If there's a theme today, it's that unstated assumptions make for bad policy and many, many internet link sausages — neither of which is (ordinarily) the objective of those making the unstated assumptions.
- An interesting article in The Grauniad sheds some light on the problem of short-term thinking in (in particular) US government-related programs without coming anywhere near recognizing two structural causes: The mandatory elections to the House of Reprehensibles on a two-year cycle, and the prohibition on making appropriations more than two years into the future for anything related to "armies" (U.S. Const. Art. I, § 8, cl. 12), which is typically expanded to many — and perhaps most — other programs. Indeed, the latter formed a significant barrier to NASA during the dozen years of the manned lunar program after President Kennedy's speech, and eventually killed it. I must admit, though, that the rhetorical flourish that US politics have created "a banana republic with a reserve currency" bears rather too much resemblance to reality... or at least to perception, because that's what "banana republic" concerns. How many pounds of braid are there on your dress uniform, Senator Cruz?
- Here's another example of law's disdain for those of us who didn't go directly from undergraduate study to law school: The dumping of the same tired complaints about law journals into a story linked on the front page of the NYT (fake paragraphing removed for clarity, emphasis added):
These student editors are mostly bright and work hard, but they are young, part-time amateurs who know little about the law or about editing prose. Yet they are in charge of picking the best articles from among many hundreds of submissions written by professors with authentic expertise in fields the students may never have studied. James T. Lindgren, a law professor at Northwestern, once put it this way: “Our scholarly journals are in the hands of incompetents.”
Rather ironically, Professor Lindgren didn't note that once upon a time he was one of them, and may still be one of them. In my experience, the converse is more likely to be true: The students sometimes have authentic expertise in fields the professors may never have studied, but nonetheless persist in pontificating upon.
Law schools — particularly law schools that see themselves as "leading," such as Northwestern — are overtly hostile to second-career lawyers who actually know something about the world and other academic fields, and often know far better how to write and edit than do the instructors in legal writing (or many of the tenured professors). The profile of law-school faculty, particularly at those "leading" schools, further reinforces this... because law-journal membership is the only real path toward law teaching at schools that see themselves as anything other than three-year-long bar review courses (and even the majority of those). Conversely, students who know a damned thing about the sciences or technology get constantly ridiculed in class, because their contributions often consist of pointing out that venerated judges were wrong on the facts, the doctrine, and probably the law; the purported assessment of fault in Palsgraf (the case-of-dynamite-on-the-railroad-platform case forming a substantial part of the foundation in tort law) is a really obvious, and never acknowledged, example. (Yes, even a century ago chemists — and miners and construction engineers — knew that dynamite had to be rotated or it could "spontaneously" go boom.) Bluntly, most law professors who write in fields outside of the narrow confines of civil and criminal procedure do not have academically credible authentic expertise in those fields; as one obvious example, just count the number of law-and-economics "scholars" who have never taken an economics course beyond the "intermediate" undergraduate level, let alone earned a graduate degree in economics, or the number of articles purporting to "prove" something through an "empirical" analysis that relies on statistical tests appropriate only to epidemiology (or, worse, inverts that problem), or the number of pontificators on labor law who have neither managed labor forces... nor been in them.
Perhaps one specific incident from my own experience as a law-journal editor will help illuminate this. We received an article from an endowed-chair professor at an Ivy League school along with a request for an expedited review. We rejected the article out of hand because it was wrong: Its central argument relied upon bad [identity of related academic area withheld to protect the guilty], and (unusually for law journals) a majority of the Articles Editors had done graduate work in that area before attending law school (and doing well enough in law school to merit selection to the law journal). We double-checked both the specific arguments and the acceptability of the general analysis with sources we knew of, which we could access rapidly in those pre-online-open-access-journal days because we had more than ask-the-librarian familiarity with [related academic area]. That article was later published at another, supposedly higher-ranking journal and sank without a trace.
The problem is at least as much the people being selected to fit into the "structure" of law journals as it is the structure itself. Admitting this would require the legal academy to admit that it is not a good cross-section of the best-and-brightest, even within areas like procedure that really are the pure province of law, and the law profession as a whole to admit that it is hostile to anyone coming into law who actually knows anything through post-undergraduate study or life experience and can write about it. One look at any recent patent-law or environmental-law decision will confirm that the latter problem is endemic. Indeed, neither admission is going to happen any time soon. And Mr Liptak's article presumes a fact not in evidence: That scholarly writing in law occurs (essentially) only in the student-edited law journals.
Of course, the sky is not falling regarding law journals, or at least not only law journals; the situation in other academic fields is often worse. The fundamental problem here is one of terminology, buried in points 3 and 4 — the misuse of the term "author fees" for the accepted term in publishing as a whole: "vanity publishing." That's right: A substantial proportion of academic journals (including most of the commercially published ones) are vanity presses with a peer-review selection process plastered on top. Bluntly, this is worse than the student-edited law journal system decried in the NYT... and the less said about the NYT's process and the process of non-student-edited journals, the better. Consider, for example, the preselection process for being solicited to write for the Cato Institute-published Supreme Court Review; or, more to the point, consider the doctrinal and political predisopositions that led The Economist to emphasize some things and ignore others when criticizing scientific research and publication.
- The preceding bloated sausage, however, necessarily assumes that academic publishing is somehow necessarily better than commercial publishing (leaving aside, for the moment, that until the 1920s most academic publishing — aside from law journals and other university-sponsored periodicals — was done by imprints of commercial publishers). The counterexamples puncturing that particular balloon are legion, ranging from multiple rejections of Proust (justified, IMNSHO, but that's for another time) to rumors of a bidding war in eight figures for Angelina Jolie's memoirs (which I will not dignify with a link, and remind me of Bill Clinton's memoirs). The ultimate problem is this: The critics of the system are applying their own brand of rationality and 20-20 hindsight to something that is not an engineer-designed system, however Rube Goldbergish, but the result of centuries of evolution... and since evolution produced both human brains and the human appendix (and human toenails), one must be skeptical of evaluating human evolution along any dimension even remotely resembling "fitness for purpose." There's no reason to believe that human design does much better; just consider the human-engineering problems created by driving on the right-hand side of the road from the left-hand seat for a population that is vast-majority right-handed.
- The ugly, unspoken corollary of the preceding two items is one of class and economic privilege acting as a gatekeeper. Starving artists don't create new art for everyone; they push up daisies. It helps to remember that searing portraits of incarceration and prejudice like those of Dr King, Eldridge Cleaver, and even Jawaharlal Nehru were written by people who came from relative economic privilege (some more relative and some more privileged than others, of course). That's just one example; even less-obviously-partisan pieces like District 9 were not created from the inside, but merely next door. The less said about partisan-imposed barriers to social, educational, and economic mobility, the better.
Conversely, an outsider's sympathetic perspective can also be valuable in turning terror and need and poverty into art. If nothing else, art is always about communication, and that requires (at minimum) some understanding and acceptance of the unstated assumptions of both the communicator and the audience... as the failures to communicate noted above reveal all too well, and as some of the more-doctrinaire and more-bigoted advocates who claim that no one without "authentic" experience of x is ever "allowed" to write about x. "Authenticity" is a data point and mirror and lens, not a gatekeeper or determinant of truth — except perhaps, and only perhaps, when it is either entirely ignored or allowed to become so.