachers to report on whether and how they are teaching about Brexit.  But it is the kind of thing that the government thinks is wrong with universities.  In my own field, one of the best journals mostly publishes work by: those who have already published in that journal, those who were taught by those who have already published in that journal, those who have slept with anyone in the first two groups, and by members of the editorial board.  (Some of this work is excellent, by the way.)  Moreover, if someone wants to present in academic dress an ‘argument’ that homosexuality is an ‘intrinsic moral disorder’, or that the gender pay-gap expresses women’s ‘choices’, I think it would be decent of them to actually own the argument.

So I’m left with reservations.   I also confess to wondering what the problem in universities actually is that it calls for anonymous journals.  Unlike Jeff  (and unlike our current government), I do not see a general, serious threat to free speech in our universities, though I agree that it is the case in some departments and perhaps in a few institutions.  Nor do I accept his observation that, ‘The threats from outside the university tend to be more from the right. The threats to free speech and academic freedom that come from within the university tend to be more from the left.’  The serious risks to free speech in universities are nearly all from the right.  Since Jeff and I teach at the same University, and since I know we share roughly the same concepts of ‘right’ and ‘left’, Jeff must have a different idea than I do of threats ‘from within the university.’  He must be thinking of the fairly powerless, if noisy, student groups, and of invitations denied people who have no right to our platforms in the first place.   I am thinking of senior administrators, of fundraisers, and of those who manage the university’s real property.  These people have real power, and everywhere I have worked some of them have not been afraid to use it, even if doing so leads to clear violations of free speech (and of academic freedom).

 

 

 

Oxford needs quotas

I’m on sick leave, and so missing the delicious pleasures of Schadenfreude.   My colleagues will shortly begin interviewing teenagers to decide who should get one of the  few places to study law here at Oxford.  I say ‘Schadenfreude’ because, owing to seniority and other things, the closest I ever get to undergraduate admissions these days is dining with colleagues who, over claret at High Table, moan about what an awful job theirs is: having to choose which students they would quite like to teach, and  which ones are then most likely to go to careers at the Bar or in England’s judiciary.

My colleagues mean well.  Most of them mean better than I did when I was charged with selecting England’s elite-to-come, years ago.   There is now more centralization and standardization of interviewing than when I did it.  There is better training;  almost everyone is alert to  the possibility of unconscious bias.  (Having completed their online training, none of my colleagues is conscious of any unconscious bias on their own part.)  There is better institutional outreach, and more evidence that the senior administration are serious about these issues.  There has been real, non-negligible, improvement.

Still: however you slice or dice it, year on year, in subject after subject, Oxford admits a class of undergraduates who not only fail to mirror–even roughly–the relevant population in their age cohort; they look like an entirely different species.  Apart from sex, Oxford (and Cambridge) have made too little progress in admitting disadvantaged groups. The facts are not in serious doubt.  We debate only responsibility and remedies.

Our responsibility–setting aside our inefficient and ineffective system of interviews– -is limited.  This is mostly not our fault.   But we do want to teach in a very special way.  In some subjects, we want to teach in a class size of two or three (no; you did not misread), and so we select students who, we think, will flourish in the unique way we intend to teach.  Of course we know there are other ways to teach undergraduates.  After all, Princeton, Yale, and Harvard all seem to turn out brilliant graduates (and even to replenish the US class system) without anything like our commitment of resources.   I’ve taught in both systems, and I know that, for the faculty, it is more fun and more illuminating to teach students in pairs than in scores.  But it has been a long time since Oxford (or Cambridge) has seriously examined the tutorial model,  though I think the Equality Act probably requires us to do so.  So some share of the blame is ours.

What is manifestly not our fault is the huge disproportion of good applicants who were privately educated–pupils whose parents could give them not only the social capital, but also the cold cash, to be educated in private schools that prepare pupils well for how Oxford has decided to teach.  This state of affairs is not unique.  In most capitalist societies, such advantages can be purchased either directly, by paying school fees, or indirectly, by buying a house in the catchment area of an excellent state school.  England is unique only in how pervasive, overt, and toxic the transaction is.  There is a nice philosophical question whether it is more opprobrious to  buy advantage on the open market or to buy it as a foreseen, welcome, but strictly unintended, consequence of one’s housing choices.  (And these are, for some people, real choices: my own parents gave up a lot of personal pleasures to buy a house in an area where I was likely to get the sort of education that would prepare me for the right sort of university.  Yet being on the (far) left, they would never have considered paying school fees.)

But the fact that something is not Oxford’s fault, in the sense that we are not morally or politically responsible for causing it in the first place, does not show that we are blameless when we have the power to change it yet decline to do so. I think that is our actual position.  We could quickly improve things with quotas:

I propose that Oxford (and Cambridge) should require the over-representation of privately educated undergraduates stay below 300%, which quota should be reassessed every 10 years.

You may be thinking that a 300% over-representation of any social group is already outrageous.  Maybe.  But depending on how one counts it, the current over-representation of private-school students at Oxford is around 600%.   So we could make a huge reduction in offers to the privileged and still leave them with triple what they would be entitled to under mirror-representation.   That would be a lot easier than expanding the size of the university, or spending more on ‘outreach’ to attract new applicants who we might still reject.

Or you may be thinking that my proposal would be discriminatory.  In English law anyway, it would not.  ‘Wealth and status‘ are not ‘protected characteristics’ under  discrimination law.  There are many good reasons we should not set caps on the number of Jewish or Asian students we admit.  But these do not apply to those elevated by economic and social privilege alone, and there is no solid evidence to show that a cap on the (relatively) rich would be indirect discrimination against one of our protected groups.  In practice, all this means is that some children of the privileged will not make the cut at Oxford or Cambridge, but will instead get accepted at one of England’s other, still excellent, universities.

But maybe you are thinking that this would violate a moral norm: ‘each person should be treated as an individual, on her own merits, and not just as a member of some group or other!’  (Myself, I’d dread being treated on someone’s view of my ‘merits’.)   But if that norm is sound, it would already require a huge change in our admissions standards.  We do not now treat the hundreds of applicants ‘each on her own merits’.  Each is treated as a member of a group:  the group who got three A’s at A-level, or the group who scored high on the LNAT,  or the  group that impressed the interviewer, or the group that came from a school we know and respect.   The fantasy that our existing system is attuned to individual merits is laughable.  (And adding ‘contextual’ data–‘he grew up in a rough neighborhood’–is just another form of group-based prediction.)

So here’s an idea.  Let’s experiment.  Let’s set a 300%–or, if you like, 400%–cap on the over-representation of the over-privileged at Oxford.  Without expanding enrollment, that will make lots of space for other good students.  Then let’s see how that works out for us, and for the legal profession in England.  This would, I admit, be a big change.  So I suppose we will have to confront the Ultimate Objection:

‘How many Oxford dons does it take to change a light-bulb?’

‘What do you mean, “CHANGE”???’

How not to get into grad school

“Hi Leslie,

I’m a current third year law student at *******. I’m looking to do an MPhil at Oxford University hopefully. I’m writing just to ask is there anyone in the University who I could speak to about possible topics for my research or anything I need to do in my application. I would really appreciate any guidance. I’m a very motivated student who really wishes to progress within this area.

Kind Regards,

[forename only]”

__________

“Dear Mr ********

You’ll find most of what you need to know about our MPhil, the requirements, and how to apply, here:

https://www.law.ox.ac.uk/admissions/postgraduate/master-philosophy-law

Normally, applicants have a research project in mind when they apply to do a research degree at Oxford. (Part of our admission process, in fact, is assessing the quality of their proposed topic and approach).   Our Director of Graduate Studies might be able to help if anything in our published guidance is unclear.   If you are wondering about possible supervision etc. we would still need to have an idea of your proposed research topic before pointing you to someone in particular.

Yours truly,

Leslie Green

[etc]”

ALSO, READ THIS:

 

How to improve Oxford’s interviews

In my last post, I suggested that we can’t understand the persistence of the Oxford admissions interview without understanding its ceremonial function. It is an initiatory rite that expresses and secures the power of  tutors who get to select which undergraduates they would like to teach.

This conjecture has not met universal favour among my colleagues, or at least not among those who are interviewing this week.  They say, rightly, that I exaggerate the lack of uniformity among subjects when I describe our system as ‘chaos’.  Isn’t our Common Framework for admissions a steadying force? Others mention that this is ‘not a good time’ to cast doubt on the fairness or effectiveness of Oxford admissions.   And several tell me they are adequately warned against unconscious bias and that they are not, in fact, conscious of any unconscious bias in their own interviewing.

There is no doubt that admissions interviews could be, and historically have been, much worse (including when I used to do them).   Still, I think we should abandon them, for the reasons I gave.

Oxford knows how to admit talented students without the ritual. That is how we already admit people to our elite, tutorial-taught, postgraduate degrees, including the B.Phil. and B.C.L.: centrally, on the ‘paper file’, and without interviews.  Many of them come to Oxford without ever having had a tutorial or anything like one, yet they learn how to learn in our system.   Indeed, many of their tutors gave their first Oxford tutorials without ever having had one; they too learned. Yet we persist in the fiction that only by seeing the cut of their jib can we be sure that applicants can work the magic of an Oxford tutorial.

In any case, if interviews are to persist, there is one way we can improve them: No one should interview those they will have the blessing (or burden) of teaching: nemo iudex in causa sua. If an applicant really is incapable of learning in our system, let that determination be made by someone other than the tutor who will be charged with trying to help them.   This argues for more centralized, faculty- or department-led, ‘blind’ interviewing.    Perhaps it even argues for the inclusion of non-specialists (academics in other subjects, or alumni, or even students!) on our admissions panels.

I do not pretend that eliminating or improving interviews will make Oxford more representative of the communities we serve. For that, more drastic measures are needed.   I shall sketch the case for one of them in the New Year.

In the meantime, all good wishes for the holidays, and my sympathies to those of you who are interviewing, or being interviewed. Best of luck!

Why Oxford’s admission interviews persist

A week from now, one of Oxford’s annual rituals begins.   Clueless teenagers arrive in force to be interviewed for an undergraduate place.

I call it a ‘ritual’ because admissions interviews are not really functional; they are ceremonial.  They take place in buildings that, unless you live in Downtown Abbey, seem utterly alien.  Directions are given in code (‘call at the Porter’s Lodge’, ‘meals will be taken in Hall,’ ‘await instruction by the Old Smoking Room’…). The interview is a minuet in which smiling tutors and grimacing candidates dip and swing around questions that are supposed to distinguish minds that are truly graceful from those that are merely trained.  None of it makes our admissions process more accurate, reliable, or fair.

Oxford has many rituals that are harmless, even valuable: gowns, punting, Evensong. The interview is not among these.  It adds expense, work, and stress for no benefit. But compelling empirical evidence of unconscious bias, negative and positive, in face-to-face interviews has no impact on the high priests of the process, the admissions tutors. Some of the most inquiring and skeptical minds on the planet display a touching faith in their own ability to spot a diamond in the rough while never being dazzled by the flash of fool’s gold.  The ritual is hated by applicants, hated by the press, and increasingly hated also by the government.

So why does it go on? Few are actually proud of the fact that, year after year, we admit a vast disproportion of applicants from private (i.e. fee-charging) schools. Only 6.5% of the cohort are educated in such schools, but last year they made up 41% of Oxford’s intake. (The average for all UK universities was only 10%.)   And few of my colleagues are unaware that their counterparts around the world do not have the burden of interviews.

In part the explanation is stasis: ‘”How many Oxford dons does it take to change a light bulb?” “–What do you mean, ‘change’?”’

In part it is chaos: Oxford is a federation of 38 universities, its colleges, without a coherent overall admissions policy.

But I’m afraid that another important part of the explanation is power. Admissions tutors do not want to yield the power to choose the students they would like to teach over the next three or four years of their careers. The interview is a ritual that expresses, secures, and celebrates their power.

It is not generally understood that, at Oxford, those doing the interviewing are those doing the teaching.  Nor is it understood that those at the top of the hierarchy, the Professors, normally have no obligation to teach or admit undergraduates.   It is the Tutorial Fellow, overworked and often underpaid, that does the heavy-lifting. (Oxford, unlike many leading universities in the US or Canada, has not yet shunted undergraduate teaching onto graduate students.) That is why they are so keen to keep control over those they admit, and why a dysfunctional and damaging ritual continues.

But the secret is starting to leak out. British author Alex Preston, writing in what is, I think, intended to be a defence of the interview system, openly acknowledges that he was crammed for it: ‘I was prepared for my interview by the genial headmaster of the Sussex state secondary I attended. We met most mornings in the weeks leading up to that fateful October day and he’d fire questions at me about Eliot, Pound, Woolf and Joyce…’

Preston is touchingly unaware how few applicants have a ‘genial headmaster’ able to coach applicants for ‘most mornings’ over a period of weeks.   But Preston does have enough self-awareness to figure out what the Oxford interview is really for:

the interview was about my potential tutors deciding whether I was a pupil who would manage to stick out the three years of essays and exams, whether I’d bore them in tutorials, or infuriate them…’

An ineffective ritual that leaks bias into  admissions is sustained by the tutors’ desire not to admit students who might ‘bore’ or ‘infuriate’ them (or, I suppose, who might threaten or offend them).  Even our students have started to figure it out.

What is to be done?   We are unlikely to abolish interviews (see above, under ‘change’ and ‘chaos’); but there are  ways to limit their damage. I shall explain two in the next post.

Why it is hard to be a campus conservative

When the right claims that US universities have been taken over by ‘liberals’, and that faculty and students of ‘conservative’ opinions are afraid to speak up, they do not mean that its campuses are now swamped by people who think we should restrict liberty only to prevent harm to others, or who demand that social inequalities benefit the worst-off. They mean American universities are full of people who believe things like this:

  • Species arose through natural selection.
  • No author of any gospel ever met Jesus.
  • Homosexuality is a normal variant in human behaviour.
  • The United States lost a war against Vietnam.
  • Human activity is a significant cause of climate change.
  • The United States has worse public health than do countries with nationalized health care.

Even more threatening to conservatives, however, is not these individual claims which are endorsed by all but a minority in serious universities. It the dominance of  habits of thought, modes of inquiry, and sensibilities of outlook that lead people to these conclusions. But none of this is because US universities are bastions of liberalism. It is because they are universities.

Of course, as Mill explained, every society should tolerate some truth-deniers. (He went further. He said that if a society lacks truth-deniers it might invent them, to keep us all on our toes.) But Mill never said their place is in universities, or that it falls to universities to provide ‘safe spaces’ for those whose political identity is bound up with  ignorance and superstition.  A university must tolerate, and even welcome, those who follow evidence and argument to conclusions that are false or unpalatable; but it may reject those who seek a platform for hatred or deception.  That is why it counts counts against Middlebury College when it shouts down Charles Murray but it counts in favour of Berkeley when it excludes Milos Yannopoulos.

That means universities can never be comfortable for a certain kind of conservative.  Those who need the lecture hall to flatter their personal convictions are bound to feel lonely and misunderstood.  Those who think views in the college should mirror votes in the electoral college are bound to feel cheated.  Maybe they can take comfort in the welcoming company they can find in America’s churches, legislatures, and even its courts.  But they should expect only argument from its universities—not speaking with a single voice, but speaking in that irritating way that universities do: insisting on belief that is proportionate to evidence, and on standards of reasoning that are neither liberal nor conservative, but merely human.

How to make your gay students uncomfortable

Professor Louise Richardson, the Vice-Chancellor of Oxford University, is quoted as giving the following awkward if well-intentioned defence of free speech on campus:

I’ve had many conversations with students who say they don’t feel comfortable because their professor has expressed views against homosexuality. (… ) And I say, ‘I’m sorry, but my job isn’t to make you feel comfortable. Education is not about being comfortable. I’m interested in making you uncomfortable. If you don’t like his views, you challenge them, engage with them, and figure how a smart person can have views like that.

In later qualification, Professor Richardson explained that she wasn’t talking about ‘many’ conversations here at Oxford.  I believe that.   I also believe Professor Richardson knows her legal obligations under the UK Equality Act to ensure the university is a comfortable place for its LGBT communities to do what we are all here to do: to teach, to research and to learn.  In any case, most of what needs to be said to remind her of that obligation, as well as her obligation to defend academic integrity from incompetence and quackery, has already been said.

Except, I think, for two points.

First, how does it come to be that any university teacher is expressing ‘views against homosexuality’ in a class?  I’m baffled. Maybe it was a seminar on human sexuality, moral philosophy, or human rights law.  But what if it was on quantum mechanics, modal logic, or numerical analysis? Maybe a university policy on sex discrimination or free speech was under discussion.  But what if it was merely that the rainbow flag was flying, and that gave the professor a homosexual panic attack? These distinctions matter.

I expect my gay law students to be willing as anyone to test the view that sexual orientation should be a prohibited ground of discrimination, or to be able to assess arguments about same-sex marriage. I do not expect them to have to put up with the casual homophobia of everyday life, with irrelevant or biased comments or examples, or with the stench created by some professor’s religious incontinence.

Second, where debate about homosexuality is relevant, it does not fall only on students to tackle false, ill-informed, or unsympathetic views on the part of teachers. And it certainly does not fall mainly on gay students to do so. It falls on all of us, starting with the Vice-Chancellor.

In my own fields, there are only two or three faculty whose homophobia intrudes in their work. Their disapproval of homosexuality is usually gracious, emollient, and even, in its twisted way, ‘reasoned’. I am less troubled by them than I am by pusillanimous  colleagues, tenured liberal faculty who regard such views as outrageous or pathetic, but who never dare put pen to paper, or even a hand in the air, to join in the argument and, in that properly academic way, help make their gay students more comfortable.

As Professor Richardson says, ‘If you don’t like his views, you challenge them, engage with them’.  But she should also have said, to her colleagues as well as to her students, ‘and this means you.’

Donald Trump, Laura Kipnis, and the Intolerable

No one I know who voted for Donald Trump has told me that he (or, conceivably, she) did so.   But then I hang out in the wrong circles: lawyers, academics, immigrants, gay people, and adults who are able to read and write. Still, I am sure there must be some. I suspect several of my rich American friends, most of the constitutional ‘originalists’ I know, and far too many ‘Christians’.

None of these actually approves of Trump, his values, or his conduct. On the contrary, they held their noses when voting, because they thought the alternatives worse, and because they thought Trumpism would secure the things they do approve: the wealth and power of the rich, a Supreme Court free of liberal-minded people, and a country in which women and LGBT minorities know their place.   That is to say, the sort of people I know who voted for Trump did so, not because they approved of him, but because they were willing to tolerate him.

Now, that does not eliminate, or much mitigate, their moral responsibility in helping support one of the most unjust, corrupt, and vile regimes of any aspirantly democratic society.   They share in the blame for its increasing corruption, not because of what they favour, but because of what they are willing to tolerate in the name of what they favour. They tolerate the intolerable—and mostly they still tolerate it—and that is wrong.

Which brings me to Laura Kipnis, and her illuminating, powerful, and controversial polemic, Unwanted Advances: Sexual Paranoia Comes to Campus.   Daring to question some complaints against a Northwestern professor hounded out of his academic post as a result of allegations of sexual misconduct—and, more important, daring to question the fairness of some universities’ procedures created to address sex discrimination—Kipnis  now finds herself exposed to a variety of complaints and lawsuits, essentially for supporting, or at least tolerating, the intolerable.

There are reasons to doubt that these claims will succeed.   But even if they fail, many will urge that this is because free speech, academic freedom, and procedural fairness are, in the US, treated with more affection than is gender equality. The more we insist on procedural fairness—a presumption of innocence, a right to confront one’s accusers, and to test their evidence—the easier life will be for harassers and rapists, and the harder for victims.

That is true, and because (alleged?) harassers and rapists attract little sympathy, it is a truth that dominates discussion about sexual predators on campus. After all, whose side are we on?

It is a good question. But a good answer to it should mention, not only the interests of the (alleged) victims and the accused, but also a group that no one ever mentions: the bystanders.

A graduate student whose instructor or supervisor is suspected of sexual misconduct will attract  suspicions.   Even when, and especially when, she is not a complainant, it may be assumed that this is because she is compliant. Or, if not compliant, then at least tolerant of a supervisor who is a harasser. Now, graduate students don’t have a lot of power, but most of them have enough power to ditch a supervisor who behaves in such ways. They do not need to show that he assaulted them. It is enough not to want to work with someone who assaults other students.   One willing to work with such a person when she could change that can fairly be assumed to tolerate his conduct. And, like voting for Trump, this is to tolerate the intolerable. (‘I know he is a sexist—racist, homophobe, adulterer, liar….—but he really is the world’s expert on the Roman Law of Dogs, so it is fine for me to keep working with him.’)

And this takes us back to procedure. A false accusation of harassment, racism, homophobia, infidelity… damages, not only the accused, but those who, in virtue of their own decisions, can  be supposed to tolerate the accused’s behaviour.   So fair and accurate procedures are important, not only for the sake of those who may be wrongly accused, but also for the sake of innocent bystanders, who may be wrongly accused of tolerating the intolerable.  It is time for them, and not just the wrongly accused, to speak up in favour of fair procedures.  They too have an interest at stake.

 

 

 

 

 

 

On Judicial Plagiarism

It is an open secret that judges sometimes plagiarize from submissions by the lawyers before them, and even from articles and books by academics.   With respect to the latter, they are often aided and abetted by their clerks—law students working with them as research assistants.

Unlike scholarly or literary cheaters, the worry about judicial plagiarists is not that they undermine the research process, violate authors’ ‘moral rights’, or steal someone’s intellectual property. Judicial plagiarism is worse than any of these. It undermines the rule of law and the independence of the judiciary. A judge who knowingly or recklessly reproduces words or arguments of others as if they were his own may not be making his own decisions. If discovered, this undermines public confidence that the judiciary can be relied on to think for itself.

Still, we know judicial plagiarism occurs. We also know why. Courts are underfunded and under-staffed; there is far too much work; many judges struggle with an impossible docket.   So the temptations to silently lift others’ work can be powerful.   Some lifting will be obvious.   A claimant will not fail to notice if a judge copies out page after page of the respondent’s pleadings, interspersing phrases like, ‘as we can clearly see’, or ‘ surely the better view is….’ But unacknowledged material that a clerk, or judge, copies without attribution from sources on Westlaw or Google is harder to spot, and can silently infiltrate judicial decisions.

This is why we should be concerned by reports of plagiarism on the part of Trump’s nominee to the US Supreme Court.  Judge Neil Gorsuch’s 2006 book, The Future of Assisted Suicide and Euthanasia , has been shown to contain passages and descriptions offered, without citation or acknowledgement, as if they were his own, but which were taken from other authors. That book was in turn based on Gorsuch’s 2004 thesis, submitted for a degree at the law school where I teach. It can only be a matter of time before someone downloads the thesis from the Oxford University Research Archive, to see whether it also contained the passages impugned in the press reports on his book.

If it did, and if Gorsuch were still an Oxford law student, he would be subject to the jurisdiction of University, which unambiguously prohibits plagiarism.  It does not matter whether silently copying others’ work is intentional or not; it does not matter whether it is done with the tolerance of those copied; it does not matter whether the passages copied are central to an argument or peripheral.  At Oxford, as at most other universities, the wrong is in the misrepresentation. It is an offence of academic dishonesty.

There is, of course, an important question of degree to attend to.  There is much worse plagiarism around, even in our universities.  And plagiarism in Gorsuch’s book has only been alleged in a few passages, though one of them is fairly extensive. But why is there any at all?  These passages seem to have survived an awful lot of scrutiny. In writing a thesis, submitting it for examination, revising it for publication, responding to editorial comments, and correcting texts and proofs there are many opportunities to spot, and correct, honest mistakes or omissions.  Indeed, it is not too late to do so even now.  So why the silence from Gorsuch and all the loud denials from his apologists?

Here at Oxford, our chief disciplinary officers, the Proctors, do not merely have a reactive role. They have broad powers they must use, not only to enforce our regulations, but to prevent future breaches of them. Why is this important? Gorsuch is no longer a member of Oxford University, so the Proctors have no enforcement jurisdiction over him. But they can and must act to prevent misconduct on the part of current students or faculty.

They should be concerned, then, that Gorsuch’s former Oxford supervisor has provided a statement to the ‘Gorsuch team’ denying any plagiarism in the book:

Having reviewed the examples provided by BuzzFeed News to the Gorsuch team, the professor who supervised Gorsuch dissertation, Emeritus Professor John Finnis of Oxford University, provided a statement to the Gorsuch team, concluding, “[I]n my opinion, none of the allegations has any substance or justification. In all the instances mentioned, Neil Gorsuch’s writing and citing was easily and well within the proper and accepted standards of scholarly research and writing in the field of study in which he and I work.”

This opinion has been widely republished and read, not only by the politicians for whom it was written, but by law students around the world.  And this opinion, coming from such an influential scholar, sends the wrong message to young lawyers and scholars.

If by ‘the field of study in which [Gorsuch] and I work,’ Professor Finnis means university research in law or legal philosophy, then his claim is unfounded. Oxford University’s regulations and guidance to students, and years of interpretation of  them by the Proctors and others, put this beyond doubt.   But perhaps Finnis means that lower standards of integrity apply to law books than to law theses? I do not think that is true either; but it is in any case it is the standards of our University that our students need to comply with, now and in the future.

For my own part, if ever I encountered plagiarism in work by one of my own students I would insist they revise their thesis to include full acknowledgement and citation, using it as a ‘teaching moment’ to explain why it is critical to get this right, especially for lawyers. Legal citation is, as they say, not exactly rocket science: misattributions or non-attributions, if not accidental, suggest a cheater seeking to gain advantage from the work of others, or someone who has contempt for academic culture.

Good judges are sensitive to the further issues at stake. In a British Columbia appeal against a trial judge’s decision that lifted wholesale from one the parties’ submissions, Mr Justice Smith wrote,

Trial judges are busy, and there can be cases… where a party’s submissions so accurately reflect the trial judge’s reasoning that nothing would be gained by postponing other pressing work in order to rewrite the reasoning and conclusions in the judge’s own words. However, judges who are tempted to prepare reasons for judgment in this way should be acutely aware they may create a perception that they did not reach their decisions independently. Such a perception would tend to undermine public confidence in the impartiality and independence of the judiciary generally and would bring the administration of justice into disrepute:

Of course, an academic book or article is not a party’s submission, but for a judge to rely on it without citation would raise similar worries.   Indeed, that case would be worse for, as I mentioned above, judicial plagiarism of that sort will be a lot harder for the parties and others to detect. Given that it can always be avoided by a mere footnote–by a moment’s attention–failure to provide one is wrong.   That is why we demand it of our students, our judges, and ourselves.

When writing as an academic, Neil Gorsuch did not have a trial judge’s excuse of the extraordinary pressures of work. He was not copying from submissions others had read, but from authors most readers would not even know. With the leisure of the ivory tower, and with no one but scholars depending on his writing, Gorsuch failed an easy, elementary test we demand of every student: acknowledge all your sources–every single one–truthfully and fully. How should we expect him to behave when the stakes, and temptations, are higher?

Why every academic under 60 must have a blog

As I have mentioned before, there is an enormous over-production of scholarly writing, especially in the humanities and social sciences. Some of it is driven by mandates imposed by governments, and lots by universities’ apparent craving for self-harm. Still, quite a lot is also caused academics themselves (i.e. ourselves). We are competitive, self-deceptive, and rarely good at much apart from academic writing—teaching not excepted.

What to do? One possibility is strive for  self-control and to resist writing—and certainly publishing—unless one knows something that at least twelve other people need to know and will never otherwise find out.

Two considerations argue against this approach. The first is that we seem to be very poor judges of what others need to know. The second is that we tend to over-rate the significance of own work. A good friend, X (an enormously distinguished academic) once told me—in a moment of ethanolic honesty—that he had now resolved to publish nothing more unless it was a true ‘X-gem’. Of course this came to nothing, as you will have guessed by the very fact that he presupposed that some non-trivial amount of his work would turn out to be not only of lapidary, but even gemological, beauty. Scores of papers appeared anyway, many of them repeating the repeated lines that had made him influential, in his own scintillating way.

But now consider the obvious alternative: external editors. Won’t that work? Sadly, no. And I say this, in all humility, as an editor of an annual, of a book series, and as a member of the editorial boards of what are regarded as top journals in my fields.

Undeniably, in the outlets for which I am part-responsible, it has never once been the case that we published because: we needed to fill a number, we needed to replace an author who didn’t produce, we thought there could be a market for a ludicrous argument, we liked someone, or we needed to keep up the pace in order to remain on the radar. Still—all of these are true of every other academic outlet in the English-speaking world. In particular, US law reviews (of which there are thousands) are filled (up) with material that, absent such considerations, would never find a home anywhere. They are products of ‘internal’ necessities only—and of the institutional necessity to publish the writings of their own faculty while buffing the CVs of their student ‘editors’.

So here is my suggestion. Every university teacher under, say, 60, should be contractually required to have a blog. (Oldsters will be forgiven their tech-phobias.) The blogs will be hosted and maintained by their own universities, and the universities will not claim intellectual property in the blog-publications, and will never attempt to impose any regulations on faculty blogs apart from those required by general law. But no blog entry will be citable, or mentionable, in any internal context, including deliberations about tenure, promotion, salary, etc. And no one will be allowed to complain in any such context that Professor X is a sourpuss on his blog, or that he published something that their students found offensive, micro-aggressive, or dumb.

The idea is that compulsory blogs could in time become safety valves, relieving pressure from journals and book publishers. Professors will thus be nudged—not compelled—towards writing in places where the marginal cost, and harm,  of another publication is about zero. No longer will someone wake up, realize there is a tiny non-sequitur in some argument, and then start his article-generator grinding away at the literature review, the three alternate interpretations, his own ‘better view’, his reply to all possible objections, and his final, predictable, agonizing, Summary of My Argument—which gets fed into a paper-submission-app, inevitably to be accepted by, shall we say, the Southern-Canadian-Columbian-State-Journal-of-Transystemic-Legal-Studies.  Instead, he will  just have a double espresso, practice three minutes of mindfulness, and then take to his blog. After the scholarly ejaculation has subsided, he will take a nap and prepare for class.

How can I be sure? Actually, I’m not. But what alternative do we have? Everything I can think of seems much worse.