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August 15, 2013

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AGR

"No point in making moral judgments about the past" No point at all?

Paul Horwitz

I believe the statement was, "In general I see little point in making moral judgments about the past." Not "no point," and not "never." But as a general rule, yes, that's my view.

AGR

Interesting.

Orin Kerr

Eric, if you're just arguing that social norms are not monolithic, and that people often know of counterarguments against positions they hold, I don't disagree. But I'm not sure why that point is responsive to the position you are criticizing.

Perhaps it would be helpful to make the issue concrete by way of an example. Today, a lot of people -- and to bring in anon's concerns, many legal academics in particular -- feel that opposition to same-sex marriage reflects bigotry. But public opinion has changed very quickly on that issue. A lot of people who passionately favor same-sex marriage today had a different view just five, ten, or twenty years ago. My sense is that if you ask people who today favor SSM why they opposed it five, ten, or twenty years ago, they will usually give you an answer based on the "things were different then" position you criticize. But I don't think that answer is meant to suggest that past views were monolithic, or that the counterargument was unknown. Rather, it is meant to suggest that the view of same-sex relationships as fundamentally the same as opposite-sex relationships was itself not yet widely held.

Going back to an earlier point, I also think you are wrong to dismiss "anon" as a coward for not including his name. Based on my read of his comment, "anon" is speaking from the perspective of an outsider who is condemning the mainstream of academia for its dearly-held values and perspectives. Indeed, he appears to be suggesting that those cherished values may themselves reflect bigotry. Whether anon is right or wrong, I would think that's the kind of confrontational speech that best justifies anonymity.

Anon

Personally, I generally post anonymously wherever I can. I don't see much reason to permanently attach my name to what I see as an essentially ephemeral type of communication (no one will care about my comments here in more than a few days, except perhaps future employers, clients, etc. searching my name for unrelated reasons). That isn't to say that I never attach my name to a position, but I prefer to be selective about when I do so.

Jack Chin

To the extent that we celebrate the past today, through naming buildings and erecting statues, say, I think we should and inevitably do make moral judgments about the past.

I also think there is a difference between people who happened to share the prevailing views of their time and leaders and shapers of those views.

Alfred Brophy

Related to judgments about the past (and revisiting judgments made *in* the past), yesterday the Tulsa City Council voted to change Brady Street named from Wyatt Tate Brady to Brady Street named for New York and Civil War photographer Matthew Brady. I find this rather odd -- and something I've never seen before. I'm guessing we're not going to see this again anytime soon -- a renaming that is not really a renaming. But time will tell. And in the interim, I hope that people in Tulsa use this as an opportunity to learn more about the past and its connections to the present.

AGR

Of course we all make judgments about the past. Historians do it by the way we present material; what we choose to put in and what we leave out. History is, to a great degree, a moral enterprise.

AGR

That reminds me of my hometown. The "black" school where my mother taught and where I went to Kindergarten was named "Booker T. Washington". After integration it became, what we called an "intermediate school". There was some discomfort at the thought of white kids going to a school named for a black person. So, it became just "Washington" Intermediate. The white kids could be comfortable imagining that they were in George Washington Intermediate School and the black kids could go on thinking it was Booker T.

Alfred Brophy

I'm not the hugest fan of renaming, but there was a good case for it in Tulsa. If the community wants it -- particularly the people who live/work along the street want it -- that seems appropriate. This is hardly a renaming.

Regarding renaming of schools -- I was in Powhatan County Virginia recently and saw the formerly all white school (now the county health department). It used to be call the Powhatan School (or some such). The segregated school building doesn't exist any more, that I could find. It was called the Pocahontas School. Now there's a Pocahontas Elementary School in Powhatan.

Eric Muller

Orin, I disagree with you when you hypothesize that the common reason people give the "things were different then" answer is that they wish simply to communicate the observation that a view now widely held used to be not widely held.

We have to remember the context in which the "things were different then" argument typically arises (or at least the one my post is about). It's not offered as an observation or a description of an earlier time; it's offered as a form of defense against current judgment. The argument is exonerating: do not judge that earlier time by your standards, because theirs were different. You might be horrified that someone would choose to do this thing today, but back then, people didn't really see themselves as "choosing" anything; they were just doing what people did in their day. Just going with the flow.

Have others not had this conversation before, many times? I feel like I have had it or witnessed it over and over again in my life, and not just about troubling historical episodes.

Eric Muller

Orin, you also said:

"Going back to an earlier point, I also think you are wrong to dismiss "anon" as a coward for not including his name. Based on my read of his comment, "anon" is speaking from the perspective of an outsider who is condemning the mainstream of academia for its dearly-held values and perspectives. Indeed, he appears to be suggesting that those cherished values may themselves reflect bigotry. Whether anon is right or wrong, I would think that's the kind of confrontational speech that best justifies anonymity."

It might best justify anonymity, in the sense of being the most representative of the situations in which a person would wish to be anonymous, but does it actually justify anonymity? This anon wants to condemn the legal academy for dearly-held beliefs, and call us bigots for it. Fine. Make yourself happy! I still don't get why he/she can't put his/her name to it. Don't understand it at all.

There's an adjective for shouting provocative things at people and then scampering out of sight when people look to see who said them: cowardly.

anon

Eric! Have you thought about this issue?
First, I didn't condemn the legal academy for deeply holding beliefs. I asked you to consider, in the context of your original post, whether certain of those beliefs, in time, may seem as bigoted and wrong as some of the examples you cited.
And, I pointed out that the dominant culture in the legal academy is perhaps too quick to attack those who might express a counter-argument.
YOu have responded in a manner that I submit proves the point. You are attacking me, not the issue.
Remember, you are condemning a number of people who post as "anon" - a growing number in fact. You remarked about this fact yourself. You wondered aloud what they are "afraid of."
Could it be, perhaps, that most prefer not to be subjected to the sort of name-calling and nasty personal attacks that so often occurs here on the FL?
You seem to have no explanation about the recent increase in comments signed "anon" - so I offered one.
Mine is that most people do not prefer to be subjected to nasty personal attacks - or worse - simply for expressing an opinion on a blog.
There must be some sort of prize for this part of your comment:
"There's an adjective for shouting provocative things at people ..."
For example, "shouting" things like - "Shut up" "Cowardly" "Crazy" ... etc.?
What is that adjective, Eric?
Please understand, Eric, it is this sort of conduct that causes so many people to prefer to post as "anon."
Finally, if you read the post to which you refer, you will see that Orin Kerr understood my point perfectly.
Sorry, Eric. But you are not being very persuasive here.
If you don't want comments as "anon" adopt that policy. But, you don't get to allow that function (which has a place, as some recognize), and then endlessly insult those who use that function with whom you vehemently disagree (often, it seems).
BTW, if you want a role model, it is Al Brophy. He appears in all respects to be a fine scholar and a true gentleman.
I may fall short of this at times.
How about you, Eric?

Eric Muller

Have I thought about this issue? Good god yes.
I've been blogging since 2004, and have SO been there and SO done that with anonymous commenters.
The biggest reason the blogosphere can be a cesspool is anonymity.
I almost never blog anymore, and anonymous commenters are much (though not all) of the reason why.
I just have no interest in sparring with people who won't put their names to what they say.
You may not like what I'm saying or how I'm expressing myself, but at least you know it's me saying it.
I'm not trying to be "persuasive."
If I knew who you were, or believed you had any reason to feel in any way accountable for what you say, I wouldn't be addressing you in this way. If you feel you need to speak to me from behind a curtain, and to keep me from knowing who you are, I feel like you're refusing one of the basic preconditions for civil discourse, which is accountability.
This will be my last comment on this thread, and probably on any thread, in response to an anonymous commenter.

anon

Eric:
Given the vehemence of your beliefs about the impossibility of civil discourse if anonymous comments are allowed, it seems you must be unable to block "anon" comments on this blog. Perhaps you will be able to convince others.
Thus, I could suggest that perhaps you should reconsider whether your position - "I'm not trying to be 'persuasive'" - is logical in this context.
Moreover, your argument about civility is also obviously illogical. You appear to defend incivility if the uncivil person's identity is known but you appear to attack civility if it is posted by an "anon" (as you say you will not respond to ANY anon, not just an uncivil anon).
Again, given your views about "anon" comments, perhaps you may wish to reconsider whether your arguments are thought to be well-taken.
Finally, the fact that you won't respond to this, or any other "anon" comment must be considered by many a blessing, given the seemingly admitted inappropriate nature of your previous "comments."
What is particuarly disturbing, though, is the nature of your defense of those comments.
You say, "If I knew who you were, or believed you had any reason to feel in any way accountable for what you say, I wouldn't be addressing you in this way."
So, Eric, do you believe it is morally and ethically appropriate to verbally abuse persons whose identity is unknown to you because those persons joined in a discussion that you started on a blog that permits "anon" comments?
How far would your justification take that abuse?

Eric Muller

http://www.youtube.com/watch?v=PqeJjNyWqB4

anon

That's about the level to be expected!
It is a response to an anon comment though.
You should have posted that link anonymously!

anon

Another interesting aspect of the debate with Eric:
He states: "This anon wants to condemn the legal academy for dearly-held beliefs, and call us bigots for it."
The pronoun says it all. Along with Orin Kerr's "outsider" assumption, it is clear that anyone who takes on any part of the received and prevailing wisdom is presumed to be "outside" the legal academy.
Doesn't this really say it all?
How can the author of the original post not see this glaring contradiction?

anon

The Supreme Court, in McIntyre v. Ohio Elections Commission:

"Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular ..."

Of course, Publicus and the Federal Farmer would agree.

But not Eric. He "has been blogging since 2004, and [he] have SO been there and SO done that with anonymous commenters."

Jack Chin

There's a Mass. Commission Against Discrimination opinion on this from 1997 (Stropnicky v. Nathanson), which was the subject of a symposium at the Western New England Law Review in 1998. Here's one of the papers which has the cite:

http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?article=1246&context=lawreview

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