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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Friday, May 5, 2017

Why Faculty Workshops Should Not Be 'Safe Spaces': Law Profs Need To Be Adversarial (But Not Jerks) Because Of Law Reviews' Lack Of Rigor

The JerkFollowing up on my previous posts (links below):  Chronicle of Higher Education op-ed:  You’re Wrong’: The Case for Confrontation, by Joseph Heath (University of Toronto):

I’m starting to think that some of the strange behavior that has been gripping college students in the United States has begun seeping north into Canada, where I teach. For the first time the other day, I came across the suggestion — made by a graduate student — that a philosophical research talk should be a "safe space." The concern was not that department members were abusive, merely that we were sometimes insufficiently "supportive" of the speaker. Apparently we’re supposed to find nicer ways of telling people how wrong they are. ...

As people who are familiar with how philosophy works will know, it is one of several disciplines that has an adversarial culture. This manifests itself most clearly in the Q&A after a research talk. Basically, after people present their views, the audience tries to tear them apart. Every question is a variation on "Here’s why I think you’re wrong. …" The environment is not supportive; in fact, it is the opposite of supportive. Furthermore, because this is the disciplinary culture, philosophers tend not to preface their comments with ingratiating verbiage like, "First let me thank you for the rich and thought-provoking discussion." Philosophers go straight to the "Here’s why I think you’re wrong" part.

When being high-minded, we call this the "Socratic elenchus." As the name suggests, it has been around for a very long while. And philosophy is not alone in this — economics and law also have highly adversarial cultures. Philosophy isn’t even the most antagonistic. For instance, the disciplinary culture does not tolerate interruption — speakers are given time to make their case, after which we tell them why they’re wrong. Economics, as well as many business schools, has an "interrupting" culture, where speakers are given about two minutes to say something, after which they get interrupted and told why they’re wrong, or why their methods are flawed, or their research question uninteresting.

So what’s with all the unsupportive behavior? And why, despite the protestations of some students, is such a culture worth defending?

First, it is important to distinguish between "being adversarial" and "being a jerk." Consider the distinction between philosophy and surgery, a discipline that I happen to know well because my wife is an academic surgeon.

Surgeons are notorious jerks, a tendency that is clearly encouraged by the disciplinary culture. They are also extremely confrontational, sometimes (to me) shockingly so. They lose their temper, swear, and yell at each other a great deal.

At the same time, the disciplinary culture, with respect to research talks, is weirdly (to me) nonadversarial. When a surgeon gives a talk, the questions will almost always be softballs (e.g., "Can you elaborate a bit more on this?"). Then, as soon as people are out in the hallway, everyone will trash the talk (e.g., "Oh my God, what an awful study that was," or, "Can you believe they’re doing that to patients?"). And yet they never say it to the speaker. I don’t know how many times I’ve heard surgeons complaining about awful research and terrible talks, and I’ll say, "Did you tell them that?" and the response is always, "Oh no, of course not."

This example is illuminating, because it shows that the adversarialism of exchanges in philosophy or economics is not merely a consequence of the fact that so many philosophers or economists are jerks. As the example of surgery shows, it is perfectly possible to have a discipline full of jerks, who nevertheless sustain a nonadversarial discourse around academic research. (I should mention here that a great deal of the complaints about adversarialism have come from people who think that the underrepresentation of women in certain disciplines is a consequence of those norms. I happen to disagree — law is also highly adversarial, but that doesn’t seem to deter too many women — but that’s a subject for a different essay.)

When I ask academic surgeons why they never pose challenging questions at research talks, the answer is usually the same — they don’t think it matters because "it’ll never get published," or "the referees will catch the problem." In particular, when academic surgeons make methodological errors, or do their stats all wrong (which they often do), everyone knows that it will get picked up by referees, and so no one feels any obligation to make things uncomfortable for the speaker.

In other words, the practice of medicine, as well as scientific work more generally, is subject to much stricter methodological constraints than many other disciplines, particularly those in the humanities. As a result, audiences at medical talks do not consider it their job to impose quality control on academic research. ...

I don’t have to work very hard at thinking of ways that my view might be wrong [because] I have colleagues who enjoy nothing better. When it comes to assessing my work, they have no trouble at all "thinking the negative." So if there are obvious blind spots in my reasoning, I can be quite confident that they will be pointed out to me, in one of those unsupportive, adversarial Q&A sessions. The fact that the profession encourages, and even venerates, those who are able to ask the "killer question," functions very much like the scientific method does in the physical sciences.

Some disciplines are insufficiently adversarial. The vast quantities of gobbledygook produced under the heading of "capital-T Theory," I would conjecture, are enabled by the fact that literature departments have an excessively nonadversarial culture. People spend so much time pretending that what the speaker just said made sense — in one of those "rich, thought-provoking" discussions — that they start to think they actually understood it. Being supportive, or adhering to conventional norms of politeness, diminishes the quality of the academic work being done.

Thus it is inadequate to think of the academy as merely an institutional space in which people are free to pursue their own lines of inquiry. When it functions well, the university houses multiple systems of distributed cognition, each with an internal division of labor that makes the whole smarter than any of its parts. In some cases, intellectual collaboration takes an explicitly cooperative form, as when a research team works together in a lab. In other cases, the collaboration takes a more agonistic form, as when people vie for an opportunity to draw attention to each others’ errors.

Just as it is possible to be a jerk without being adversarial, it is also possible to be adversarial without being a jerk. The commitment to adversarialism arises from our professional role; it should not be allowed to become personal. Furthermore, the traditional academic virtues of careful listening, charitable interpretation, and collegial interaction retain their overarching value. The fact remains, however, that not all criticism can be constructive. Some ideas and arguments are genuinely devoid of merit, and we do their purveyors no favors by pretending otherwise.

Prior TaxProf Blog coverage:

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Life itself, is adversarial. We create our own "safe spaces" by crafting personal relationships with mutual understanding and where the normal adversarial nature is muted. Those are called friendships, or marriages, and the like. But they are the exception, not the norm.

Posted by: ruralcounsel | May 5, 2017 9:41:19 AM

As the post says, economics is highly adversarial. It is also supportive, though. There's always "You did X wrong", but there's also "You can fix Y by doing Z". Also, even if people think it's a stupid topic, the etiquette is usually that you express that carefully or not at all and just work with what they've got. Things get nasty only if it seems the presenter is trying to conceal flaws, which is rare. Also, economics is known for having perhaps the slowest and most interventionist referees of any discipline, so the idea in the seminars is that you want to hear the criticisms while you can still fix them rather than hear them first in a rejection letter.

It's SO important to allow questions and comments during a talk rather than just at the end. At the end, you can't ask questions about notation or for the speaker to stop and explain something again, or to say whether a certain assumption really matters to the results, or whether his data is at the county or the city level, etc. If everyone get lost halfway through, the rest of the talk is torture. And then at the end the questions have to be general and they're repetitive and in random order of the queue instead of a logical order and nobody can remember any of the technical parts of the talk. I hate law talks for this reason.

For a humorous example of how eager economists are to get comments even from half-educated jerks (not that all of the EJMR bro's are jerks, but some certainly are), see my request at Economic Job Market Rumors

Posted by: Eric Rasmusen | May 5, 2017 10:06:15 AM

Perhaps I have been fortunate, but I have always found workshops to be supportive environments. The vast majority of law professors have the emotional intelligence to offer constructive criticism in a non-offensive tone. Those who are emotionally ignorant (and there are a scattering of those out there) tend to suffer the inevitable consequence of that rather special form of ignorance. By the way, don’t assume that the inquisitors hold all the cards. Attempting to ask the killer question can be hazardous to one’s reputational health; the person at the podium has the potential for courteous professional dialogue and, if provoked, swift and merciless disembowelment.

Posted by: Veritas | May 5, 2017 11:19:46 AM