In my post on real-world public reasoning, I discussed the reception of Brian Kalt’s law review articles on prosecuting murder and other crimes in the fifty-square-mile Idaho portion of Yellowstone National Park. Prof. Kalt responded with an email to me. Since this was before my email and telephone policy statement, I will not post his email, which was gracious and intellectually substantive. I responded with the email below. He in turn responded with further discussion of the issues. He noted, “Now that I understand what you were saying more, I am satisfied that all the response I could reasonably ask for is contained in the one comment already posted by Mr. Havens.” He also wrote, “I guess I prefer the ‘nothing’ approach, but not because I feel unfairly treated.”
I have decided to post my own email regarding this matter because I don’t believe that doing so is unfair to Prof. Kalt and because I believe in the importance of courteous public discussion of scholarly issues.
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Thanks for taking the time to respond. On your sixth point, I do not think that all your work, or all the work of law professors generally, is useless. In particular, your article “The Exclusion of Felons from Jury Service” strikes me as intellectual impressive, publicly important, and quite useful for anyone thinking about public position of ex-prisoners. I wish “The Exclusion of Felons from Jury Service” had attracted as much attention as “The Perfect Crime.”
Both “The Perfect Crime” and “Tabloid Constitutional” were fun to read. I’m in favor of having fun and even manage occasionally to have some fun in writing. See, e.g. http://purplemotes.net/2008/08/17/televisions-moving-into-the-toilet/ Having fun makes the world a better place. I wish more law professors would have fun doing legal work and would share their fun with the world. In this sense, you’re a great leader for your profession.
My post sought to analyze both attention to the legal issue you discovered and attention to your work concerning that issue. You put forward a lesson, with a tone of righteous earnestness, about the marketplace of ideas. I think the lesson you claimed to have learned misses key points of how the marketplace of ideas actually works.
But the point of this correspondence is fairness, not differing analysis or arguments about those issues. I’ll briefly try to convince you that what you feel is unfair really isn’t unfair. I hope to dissipate your feelings of unfairness. If you decide that I’ve failed, I would be happy to post on my blog the response you sent me, or a revised response if you want to create one, followed by my response. Alternatively, if you would prefer not to have any public evidence that you noticed my comments (this seems to be a favored approach among persons who consider a commenter to be someone not relevant to their professional standing or beneath them), I’m willing to add to the original post an addendum that might lessen your feelings of unfairness without documenting that you expressed such feelings.
Your points four and five raise issues of fairness. With regard to point four, you state that you were sincerely concerned that your law journal article could cause someone to be killed. You also state that you attempted to avoid that bad outcome by notifying the authorities several months before it was published. As you now recognize, your response to your concern was totally ineffectual. I credited you with discovering a formal basis for making a sensational claim rather than accused you of extremely poor practical judgment. I hope that you consider my choice to be fair.
You also state that you did not seek the attention that arose after you posted your paper on SSRN and that my extrapolation that you were competing for attention is unfair. Please recognize that I am a communications industry economist. Seeking attention and competing for attention are general, normal types of behavior in communication fields. Competition for attention is an important economic structure in the legal academy. To the extant that you want to acknowledge participating in it, competing for attention is not a personal failing for you as a law professor. I have some sense that academics prefer not to acknowledge among themselves certain obvious aspects of their profession. But I hope you consider it fair for a communications industry economist to recognize competition for attention.
With regard to point five, you state that it was “a bit unfair” for me to have written, “But surely for a law professor, the crowning moment must have been having a second article concerning the Yellowstone-Idaho crime problem accepted for publication in the Georgetown Law Journal.” That sentence followed quotation of your statement, “The crowning moment, though, was the article in the /National Enquirer/.” I interpreted your statement as having been written with some genial irony. I see no reason that you cannot, with a big smile, tell your fellow law profs that you had two articles on the Yellowstone-Idaho crime problem published in the Georgetown Law Journal. Just as with mention in the National Enquirer, your fellow profs might laugh and be secretly envious. I think it’s fair for you to do that. Isn’t it fair for me to have written it?
If the above hasn’t dissipated your feelings of unfairness, feel free to send me some statement that you would like to have posted on my blog. I will not edit your statement without your permission and your approval of any editing. Alternatively, I would be happy to add an addendum to the original post. The addendum would make these points: 1) “The Perfect Crime” and “Tabloid Constitutionalism” are fun to read, having fun is good, and that the author should be commended for adding to the world’s fun; 2) The article “The Exclusion of Felons from Jury Service” is intellectually impressive, useful work, and, together with the author’s other articles, demonstrates the value of a variety of ways of doing legal scholarship, 3) Texts are often designed to attract the attention of readers. While such a design may be difficult to discern in many law journal articles, law professors generally seek to attract attention to their work. Seeking attention and competing for attention is not a personal moral failing of any particular law professor, and nothing in the above post should be construed to imply such therewith.
Please let me know if any of the above possibilities satisfy you. Doing absolutely nothing is also another possibility. I’m familiar with that approach, and I also would be happy to adopt it in these circumstances.
[email sent on Aug. 27, 2008; I have added embedded hyperlinks to Andy Haven's comment and to Prof. Kalt's papers.]