Readings from Volokh…

Over the last few days, there have been several interesting posts on Volokh’s blog that warrant comment. Ergo, a Volokh-only roundup.

1. Eugene on a “fact sheet” allegedly including “have sex with me or I’m dumping you” among the various forms of “force” that constitute coercive sex, along with more traditional methods of rape like violence and drugs.

I haven’t read the report, so I don’t know how distorted the reading is (I suspect a non-zero level of motivated cognition leading to distortion), but the post is notable less for bickering over who made overinflated rape statistics claims than for two side-issues:

a) People must have some really fucked-up relationships if the conversation “have sex with me or we break up” is happening a lot. I mean, think about it. First of all, why would you want to have sex with someone who has to be browbeaten into it? And (on the other hand) why would you want to stay in a relationship with someone who browbeats you into sex? I don’t get this at all. Sex is only fun when both people are into it. Otherwise, how exactly is it better than masturbation? And relationships are only fun when people aren’t constantly threatening each other with breakups, etc. I agree, it isn’t rape, but relationships where this is happening are probably abusive.

b) Many (though not all) of the comments are really horrible. Please, please, for god’s sake, if you don’t know anything about philosophy or economics (the disciplines where these sorts of questions tend to come up), please, please don’t start spouting nonsense about whether or not economic coercion exists and how you can tell coercion from a mere transaction. These are hard questions, and you look stupid if you just babble mindlessly about them. (I thought about including law in that category, but lawyers say such stupid things about these issues that, unlike training in those other disciplines, training in law does not guarantee intelligent comments about them.)

2.Orin on HLS’s joining the crowd of no-grade-givers. As Eugene aptly points out, “Harvard would technically have four grades — Honors, Pass, Low Pass, and Fail. My guess, though, is that Low Pass and Fail would be extremely rare, and 98%+ of all grades would be Honors or Pass, as they are at Yale. The shift then is basically from at least five commonly used grades (A, A-, B+, B, and B-, unless I’m mistaken) to two.”

Orin puts on the alumnus hat and expresses disappointment, mainly because it represents a retreat from meritocracy. I think this warrants my putting my own alumnus hat and saying “huh?” It’s an open secret at HLS, and, I think, at pretty much all other law schools, that the examinations are very bad at making the sorts of fine-grained discriminations necessary even to give out five commonly used grades. The conventional wisdom is that grades are basically random, though there might be very broad truths to be gleaned in the aggregate (the error isn’t so high that you can’t tell a difference between the very best and the very worst, over the entire record, by comparing a transcript full of As to one full of Bs). How is it less meritocratic to match the range of grades to the amount of discriminating power you actually have? If professors are as unreliable as everyone seems to think they are, why not just have them discriminate only between “good answer” and “passable answer?” So this alumnus says “it’s damn well about time.”

3. Then there’s this whole thread on law review editors making annoying edits. I have to reproduce the following exchange from the comments:


Worst law review editing story ever: I know someone who got a demand, from an editor from a very high-ranking journal, to drop a pin cite to back up the claim that Plato, in the Republic, talks about education.

Someone calling him/herself “Staff Editor”:

How is that the “[w]orst law review editing story ever”? Of course, the vast majority of readers will be familiar with the Republic, to the extent, I agree that it approaches common knowledge. But you must know that it is common practice among all law reviews to require citations for all factual claims, and–whenever possible–to cite to the source as precisely as possible. These rules are, though tedious for both authors and staff editors, generally helpful for the consumers of legal scholarship, who do often trace claims back to their original sources. Tangentially, rest assured that for each time an author is asked to provide a pin cite for a claim that should perhaps stand on it’s own (and note, as an additional aside, that usually it is the editors who will be required to find the pin cite, not the author), there are several other instances when authors either fail to provide citations of any kind for less-than-obvious factual assertions or cite to sources that do not at all actually support the claim that they are making.

In short, I’m sure there must be much worse law review editing stories than *that*.


Not knowing that the Republic talks about education is like not knowing that there’s a slave in Huck Finn. Would you like a pin cite for that proposition too?

Someone calling himself “Chris79″:

I agree with “staff editor” and I think you’re really missing the point of citations. Although law reviews do ask authors to cite factual propositions to prove that they’ve thought about it and can back it up, the MAIN reason law reviews are so citation-heavy is to allow law review consumers to use a law review article as a bibliography. Very few people actually enjoy reading the stilted drivel pumped out by professors from beginning to end. The people reading law review articles today are looking for quick support for specific propositions.

Moreover, professors often have a very stitled idea of common knowledge. I bet that more than 95% of Americans could not tell you what “The Republic” was about or even who wrote it. Even among the very well educated lawyers, students, and academics who typically consume law review articles, I imagine the vast majority are mostly unfamiliar with The Republic. Adding a citation for these people allows them to easily find the source if they are confused, without really burdening those readers who DO already know.

Also recall that only part of Plato’s Republic talks about education. Those law review consumers who know about Plato’s Republic might be inspired by the article to reread (or read for the first time) those parts related to education. Why not make it easy for them to find it?

This calls for a blogospheric poll with a highly biased sample. I would like to ask anyone who is reading this who a) regularly consumes law review articles*, and b) did not know that Republic at least discusses education in some capacity, to post a comment. Perhaps I’m assuming a little too much Plato? But don’t they require at least a passing familiarity with the cliff’s notes to the most important work of philosophy in human history in most undergrads?

*Secret strategy to avoid getting responses to prove me wrong: let S be the set of people who regularly consume law review articles. S={Ø}


6 Responses to “Readings from Volokh…”

  1. Mike Says:

    I met a YLS grad who had been on a law journal. Ninth Circuit clerk. I mentioned the Nicomachean Ethics. No clue. I then said, “Aristotle.” No clue. Really.

    I thought she was a fraud, so I looked her up on Westlaw. Found an article she wrote while on a journal. Did other due diligence. She checked out.

    So…………….. While I know what the Republic is and argues, maybe not everyone does.

    Also………. and I think we discussed this once at PTN…. How many people have actually read books vs. having a professor give them a summary of said book in Intro Class 101?

    Law profs want to sound smart. So they throw around Plato. Have they actually read his/Socrates’ dialogues?

    Once a law prof (HLS) mentioned something about Platonic Forms. I asked a basic follow-up question. It became obvious that she had probably somewhere been told about Forms, but she hadn’t spent any time reading the dialogues. The understanding that only time me with text will bring, just wasn’t there.

    So, yeah, you maybe give everyone else way too much credit. You assume that when they mention a book or author, that they have actually read the book or author. I’ve found the opposite, especially among law professors. Most people have no fucking clue what they’re talking about.

    I’m betting if you asked a bunch of law profs to identify who said (and where) that “Man is a social animal,” you’d get a lot of wrong answers. Really, try it.

    And that’s just basic Greek philosophy. Every law prof will blather on about the “overman” or “synthesis.” How many people have actually read Nietzsche and Hegel?

  2. Stuart Buck Says:

    It depends on how the citation arose. If it was just an offhand summary (e.g., “philosophers have been analyzing education for thousands of years, going back to Plato”), with no further analysis of Plato’s arguments, then I see no need for a pincite. If the author, however, was making a more substantive claim about Plato’s analysis, then I suppose precision is better, given that some authors do mis-remember something that they were sure they had read, and given that some readers would benefit from being pointed directly to the passage being analyzed.

  3. Kenny Says:

    S={Ø}, the set containing only the null set? So the null set is the only thing in the universe that regularly consumes law review articles? The null set can read? Or did you intend the von Neumann ordinal 1?

    (Sorry – couldn’t resist nitpicking your notation!)

  4. Paul Gowder Says:

    Hah, you are forgiven — my set theory is very bad. Good to meet you.

  5. Jason Wojciechowski Says:

    Just a late notice that I’m an educated person who couldn’t have told you the content of the Republic. I recall this being an issue over on Belle’s blog once: there’s too much basic knowledge to learn if we expect people to also get some depth in an area while they’re in school.

  6. Paul Gowder Says:

    Hmm… did your undergrad expose you to any philosophy at all? (Did you go to some kind of caltechish place where they pooh pooh such things?)

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