The "open meetings" nonsense.

If you care to read details, go here. It's nothing, and I won't be distracted by it.

CORRECTION: In the post title, "records" corrected to: "meetings."

"Does the Wisconsin Senate have the power to compel absent Democratic senators to return to the senate floor if they re-enter the state of Wisconsin? Yes."

Says Jim Lindgren:

I would hope that those who rely on the arrest clause of the state constitution would deal with the fact that the privilege against arrest applies “in all cases.” These commentators might try to argue that the drafters of the Wisconsin — and by implication, US – Constitutions meant “in all instances” when they wrote “in all cases.”

As implausible as this interpretation would be in the abstract, in context it would not pass the laugh test. After all, the phrase reads: “in all cases, except treason, felony and breach of the peace.” In context, the framers’ language clearly meant court cases....

That interpretation would conflict with the compulsory attendance provision (Article IV, §7) of the constitution, Lindgren says:

Reading the two constitutional sections together, the courts can’t meddle in legislative affairs by arresting legislators in a civil court case, but each house of the legislature “may compel the attendance of absent members in such manner and under such penalties as each house may provide.”

"Wisconsin Senate Does Not Need a 3/5ths Quorum to Pass Much of the Budget Bill."

Says Jim Lindgren.

Gloria Steinem and the turtle.

#4 on Donna Brazile's rules to live by is "Ask the turtle":

I'm proud to call Gloria Steinem a friend, and this advice came from her. While on a field trip in college with her geology class, she discovered a giant snapping turtle that had climbed out of the river, up a dirt path, right to the edge of a road. Worried it would soon be run over, she wrestled the enormous reptile off the embankment and back down to the water.

At that moment, her professor walked up and asked what in the world she was doing. With some pride, she told him. He said that the turtle had probably spent a month crawling up that long dirt path to safely lay its eggs in the mud on the side of the road and that she had destroyed all that effort with her "rescue."

Gloria tells this story to illustrate the most important political lesson she ever learned: Always ask the turtle.

First, the turtle's message is obviously leave me alone. How am I supposed to believe that this is a message that liberals hold dear?

Second, like Jim Lindgren reading an essay by Michael Bellesiles, I'm getting twinges of doubt about this story. The characters are just too perfectly drawn, and the events unfold in a predictably tragic yet meaningful way.

Third, just try to picture of Gloria with an enormous snapping turtle. Possibly with zombie makeup.

"Bellesiles’s piece reads as if it were a short story (perhaps inspired by a real case) with himself playing the part of the sensitive, caring professor."

Layering suspicions of narcissism on top of suspicions of lying.

"I must say that I find the phrase 'Final March' a bit ominous..."

"... sort of a combination of the more common phrases 'Death March' and 'Final Solution.'"

Now, let's distinguish between wishing someone was dead and...

Jim Lindgren is struck by Michelle Goldberg's passion. It's hateful and casual, as she expresses the exquisite difference between the way lefties wanted Cheney dead and some righties — purportedly — actually want to kill Obama.

Hmm. Did anyone really threaten to kill Obama? It's a federal crime, and isn't it vigorously investigated? If people are doing this, why are we not seeing arrests?

Anyway, comparative hatred is a strange game, isn't it? Let's be rational and analytical, mm'kay?

Does Obama not know who's president of France? Or is he intentionally insulting Sarkozy?

"'I am certain that we will be able to work together, in the coming four years, in a spirit of peace and friendship to build a safer world."

Written to Jacques Chirac.

So maybe Chief Justice Roberts was instinctively editing and "improving" the wording of the constitutional oath.

Steven Pinker has the theory:

How could a famous stickler for grammar have bungled that 35-word passage...? ... [A simple] explanation is that the wayward adverb in the passage is blowback from Chief Justice Roberts’s habit of grammatical niggling.

Language pedants [may believe in a] prohibition against “split verbs,” in which an adverb comes between an infinitive marker like “to,” or an auxiliary like “will,” and the main verb of the sentence....

Any speaker who has not been brainwashed by the split-verb myth can sense that these corrections go against the rhythm and logic of English phrasing....

In his legal opinions, Chief Justice Roberts has altered quotations to conform to his notions of grammaticality, as when he excised the “ain’t” from Bob Dylan’s line “When you ain’t got nothing, you got nothing to lose.” On Tuesday his inner copy editor overrode any instincts toward strict constructionism and unilaterally amended the Constitution by moving the adverb “faithfully” away from the verb.

I clicked there from Jim Lindgren's post. Pinker's op-ed mentions Lindgren and Lindgren's famous attack on the Texas Law Review Manual on Style — which was, when Jim attacked — just begging for the mockery he inflicted on it.

It's nice to note that the Framers of the Constitution didn't fall for the "split verb" urban legend. And it's funny to think about these 2 old law review editors face-to-face over an editing issue. Both Obama and Roberts served on Harvard Law Review and must have engaged in endless discussions of various points of editing. But let's remember that Barack Obama was the president of the Harvard Law Review — that is, the editor-in-chief — while John Roberts was the managing editor. For those of you who know law reviews, that means a lot. The managing editor is typically the person with the most intense interest in the details of grammar and usage. It would be cool if we could know that when Barack Obama paused after John Roberts moved the "faithfully" that he was thinking: I can see what you're up to, you old managing editor, and I know you are wrong.

***

Apologies to all the great managing editors I have known whose knowledge of grammar and usage extends to the myths and urban legends that plague those earnest people who are trying too hard to get things right — hypercorrecting — and getting things wrong.

Forget "my Muslim faith." The key line is "these guys love to throw a rock and hide their hand."

Jim Lindgren takes a sharp closer look at yesterday's Obama-Stephanopoulos colloquy:

[A]s Obama sees himself slipping (temporarily) behind, he is willing make unproven charges that he probably wouldn't have been willing to say a week ago: that these guys are throwing rocks and hiding their hands.

And Obama would probably have gotten away with it if Stephanopoulos had been willing to accept that. But Stephanopoulos pushed back and forced Obama to back down, Obama finally admitting: "Well, what I'm saying is that he [McCain] hasn't suggested ... that I'm a Muslim. And I think that his campaign's upper echelons have not, either."

So when McCain's campaign manager is raised, Obama says, "these guys love to throw a rock and hide their hand." But when Stephanopoulos points out that he has no basis for making such a reckless charge, Obama admits that they haven't thrown rocks on this issue.

It's telling, then -- isn't it? -- that Obama brought up the attacks on Sarah Palin:

OBAMA: Now, well, look. Listen. You and I both know that the minute that Governor Palin was forced to talk about her daughter, I immediately said that's off limits. And...

STEPHANOPOULOS: But John McCain said the same thing about questioning your faith.

OBAMA: And what was the first thing the McCain's campaign went out and did? They said, look, these liberal blogs that support Obama are out there attacking Governor Palin.

And you're doing something that they didn't do. The McCain campaign -- as Obama had it -- merely pointed at the liberal blogs and said it was terrible to attack Palin that way. But the McCain campaign never accused Obama of starting it. It accepted his assertion that he didn't do it and didn't think it should be done.

Now, talking to Stephanopoulos, Obama is saying that the McCain campaign really did start it and is hiding it. What is the justification for that charge? A guilty conscience? When he says the McCain camp likes to throw the rock and hide their hand, it makes me suspect that the Obama campaign is throwing rocks and hiding their hands!

You and I both know that the minute that Governor Palin was forced to talk about her daughter, I immediately said that's off limits.

The minute... immediately... Yes, you have to be quick to hide your hand after you've throw a rock.

***

Bonus video: "I didn't do it."

One man's "justice nerve" is another man's "collectivist nerve."

Jim Lindgren objects to a regime of mandatory community service.

Let’s hope that the Supreme Court would not permit Service Nation's move backwards to a more feudal relationship between ordinary people and the people who govern them. One senses that de Toqueville understood American values of volunteerism and freedom of association much better than the people behind Service Nation, an understanding that was also concerned about the tyranny of the majority.

Service Nation. It sounds like the title of a dystopian novel.

You'd think before naming your movement, you'd check the etymology of your key word:

service...

ETYMOLOGY: Middle English, from Old French, from Latin servitium, slavery, from servus, slave.

But as Lindgren notes, one man's "justice nerve" is another man's "collectivist nerve." Something might sound so right to you, that you don't even notice how it sounds to others.

"I share Ann's affection for bloggers who are trying to observe and understand what they are writing about..."

Writes Jim Lindgren, commenting on my comment on Rush Limbaugh. (Ha ha.) He contrasts this trying to observe and understand what they are writing about — I would say thinking by writing —to "always writing op-eds with a thesis they are trying to prove" and is nice enough to say this is "one reason that I enjoy reading her blog." But he concludes:

Unfortunately, I find that many blog readers prefer strongly thesis-driven posts, which they can either echo or attack point by point.

Many... perhaps. But the best blog readers — and radio listeners — are the ones who want to experience thinking in real time.

Jim seems to be complimenting and critiquing me simultaneously. But I detect some wistfulness, some request for permission to cast aside those strongly thesis-driven posts — to live freely in writing.

The morning after the Second Amendment case.

1. I did an hour-long call-in show on Wisconsin Public Radio at 6 a.m. this morning. You can stream the audio here. We had lots of callers — and in case you're wondering how things are in Wisconsin — every single one supported gun rights.

2. Here's lawprof Randy Barnett in the Wall Street Journal, making some predictions. 1. The Second Amendment will be applied to the states via the 14th Amendment. (This issue didn't arise in the D.C. case, but "Justice Scalia acknowledges that the 39th Congress that enacted the 14th Amendment did so, in part, to protect the individual right to arms of freedmen and Southern Republicans so they might defend themselves from violence.") 2. "[M]ost existing gun regulations falling short of a ban will eventually be upheld. But more extreme or merely symbolic laws that are sometimes proposed – whose aim is to impose an 'undue burden' by raising the cost of gun production, ownership and sale – would likely be found unconstitutional."

3. Lawprof Sandy Levinson talks about the effect of the decision on the presidential race:

As a partisan Democrat, I confess to being relieved that the dissenters did not prevail, for the upholding of the D.C. ordinance would, in effect, have served as a massive in-kind campaign contribution to John McCain.

Just imagine what might happen if Justice Kennedy had joined his more moderate colleagues, as he did just the day before in providing the all-important fifth vote to invalidate the death penalty for rapists of children. One sudders at the prospect of Sen. McCain, or some 527group, saying the current Court both wants to protect child rapists and prevent parents from possessing handguns to defend themselves and their children against such marauders. Now all that Sen. McCain can say is that “only one vote” stands between the protection of gun rights and the ability of the state to “take away your guns.”

And he can't stand the historical analysis:

If one had any reason to believe that either Scalia or Stevens was a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions exhibit the worst kind of “law-office history,” in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other—and, presumably, their colleagues who signed each of the opinions—with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory....

Both Scalia and Stevens manifest what is worst about Supreme Court rhetoric, which is precisely the tone of sublime confidence when addressing even the most complex of issues.

Yes, this is the convention, unfortunately, and it prevails among many commentators too.

3. Here's the New York Times editorial:

In a radical break from 70 years of Supreme Court precedent, Justice Antonin Scalia, writing for the majority, declared that the Second Amendment guarantees individuals the right to bear arms for nonmilitary uses, even though the amendment clearly links the right to service in a “militia.” The ruling will give gun-rights advocates a powerful new legal tool to try to strike down gun-control laws across the nation.

This is a decision that will cost innocent lives, cause immeasurable pain and suffering and turn America into a more dangerous country. It will also diminish our standing in the world, sending yet another message that the United States values gun rights over human life.

See what I mean? The Times goes on to say:

Senator John McCain has said he would appoint justices like Chief Justice John Roberts and Justice Samuel Alito — both of whom supported this decision. If the court is allowed to tip even further to the far right, there will be even more damage done to the rights and the safety of Americans.

But, of course, Barack Obama said the Court got the case right. How then does the perceived wrongness of the case cut against McCain? The Times is conceding a point about Obama that he might not want to concede! It is assuming that, whatever he says about the case, he will appoint the kind of Justice who would have decided it the other way.

4. There is an immense amount of great commentary at Volokh Conspiracy: Randy Barnett ("I believe Justice Scalia signaled that regulations short of a ban should be scrutinized the way we do 'time, place, and manner' regulations of speech when he equated the Second Amendment with the First..."), Jim Lindgren (on whether the Court created a "new right"), Orin Kerr (noting that Justice Breyer "tak[es] different approaches depending on which side of the culture wars the challenged law happens to fall"), Ilya Somin (warning that "judicial recognition of a constitutional right is only the beginning of the struggle to provide genuinely effective protection for that right"), Dale Carpenter (making 7 points about the case), Eugene Volokh (noting that academic scholarship really mattered, but not as much as who appoints the Justices).

Who will determine whether John McCain is a "natural-born citizen," qualified for the presidency?

There's been a lot of discussion of whether John McCain meets the constitutional requirement for the presidency. He was born in the Panama Canal Zone, where his father was stationed as a military officer. The NYT covers the story today:

“There are powerful arguments that Senator McCain or anyone else in this position is constitutionally qualified, but there is certainly no precedent,” said Sarah H. Duggin, an associate professor of law at Catholic University who has studied the issue extensively. “It is not a slam-dunk situation.”...

Senator Lindsey Graham, Republican of South Carolina and one of Mr. McCain’s closest allies, said it would be incomprehensible to him if the son of a military member born in a military station could not run for president.

“He was posted there on orders from the United States government,” Mr. Graham said of Mr. McCain’s father. “If that becomes a problem, we need to tell every military family that your kid can’t be president if they take an overseas assignment.”

I love the contrast between the academic and the politician, and I think the politician's legal sensibility here says more about how the Supreme Court would ultimately decide the question than any academic inquiry into the text and the history of the constitutional clause. Graham, by the way, is a lawyer (with a law degree from the University of South Carolina) and more than 6 years of service as a lawyer in the Air Force. He still serves in the Air Force Reserves, where he is a colonel and a Senior Instructor at the Air Force JAG School. He knows law, and his interpretation of the clause is not just political instinct.

Ms. Duggin and others who have explored the arcane subject in depth say legal argument and basic fairness may indeed be on the side of Mr. McCain, a longtime member of Congress from Arizona. But multiple experts and scholarly reviews say the issue has never been definitively resolved by either Congress or the Supreme Court....

Lawyers who have examined the topic say there is not just confusion about the provision itself, but uncertainty about who would have the legal standing to challenge a candidate on such grounds, what form a challenge could take and whether it would have to wait until after the election or could be made at any time.

And this is the point: No one should be seen as having standing to sue. No one who might conceivably file a lawsuit has a concrete and particularized injury that would be redressed through the disqualification of McCain. So there will not be a Supreme Court case interpreting the clause. If the Electoral College ever selects someone who presents this problem, it will be theoretically possible for Congress to reject the choice on constitutional grounds, but, politically, that too is inconceivable.

The real constitutional interpretation is taking place right now, as we decide whether to accept a man with this problem as the nominee, and later, as the candidate. I think we as a people have already answered the question as to McCain. None of his opponents are using disqualification as an argument and no one is concerned about it. Think of how different it would be if Arnold Schwarzenegger ran for President. The issue would be debated and argued, and I think we'd see him as disqualified and, because of that, he'd never reach the point of nomination. Can you picture Barack Obama or Hillary Clinton trying to defeat McCain by making the argument that his birth in the Canal Zone disqualifies him? They'd only make themselves look bad. The argument is so unattractive that no one serious will make it, and therefore the question, for all realistic purposes, has already been answered.

ADDED: Jim Lindgren peruses the historical texts and concludes that the answer is obvious (and McCain is "natural-born").

At the "Writing About the Law" conference.

I'm watching the second panel at the conference now. My panel -- about law review writing -- is over, but you can read about it over here on Larry Solum's blog. The second panel are all people who write about law for the popular reader: Dahlia Lithwick (of Slate), Adam Cohen (NYT), Jamie Heller (WSJ), and Richard Sweren ("Law and Order").

Here's a picture of me -- arranged randomly -- with Dahlia Lithwick:



I think that's Jim Lindgren's thumb. Here is the possibly dangerous and unlawful Lindgren:



And David Lat is here too. Here he is explaining something to conference organizer Cameron Stracher:



Here's David's description of my panel. Hey, he gives me a quote for the banner! And here he is on the second panel.

And here's some idle chatter before the panel starts:

The imprudent charity.

Jim Lindgren finds a glaring question in the tax return of Black Box Voting.

Stanley Fish takes on the Kevin Barrett controversy.

Stanley Fish takes on the Kevin Barrett controversy in an op-ed in the NYT today:

Mr. Barrett’s critics argue that academic freedom has limits and should not be invoked to justify the dissemination of lies and fantasies. Mr. Barrett’s supporters (most of whom are not partisans of his conspiracy theory) insist that it is the very point of an academic institution to entertain all points of view, however unpopular.....

Both sides get it wrong. The problem is that each assumes that academic freedom is about protecting the content of a professor’s speech; one side thinks that no content should be ruled out in advance; while the other would draw the line at propositions (like the denial of the Holocaust or the flatness of the world) considered by almost everyone to be crazy or dangerous.

But in fact, academic freedom has nothing to do with content. It is not a subset of the general freedom of Americans to say anything they like (so long as it is not an incitement to violence or is treasonous or libelous). Rather, academic freedom is the freedom of academics to study anything they like; the freedom, that is, to subject any body of material, however unpromising it might seem, to academic interrogation and analysis....

In short, whether something is an appropriate object of academic study is a matter not of its content — a crackpot theory may have had a history of influence that well rewards scholarly scrutiny — but of its availability to serious analysis. This point was missed by the author of a comment posted to the blog of a University of Wisconsin law professor, Ann Althouse: “When is the University of Wisconsin hiring a professor of astrology?” The question is obviously sarcastic; its intention is to equate the 9/11-inside-job theory with believing in the predictive power of astrology, and to imply that since the university wouldn’t think of hiring someone to teach the one, it should have known better than to hire someone to teach the other.

Hey! Fact check, people! Can't you tell the difference between the blogger and the commenters? I've written a lot about the Barrett controversy, but I didn't write that. A commenter called "kpom" did. (Note to the NYT: I want a correction printed!) [CORRECTION! I misread that myself. Sorry! He does say a commenter.]

I have said this:

It's conceivable that [Barrett] could still, as a teacher, present [the 9/11 conspiracy theory] neutrally, just as a university teacher on religion could teach the religion he believes in. My problem is that the teacher believes a crackpot, ridiculous theory and he's using a class on Islam to teach his theory. It's like being hired to teach astronomy and covering astrology and actually being someone who believes in astrology. I feel sorry for the students who think it's worth their time to engage with this material and to subject themselves to the power of someone who would believe something so nutty.

So my problem is that belief in this conspiracy theory reveals such a defective mind that the teacher cannot be trusted, and that the factual truth of the conspiracy theory isn't properly taught in a course about Islam. That many Muslims believe the theory could be part of the course, but the inquiry should be into why they would be drawn into such beliefs, and a teacher who thinks the beliefs are true would not seem to have much grasp of the topic.

And I've said this, as a comment in the thread with the quote that isn't mine:

[A] test for the university will come when we see how it treats others in similar positions. What if we found someone hired to teach here was a white supremacist, planning to devote a week of his course to his theory? Would he be treated with as much respect as Barrett? What if we found someone hired to teach evolution was a young earth creationist planning to devote a week of his course to his theory? These people now must be treated the same. Pretty horrible. I hate to even type that out. But this underscores why the hiring phase matters so much.

Back to Fish:

[T]he truth is that it would not be at all outlandish for a university to hire someone to teach astrology — not to profess astrology and recommend it as the basis of decision-making (shades of Nancy Reagan), but to teach the history of its very long career. There is, after all, a good argument for saying that Shakespeare, Chaucer and Dante, among others, cannot be fully understood unless one understands astrology.

The distinction I am making — between studying astrology and proselytizing for it — is crucial and can be generalized; it shows us where the line between the responsible and irresponsible practice of academic freedom should always be drawn. Any idea can be brought into the classroom if the point is to inquire into its structure, history, influence and so forth. But no idea belongs in the classroom if the point of introducing it is to recruit your students for the political agenda it may be thought to imply.

And this is where we come back to Mr. Barrett, who, in addition to being a college lecturer, is a member of a group calling itself Scholars for 9/11 Truth, an organization with the decidedly political agenda of persuading Americans that the Bush administration “not only permitted 9/11 to happen but may even have orchestrated these events.”

Is the fact of this group’s growing presence on the Internet a reason for studying it in a course on 9/11? Sure. Is the instructor who discusses the group’s arguments thereby endorsing them? Not at all. It is perfectly possible to teach a viewpoint without embracing it and urging it. But the moment a professor does embrace and urge it, academic study has ceased and been replaced by partisan advocacy. And that is a moment no college administration should allow to occur.

I agree heartily right up to the last sentence. It is the responsibility of the teacher not to cross this line. But how is the administration to police it? Students may think a teacher is really pushing a viewpoint when he isn't, and a good teacher can sell his viewpoint without it showing. I could use the Socratic method in the law school classroom and only ask questions but have a position I'm hoping to ingrain. I could run a discussion in which I constantly take the opposite side from the one I want the students to adopt and do it in a way that I think will cause students to internalize the side I'm forcing them to defend. How could the administration find out? What would you want them to do about it? And what percentage of university professors do you think cross this line? You'd need a witch hunt if administrators got serious about Fish's line: "that is a moment no college administration should allow to occur."

More Fish:

Provost Farrell ... is too hung up on questions of content and balance. He thinks that the important thing is to assure a diversity of views in the classroom, and so he is reassured when Mr. Barrett promises to surround his “unconventional” ideas and “personal opinions” with readings “representing a variety of viewpoints."...

Rather, the question should be: “Do you separate yourself from your partisan identity when you are in the employ of the citizens of Wisconsin and teach subject matter — whatever it is — rather than urge political action?” If the answer is yes, allowing Mr. Barrett to remain in the classroom is warranted. If the answer is no, (or if a yes answer is followed by classroom behavior that contradicts it) he should be shown the door. Not because he would be teaching the “wrong” things, but because he would have abandoned teaching for indoctrination.

[A]cademic freedom is just that: the freedom to do an academic job without external interference. It is not the freedom to do other jobs, jobs you are neither trained for nor paid to perform. While there should be no restrictions on what can be taught — no list of interdicted ideas or topics — there should be an absolute restriction on appropriating the scene of teaching for partisan political ideals. Teachers who use the classroom to indoctrinate make the enterprise of higher education vulnerable to its critics and shortchange students in the guise of showing them the true way.

What Farrell did was to rely on the fact that Barrett "assured me that students will be free -- and encouraged -- to challenge his viewpoint," that "Barrett appreciates his responsibility as an instructor," and that "he will attempt to provide students with a classroom experience that respects and welcomes open dialogue on all topics." That is, Farrell accepts Barrett as a strong advocate for one side as long as he maintains an open debate in which the students can speak and argue with him.

Both Fish and Farrell stress process over substance. It's not a question of what subjects come into the classroom. (They ignore the process point I've made, which is that I doubt that administrators could stick to substance neutrality. Again: picture a teacher of white supremacy.) Farrell emphasizes the process of multiple viewpoints and debate. Fish emphasizes the process of academic inquiry and avoiding proselytizing. He would ask the teacher whether he could set aside "your partisan identity" and not "urge political action."

I wonder how far Fish means to take that. I've heard many law professors over the years say that since everyone is really partisan in some way, it's more honest to come right out and say what your positions are. They would portray Fish's ideal professor as a big sneak, posturing as neutral, but really slipping opinion in everywhere. Is Fish saying that professors who take the open approach are wrongly allowing their "partisan identity" to appear in the classroom? It would be terribly repressive for administrators to forbid that. Maybe Fish only means for the professor to refrain from "urg[ing] political action." If so, he's not saying very much. But Fish thinks he's identified a clear line:

The distinction I am making — between studying astrology and proselytizing for it — is crucial and can be generalized; it shows us where the line between the responsible and irresponsible practice of academic freedom should always be drawn. Any idea can be brought into the classroom if the point is to inquire into its structure, history, influence and so forth. But no idea belongs in the classroom if the point of introducing it is to recruit your students for the political agenda it may be thought to imply.

Is that a clear line? The more I look at it, the less clear it seems. It's quite subjective. Each of the last two sentences of his essay contains the phrase if the point is. How are we to tell what the teacher's point really is? A smart person with an agenda knows how to hide it.

UPDATE: From ACTA:

The Times' publication of this piece, written by one of the great old lions of the academic culture wars (recall that Fish chaired the English department at Duke during the years when it was making a serious bid to become the most politically and theoretically avant-garde department in the country), is highly significant. Perhaps the time has finally come for a national discussion about what academic freedom is, why it matters, what it protects, and, crucially, where its privileges end.

Polonius writes:

[W]hat on earth is wrong with professors urging activism? Professors are the canaries in the coal mine; they're often the first ones to see what's gone wrong. If they don't urge activism, there's often no one who will.

Similarly, in the comments here, Ben Wallace writes (and I've added links):

Fish argues that advocacy of ideas is the dividing line between legitimate and illegitimate speech in a university. This is an acceptable normative position but the position is inconsistent with academic freedom as practiced at the UW since the 1890s. Under Fish's standard, Richard T. Ely would have been fired, not defended, for advocating socialism and encouraging activism. Fish's position, if implemented, would undermine a long-settled standard of academic freedom by attempting to eliminate partisan advocacy of ideas.

Is Fish's idea at odds with "The Wisconsin Idea"? If so and if Fish is right, we have a huge problem here.

ANOTHER UPDATE: Let me first say that by writing "If so and if Fish is right, we have a huge problem here," I mean to suggest the likelihood that Fish is wrong.

Southern Appeal writes:

[T]his is a bit of a strange argument for Fish, who has made his name (outside literature circles) by pressing the view that we can’t separate ourselves from our basic beliefs and that there is no neutral ground....

[T]here’s something to Fish’s distinction between “teaching” and “indoctrination” and in the idea that the classroom isn’t supposed to be a recruiting session for one’s pet projects, however noble they might be. But that doesn’t mean, I think, that teachers need to separate themselves from their views. ...

[T]he detachment model is deficient [because] it subtly teaches students that what smart people do when faced with controversial subjects is to take an air of detached neutrality, cooly surveying the various options, and declining to embrace any of them. My experience as a teacher has been that students don’t really like to get engaged in arguments over controversial subjects -- the detachment model merely reinforces that tendency.

This goes along with something Ben Wallace and I have been writing in the comments here. Ben says:

Under Fish's rule, a faculty member in the South in the 1950s could not embrace and urge the idea that segregation is wrong and that students should act to remedy the situation. The only thing that would be available to a faculty member in that situation [w]ould be dispassionate analysis of the benefits and costs of segregation and a discussion of the different arguments behind segregation. Allowing advocacy and urging students to engage all ideas has demonstrated more effective than efforts to create speech codes, which is essentially what Fish has come up with.

I add:

[I]f the university required teachers to take this dispassionate, neutral stance, it would exclude a certain type of emotive, engaged person who actually is an excellent teacher. The drier, abstract folks would get more jobs in Fish's ideal university... and the students would get more... bored.

YET ANOTHER UPDATE: Jim Lindgren has a post titled "Astrology, Fish, Althouse, and 9/11 Conspiracy Theories." He's into the astrology subject:

I have actually been studying who believes in astrology. Some indices of conservatism use a belief in astrology as a measure of how conservative a respondent is. Yet Democrats are more likely to believe in astrology than Republicans, with the most conservative subgroup -- conservative Republicans -- being among the least likely to believe in astrology.

That makes me want to remind you of this old post of mine from back when were were all talking about Jerome Armstrong (which may well be what prompted Lindgren's study). I have no idea what the politics of believing in astrology are. I don't see it as having anything to do with politics, but it has something to do with being unscientific. I think there are lots of unscientific folks out there, and neither party is completely anti-science or bound to science.

"Although no one is being jailed today for speaking out against the war in Iraq, the spirit of intolerance for dissent has risen steadily..."

Does John Kerry make any sense? Believing in your own policies and disagreeing with your critics isn't the suppression of dissent. Strip away the paranoid rhetoric and Kerry would only be saying: The President fails to heed compelling arguments.

UPDATE: Jim Lindgren skewers Kerry for continuing to misattribute that dissent-patriotism quote to Jefferson. But wouldn't it be great if Jefferson had said it? Kind of like "fake but accurate": misattributed, but the kind of thing he would have said.

MORE: Vikingpundit: "Ridiculing Kerry is the highest form of patriotism."

Live-blogging the Bloggership conference!

I'm here, in the nerdy front row, and I'll be live-blogging all day.

Here's the link if you want to listen. No video, so you'll just have to picture a bunch of lawproffy types in a cavernous auditorium at Harvard Law School.

Next to me is Randy Barnett, who's reading my blogging on his Palm Treo 650, showing me that he's reading it, taking a picture of me blogging, and emailing me the picture to blog. Is that self-referential enough for you? It's really, really bloggy. And we're just getting started.

The photo:



Don't you love technology?

Gordon Smith is nudging me and saying pay attention. Good point! Live-blogging should entail paying attention. Paul Caron is talking. And Gordon is also live-blogging. Do we care about what the speaker is saying or what the bloggers in the audience are blogging about it and linking to each other and blogging about the blogging?

9:13: Here's the agenda, listing the times of the speakers. Paul Caron is doing the introduction, assembling a lot of statistics about blogging and scholarship. Paul used a lot of PowerPoint slides. There's a huge screen, and I haven't got slides myself. Now Doug Berman is speaking, and he's just displaying his blog on the big screen. So I guess I'll end up putting mine up too and that will mean this very post will be up on the screen. Should lawprofs be blogging?, Doug Berman asks. Hey, Randy's commenting on this post, I just noticed, causing him to turn that Treo thing away. I have to read it the tech way, after he posts it here.

9:22: Here's Gordon's live-blogging post. He notes the many empty seats in the room, so we big bloggers aren't such a huge draw. Somehow, I think the students are probably sleeping at this hour. Or are they studying or taking exams? Is anyone listening to the live feed? Gordon is putting together his PowerPoint slides, Googling for a picture for "network."

9:27: Berman rejects the notion that lawprof blogs are like listening in on a faculty lounge conversation. "It's not as robust and engaged as the law professor blogosphere is." I'm trying to think if things in Lubar Lounge are "robust and engaged." Randy tells me he can't post his comment because he doesn't have a Blogger account. Email it to me:

It is divine to be seated next to Ms. Althouse watching her at work . . . I mean at play. Maybe she will let me borrow her PC so I can post a link on the Volokh Conspiracy to her blogging here. I have not yet installed a blogging client on my Treo 650.

He used the Althouse code word "divine," but he called my PowerBook a "PC."

9:37: Larry Solum says blogs aren't changing anything about legal scholarship but are manifestations of other changes. He loves very long law review articles, but concedes that no one reads them. Yes, it's a funny thing about blogging: it's read. You have these elaborately written things that aren't read, and then everyone thinks of blogging as just thrown together. But short posts can be carefully written, and they can embody ideas that you have thought through in more formal scholarship. Larry's saying that short form "disintermediated" writing is a trend, and not just in blogging. He'd like to see a Wiki law encyclopedia.

9:47: Kate Litvak, commenting on the laptops in the audience, says she's going to ban computers in the classroom. Is she trying to tell me to to close the laptop? She's the panelist who doesn't have a blog.

10:05: Paul Butler starts the commentary on the articles, which he finds insufficiently excited about blogging. He says: "The blog is walking up to legal scholarship and slapping it in the face."

10:10: Butler asks, "What if law review articles had Site Meters?"

Eric Muller blogs a contribution to the scholarship and blogging conversation.

10:17: Jim Lindgren: "Why do you want to know if it's scholarship or not?"

10:35: Ellen Podgor says that before she started blogging -- at White Collar Crime Prof Blog -- she had never been quoted in the Wall Street Journal. She teaches at Stetson, note well. The reporters used to call lawprofs based on their law schools. Blogging can shake up the hierarchy and give different people a chance to be heard.

11:10: Gail Heriot says blogging is fun and lawprofs can do whatever we want. That's stating the problem plainly! "The legal academy has turned inward on itself," she says, describing what legal scholarship has become. It doesn't speak to lawyers and judges. Blogging lets the lawprof get back in connection with the practical legal world, to influence people on the issues of the day.

11:22: The audience has gotten a lot bigger since the break. I wonder if people in the room are reading my simulblogging. Leave a comment! Or are you going to tell me you can't register with Blogger? Email me, then (my last name, followed by @wisc.edu).

11:26: Orin Kerr starts off funny. He uses the computer on the lectern to check his Site Meter statistics. He's all, "Hold on just a sec..." Then he pretends he's accidentally brought his old notes from a 1999 conference called "Listservship: How Email Is Changing Legal Scholarship).

11:35: Orin ends by saying that if anyone is live-blogging the conference, we should say that he got thunderous applause and a standing ovation. Now, Gordon is up and he starts by displaying this post of mine, photo and all. He calls attention to the part about how he's putting together his PowerPoint slides, and then that's his intro into his PowerPoint presentation.

11:45: Gordon does care about whether blogging is considered scholarship, because he wants to legitimate what he's doing. Randy Barnett is next, and he frets about the "flight from scholarship," which has long been the "dirty little secret" of lawprofdom. "It's a syndrome," one symptom of which is saying nobody reads legal scholarship, and it doesn't matter. "I should also mention that a lot of law professors don't like teaching. Or serving on committees." Lots of lawprofs are looking for "something else." And along comes blogging, and the self-justifications of the lawprofs who get into it.



12:00: Michael Froomkin mentions classroom blogs. He suggests that lawprofs write 1 or 2 page posts reviewing long-form scholarship.

12:10. Question time. They've got a microphone now. The first question is about the "performative" nature of blogging, meaning that bloggers are performing for an audience.

2:00. Back from lunch, and now Glenn Reynolds is video-ing in his talk. He did not -- as I thought he might -- laugh at us for going to the conference, us low-tech losers. Walking to lunch, we were talking about the coming video'd-in performance, and Randy Barnett commented on how Glenn was going to be a 12 foot head on the screen, then said that Glenn Reynolds actually was a 12 foot head, which is why he couldn't appear in person. Waiting for the talk to start, Jim Lindgren compared him to Orson on "Mork and Mindy." Glenn compared himself to some other pop culture character on a screen, but I've forgotten which one. Anyway, Glenn's talking about why there are so few libel suits against bloggers. Answer: Bloggers are unlikely to commit libel. They're big on support, and their mistakes get pointed out and corrected quickly. Also, bloggers are less trusted so the crap they (we) say causes less harm.

2:15: Eugene Volokh is talking about blogging and liability. Lots of detail: listen to the podcast. Should bloggers get worse treatment than traditional journalists? That's just one of many things he covered.

2:30: Eric Goldman has a very specific topic: group blogging activities. Being a solo blogger, I guess I don't have to worry about these problems... unless you commenters are causing problems.

2:38: Jim Lindgren types with one finger. You rarely see that anymore.

2:50: Betsy Malloy is talking about anonymous bloggers and what rights they have to preserve their privacy.

2:55: Daniel Solove is comparing Eugene Volokh and Jessica Cutler (the "Washingtonienne"): both so love to blog about sex.

3:45: My panel is about to start. I'm up on the dais now and feeling nervous, even though I think there will hardly be any audience left (except out there is cyberspace, so I guess I can't just fool around). I check my email. A student at Georgetown has sent me this:



3:50: Larry Ribstein is listing the categories of lawprof blogposts: amateur journalism, self-expression, "blogicles" (little law scholarship articles), self-promotion (getting people to download your articles), and publicly engaged academic posts ("PEAPs").



The PEAPs idea is to "leverage your expertise" as you contribute to the public debate. You tap your serious scholarship, as you write about some timely issue.

4:05: I notice that Glenn noticed I was blogging about his head.

4:22: I'm done! Having written my article in bloggish form, I tried to do the talk in podcasty form (which is bizarrely stressful!).

4:25: Christine Hurt is talking about blogging without tenure.

4:28: Christine says that by blogging -- as part of reading the news every day -- she forces herself to keep up with legal developments, which gives her a headstart on the serious projects she begins in the summer. If she weren't blogging, she says, she'd be more consumed with teaching during the school year and putting off reading up on the current developments. This is a good point: I know I read cases as soon as they come out, cases that, pre-blogging, I would have just downloaded for later consumption.

4:38: Howard Bashman is up to comment on Larry, Christine, and me. He also has a lot to say about his blog, How Appealing.

4:50. Peter Lattman, the Wall Street Journal legal blogger, is next. He says journalists don't see bloggers as competition, but as fodder.

5:12. Nice questions. Listen to them in the podcast. Now, Harvard lawprof Charles Nesson is closing and talking about the Berkman Center, which sponsored the event. The internet, he says, has thrived because large institutions haven't figured out how to use it yet. There's a danger now, and he has a proposal, which you can hear on the podcast.

THE END!

ADDED: Douglas Berman was live-blogging here. And Larry Solum sort of disagrees with me here (that is, he thinks that to be taken seriously, a law scholar had better keep the fun stuff on a separate blog). Solum is concerned about how "academic administrators" will figure out how to reward the part of the blog that deserves to be considered part of one's professional work. I'll just say that I have not encountered this problem at the University of Wisconsin Law School and assert that that makes my school cooler than the schools that fret about clear line drawing, like a child eating dinner and worring that the meat is touching the mashed potatoes!

Meet the bloggers.

There's that big "Bloggership" conference at Harvard Law School this Friday. Not only can you attend this conference -- it's free and open to the public -- you can even hang out in the Zephyr Lounge with us the night before the conference, Thursday, 9 to 11 pm. (The Zephyr Lounge is at the Hyatt Regency Cambridge, 575 Memorial Drive.)

It sounds disturbingly intimate, but all these characters are doing it: Randy Barnett, Howard Bashman, Douglas Berman, Paul Butler, Paul Caron, Michael Froomkin, Eric Goldman, Gail Heriot, Christine Hurt, Orin Kerr, Peter Lattman, Jim Lindgren, Betsy Malloy, Ellen Podgor, Larry Ribstein, Gordon Smith, Dan Solove, Larry Solum, Eugene Volokh, and me.

I wonder if anyone will blog about it.