The Academic Discourse of Law or Foucault in Cyberspace

I would like to thank Al Brophy,   as well as the readers and commentators who have responded to my recent posts here at Faculty lounge.  The past four posts to this blog were part of an experiment. I decided to   take a cue from Foucault.  In “the discourse on language,” Foucault wrote, “the production of discourse is at once controlled, selected, organized, and redistributed according to a certain number of procedures.” Foucault described his method of unmasking the power relations at the root of these discourses as archeology.  I wondered if the new medium of blogging might not help me do something analogous,   reveal something about contemporary legal discourse by exploring  an ethnography of power.   Although academics are used to analyzing power relations, they are generally uncomfortable having these insights applied to their own practices, an aversion that is all too human and certainly understandable.  Still, we would be remiss if we did not include our own scholarly world within the purview of our field of critical vision.   I   tried to use these posts to push the envelope and see what types of reactions I would get.  I intended to be provocative, and I have succeeded. I hope to analyze these various responses and will be presenting a preliminary version of my findings at the upcoming Organization of American Historians Meeting in April.

A few quick points are worth making with regard to some of the substantive issues discussed here. I think that there is an important difference between the concept of the police power and the changing conceptions of that power, particularly as they were developed in later legal doctrine.  Although it is possible that Mike Rappaport and I were simply talking past one another, as David Bernstein suggested, I am inclined to think there is more going on here. I think that the article by Ben Barros on the early history of the police power has a number of contributions to make this debate and I hope it gains a wide readership.

As far as   Mary Dudziak’s point goes, I  suspect we would not agree about the  role of humor in the blogosphere in particular, and the academy in general.   Orrin Kerr’s question, I must confess, remains the most interesting one yet posed.  Although I recognize that theorizing first, and researching later, or sometimes never,  has become quite common among some constitutional theorists, this is ultimately not a good thing. I find much originalist writing, especially theoretical writing in this genre, particularly egregious in this regard.  Obviously, a short think piece can sometimes be helpful.  At the same time I don’t think that writing constitutional theory absolves you from doing your due diligence, particularly when drawing on historical sources or philosophical theory.   These issues, however, are not well suited to debating on a blog.  It is an issue that I think merits serious attention, and perhaps, a bit more humor as well.

 

 

Comments

[Human subjects police]

So, assuming that this post is sincere -- but oh, to contemplate the delicious possibility of a ruse-within-a-ruse! -- and you actually plan to analyze and present commentators' reactions to your Foucauldian experiment as "data," I'm curious whether you received IRB approval for this human subjects research, and either the prospective informed consent of your "subjects" or a waiver of this requirement from the IRB?

FYI, I have no dog in this originalism fight. (Trust me on that.) I am, however, interested in research regulation, and am genuinely curious about the extent to which legal academics realize when their activities are subject to IRB approval. You seem like you can dish it out pretty well, so I figured you could probably take it, too.

[Alfred Brophy]

Human Subjects,

Since everyone I study is long since past away (one of the many virtues of working on 19th century legal history!) I don't know as this is relevant to my work. But I am interested in this issue: if I were to write about the reaction of people to a blog post, would I need IRB pre-approval? That seems rather shocking to me, if true.

[Alfred Brophy]

Human Subjects,

Further to my point that it would be really extraordinary if I needed IRB approval to write about blog comments (even if I planned such use of comments in advance of a post), isn't such "research" covered by 45 CFR 46.101(b)(2) or (b)(3).

http://www.hhs.gov/ohrp/policy/checklists/decisioncharts.html#c2

Thanks for asking the question -- it is pretty interesting to look at what needs IRB pre-approval and what are categorically exempt. Fun times on Friday evening in Chapel Hill while everyone else here is watching the Heels in the Sweet 16.

[Bradford William Short]

I have said many words in this pseudo-debate, but now I will say just a few: This is one of the most shocking and immoral things I have ever read, from a tenured professor of history no less, in my life. If I read Cornell correctly (and given what he has just said above, no one can ever be sure of what Cornell is truly saying ever again), he now tells us that he deliberately made extreme claims that he himself did not believe on this blog, just to see what "reaction" he would get from those of us reading foolish enough to take him seriously. I, knowing something about medical ethics, can say that that does not require IRB approval. But it is a shameful way for a historian to behave. I have had numerous conversations over the last ten years about legal history, on both methods and the actual history we are all studying. I have said things that are wrong, and I have said things that are right. I have said things that are smart, and I have said things that are dumb. But I have always said what I have said in good faith. It is a minimal requirement from me on all others that they are at least as honest with me as I am with them.

And frankly Prof. Brophy, I cannot believe you think this is a time to make jokes about the NCAA Tournament. I thought you brought onto this site serious, honest posts by historians who were telling us what they really thought about major issues and events in history. Instead Saul Cornell reveals to all of us that he acts towards us much the same way that the Joker acts towards Batman during the course of one of his capers. Again, one does not need to consult an IRB to know that that is beneath the ethics of the profession. And I cannot believe you don't find it embarrassing that you offered such posts to us reading.

[saul cornell]

Making jokes is actually serious business, but this is a fact that humor challenged people seldom understand. (I would suggest you look at the work of Derrida if you want to see an excellent illustration of this point.) If you think that humor implies dishonesty you need to watch the Daily Show or Colbert. In fact, humor is sometimes the only way to get at the truth—particularly when the system is corrupt. I should also point out that I have been talking about my experience blogging with my Fordham students, undergraduates and law students. Do you see that as an ethical lapse as well? I would be happy to share what they think about your posts, but I think that might be best done in a less public venue.

[Alfred Brophy]

Mr. Short,

Couple of points here. First, to recap -- we agree that IRB pre-approval is not necessary. I spent time looking this up yesterday because "human subjects police" raised an issue I was interested in. Turns out it's a non-issue; maybe he was just joking, but I'm glad that I learned a little more about this topic. Second, as to your statement "This is one of the most shocking and immoral things I have ever read, from a tenured professor of history no less, in my life." That is at least a little over the top, no? As to shocking things that come from the pens of American historians, I might suggest you read U.B. Phillips's American Negro Slavery. Or, better yet, Thomas Dew's Review of the Debates in the Legislature. Then we can start talking about immorality in the history profession. Third, one of the virtues of the faculty lounge is that we often have people saying interesting things. Sometimes I agree with them; other times I very much disagree. I'm glad that Saul's been posting here -- and I would add I'm glad that you've been responding -- on an issue of central importance to the legal profession.

[Bradford William Short]

Prof. Cornell: As I read your post above you wrote "provocative" things, not because you really meant them, but rather because you wanted to "see what types of reactions I would get." You can tell your students whatever public information you want. But, if they and you approve of such a way of talking to other persons who care about scholarship, you teach them to do very much ill, and their attitude to that teaching reflects poorly on them.

Prof. Brophy: You are right to say that there are worse things historians have done. But, I have never seen a discussion amongst historians online where one of the participants admitted that he/she was writing "provocative" things, not because he/she really meant them, but rather because he/she wanted to "see what types of reactions" he/she "would get." I am shocked because that is a first for me; and I think it speaks for itself that it is unethical.

[saul cornell]

Although one would think that a law school graduate would not need to be reminded of how to use a dictionary, I guess you can't really assume such things any more. You certainly can't assume originalists will do the necessary research before publishing, so why assume a command of the most basic research skills. Webster’s Dictionary provides the following definition of provocative: “serving or tending to provoke, excite, or stimulate.” There is nothing about the word provocative which remotely suggests insincerity. I think you need to focus more on your research and less on the internet.

[Vladimir]

Prof. Cornell never fails to crack me up.

[Bradford William Short]

I will leave it to readers to decide what "push the envelope" and "provocative" and "experiment" mean in the above context. I merely point out the irony of the great hater of Heller coming on this site and saying, in effect, the context of the post above matters not a whit, but we can just look up a word in a dictionary. It is tremendously sad that any part of my alma mater pays you a penny given how you substitute insults for arguments, say things that make people wonder whether you were ever serious in your attacks to begin with, and that allow you to accuse people of things that mean that they aren't even scholars, but to then also say--when scholars of all stripes show outrage at your behavior--"no, no I meant none of that, I was just being provocative." From Mary Dudziak on the left, to Michael Rappaport on the right (who, again, I think is not a serious historian, but is at least civil in his internet discussions, and never put up graffiti like this on his blog), everyone seems to be sick of you Prof. Cornell.

And so am I, so I sign off by saying to the few left reading, "please, still come into legal history, most people in it, right and left, are nothing like Saul Cornell...it is a great place to be!" Oh, and last, Prof. Cornell, you wrote these posts, you keep on sliming people in them, you put your nasty Dissent article into a place where it would be on the internet, you write on the internet something that is a non-take-back take-back, or an “experiment,” or God knows what else. None of these things are a scholarly article. It is you who needs to focus more on research and less on the internet.

[saul cornell]

Mr. Short really needs to read some Derrida, Foucault, and he might do well to read some of the critiques of the legal publishing process, perhaps Robert Spitzer’s recent book on the subject. My basic point is that new originalism and Second Amendment originalism are ideological movements, not true scholarly paradigms. (I am pretty much with Rorty in not following post-modernism to its most radical conclusions about truth—but that is a complex issue.) Given these facts, one must adopt a different scholarly method to expose, deconstruct, or in Foucault’s terms , begin the process of exposing this particular discourse by the method of “archaeology. ” So what does provocative mean in this context, it means adopting a different scholarly voice and rejecting certain scholarly conventions that are typical of print publication. (Humor would be one example.) The purpose of this exercise is show how legal authority and originalist discourse naturalize the ideology of originalism. The responses to my little radical exercise, don’t surprise me, they are pretty much what I might have expected.