Posted by Randy Barnett:
Funding of Chicago-Kent Symposium on the Second Amendment:
As a former member of the Chicago-Kent faculty, I thought I would add
some background on the issues raised by [1]David Hardy (and commented
on [2]here by Eugene) concerning the funding of the symposium on the
Second Amendment that appeared in the Chicago-Kent Law Review.
I was one of the faculty members instrumental in converting the
Chicago-Kent Law Review from a normal law review--n a short essay I
dubbed it a "[3]moot law review"--into an "all-symposium" law review
with faculty editors. In addition to eschewing submitted articles in
favor of soliciting writings to be written for symposia, each issue
would have a faculty editor whose principal responsibilities were
proposing a topic, inviting the authors, writing a foreword, and
sheparding the writing of the papers. Another innovation was that both
the faculty editors and the contributing authors were paid an
honorarium. In the beginning all faculty editors were to be outside
the Chicago-Kent faculty, but eventually this policy was relaxed and
some editors were in house. I myself organized two symposium issues.
The first was on the Ninth Amendment; the second (edited with Jules
Coleman) was on "Post-Chicago Law and Economics." As a result of these
reforms, the Chicago-Kent Law Review went from a journal that no one
ever read to one of the top-cited scholarly journals in the country.
Given this institutional arrangement, there is nothing untoward about
an outside faculty editor, like Professor Carl Bogus, being paid to
organize a symposium issue in which he and the authors are paid
honoraria.
Of course, all honoraria were originally paid by the law school, not
by a foundation, but again I see no problem with this practice, so
long as the law school does not cede to the foundation editorial
control of the issue that is published in the law school's name.
When I saw an announcement for the Second Amendment symposium funded
by the Joyce Foundation, what immediately struck me was the completely
one-sided composition of the contributors. So I contacted a former
colleague of mine at Chicago-Kent and offered to participate as a
commentator, provided I was given the same remuneration as other
presenters. I also offered to recruit some other scholars who would
represent some diversity of opinion. My erstwhile colleague said this
was not possible. The first reason he offered for this was the
supposed lack of civility between pro- and anti-individual rights
scholars. When I objected to this reason, it became clear that this
was not the real rationale. Later, Carl Bogus told me (as he has
subsequently written elsewhere) that the lack of balance was
intentional and meant to counter the overwhelming dominance of the
individual rights position. The idea, he said, was to work out the
alternative paradigm with scholars who were dissenters from the
individual rights position and provide fresh thinking:
We felt that, for a variety of reasons, the collective rights model
was under represented in the debate, and wanted to give scholars an
opportunity to enhance or further illuminate the collective rights
position. Sometimes a more balanced debate is best served by an
unbalanced symposium. I did not, therefore, invite anyone who I
knew subscribed to the individual rights model.
This saga raises a number of questions that scholars ought to ponder:
Is accepting honoraria for writing papers unethical? For obvious
reasons, I strongly reject this position. Legal scholars are entitled
as anyone else to be paid for their work, and to choose to participate
in a program, which they might otherwise decline to do were they not
paid.
Is accepting honoraria from a foundation, like the Joyce Foundation,
that will support only one side of an issue unethical? So long as one
does not change one's views to conform to the funding source's
preferences, I do not think so (though I do think one should disclose
one's funding sources to allow readers to evaluate for themselves
whatever impact it may have on one's analysis). I do not see why
foundations who wish to advance a particular view cannot ethically
support the research of those who otherwise agree with its agenda.
Ultimately, the soundness of one's scholarship should depend on the
reasons and evidence one puts forth, not the source of any financial
support one may have received. I think this is true even if the
honoraria induced a scholar to write about an issue he or she would
not otherwise have done, which I think probably applies to a number of
contributors to the Second Amendment symposium. I feel the same way
about campaign contributions. Contributing money to the campaign of
politicians with whom one agrees does not corrupt the politician,
unless he or she was already corrupt. Michael Bellesiles, who was paid
to contribute to the Chicago-Kent symposium did not fabricate his
evidence because the Joyce Foundation was paying him. He was a corrupt
scholar before and after this payment was made.
Was Chicago-Kent at Fault for Publishing This Symposium? Here I think
the answer is probably yes. Chicago-Kent, and the journal it
publishes, purports to be an academic institution committed to the
pursuit of truth. It is not an advocacy group, and it publishes an
academic law review that benefits from the perception that it is not
an advocacy journal. By mounting a deliberately one-sided symposia it
did a disservice to its readers, its academic community, and most
especially to its students were were free to attend what was a
deliberately one-sided conference.
I also think that accepting funds from a foundation that limits the
participants to those holding a particular view is in conflict with
its mission as an academic institution. If the Joyce Foundation
limited participation to one side of this academic dispute, or if
Chicago-Kent did not bother to know that this money could only be
spent to fund one side of the dispute, then it made a serious mistake.
There are indications that the Joyce Foundation refuses to have any
dissenting voices included in its programs. Indeed, it is reported to
have protested the appearance at Chicago-Kent of a pro-individual
rights speaker within a few weeks of its symposium. The Joyce
Foundation also supports the [4]Second Amendment Research Center at
Ohio State. When I asked its director, Saul Cornell, in an email
exchange if any participants in its academic programs could advocate
the individual rights position, he responded that he would obtain
separate funding to permit that to happen. I took that as an
indication that Joyce does put strings on its funding. (David Hardy
quotes and links to the mission statement of the Joyce Foundation
[5]here.)
While there is nothing unethical about an advocacy group like the
Joyce Foundation running one-sided programs--it is done all the time
by groups on all sides of every issue--I think this sort of advocacy
funding is inconsistent with the scholarly mission of an academic
institution like Chicago-Kent or Ohio State. Imagine the effect on the
institution's reputation if not only the funding, but the implicit or
explicit strings were disclosed. This is an indication that accepting
funding with substantive strings attached is improper for an academic
institution.
To be clear, I do not think that the source of funding, and the bias
of the resulting program makes it unethical for a scholar to accept an
honorarium from an institution that has compromised its academic
integrity in this way. Nor does one-sided funding necessarily
compromise the integrity of a scholar's work-product, which should be
judged on the merits of its arguments and evidence. Again, there is
nothing wrong with seeking research funding from sources who agree
with your approach, or a foundation seeking to support and encourage
scholara who are sympathetic to its approach.
But there is a big difference between the work product of an
individual scholar, and the collective work product represented by a
symposium sponsored by an academic institution like Chicago-Kent. This
issue not only is weaker intellectually than it might have been, but
it falsely suggests a uniformity of opinion on the subject it
examines. Since the symposium was open to Chicago-Kent students, I
wonder if they were informed that the program was deliberately
designed to be one-sided. Aren't students (or readers of the law
review) entitled to know that they are being provided a deliberately
biased stream of information? Here I think the fault and discredit
lies entirely with the academic institution.
What is Value of Diversity in an Academic Institution? I think the
Second Amendment symposium issue suffers not from its funding, but
from the one-sided intellectual process that produced it, regardless
of whether it resulted from foundation strings, or simply the strategy
of its organizers. Ultimately, with no knowledgeable dissenters at its
conference pointing out inconvenient evidence--of which there is a
great deal--the arguments it presents are necessarily less informed
and weaker than they would otherwise be. Certainly they are less
informed than an academic institution like Chicago-Kent would want it
to be. I believe this was the case with this issue of the Chicago-Kent
Law Review, though I have not read it in its entirety. In contrast,
when I organized a symposium on the Ninth Amendment, I was careful to
invite scholars who would be expected to (and did) take widely
divergent views on its meaning and relevance.
Indeed, the Federalist Society--which does not purport to be anything
other than a viewpoint-driven organization--consistently strives for
diversity on its programs. Its conferences routinely feature divergent
opinions on each panel. When inviting speakers to campus, students are
encouraged to arrange debates or solicit critical commentators from
their own faculties. Those participants in its programs who have
different views are treated cordially and respectfully, sometimes to
their great surprise. The programs that result from this diversity are
far more interesting, and of better quality, because of this planned
diversity. An academic institution like Chicago-Kent should strive to
do no less.
References
1. http://armsandthelaw.com/archives/2005/04/joyce_foundatio.php
2. http://volokh.com/archives/archive_2005_04_03-2005_04_09.shtml#1112820316
3. http://www.bu.edu/rbarnett/shortstory.htm
4. http://www.glenninstitute.org/glenn/news_details.asp?id=109
5. http://armsandthelaw.com/archives/2005/04/carl_bogus_resp.php
_______________________________________________
Volokh mailing list
[email protected]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
