Posted by Randy Barnett:
Saul Cornell Responds:
--Ohio State History Professor Saul Cornell, who founded and heads the
[1]Second Amendment Research Center at Ohio State sent me the
following response to my blog post on the Chicago-Kent symposium on
the Second Amendment being funded by the Joyce Foundation:
I think you misinterpreted my earlier e-mail about my center. The
Center includes all points of view on its web site. You will find
that you and Eugene are both listed in the database on gun
scholars.(I haven not listed Lott or Bellesiles for obvious
reasons.) You will also note from my post on your blog via Eugene
that the Fordham symposium included scholars from a number of
approaches and viewpoints and that several individual rights people
were invited. My comment to you in e-mail (don't you think you
ought to ask permission before you blog?) had to do with funding
new research. I think there is a difference between an obligation
to present a full range of views and actually allocating limited
research funds to encourage new research. Given that the gun lobby
has plenty of money and places like CATO are strongly gun rights it
seems a bit unfair to ask Joyce to fund your point of view. I would
be happy to help the NRA fund decent research on the Second
Amendment but they don't seem that interested in forking over any
money. I don't see any evidence that CATO has been nearly as fair
as I have and I don't see anyone on your blog who represents the
collective rights view or the new civic rights paradigm. Perhaps
you can explain why the fairness doctrine only applies to some
folks, but not others? Do you have a coherent theory about how you
approach this stuff? You may recall that Glenn's Standard Model
issue did not have anyone from the collective rights point of view.
Because I think Saul largely missed the point of my original post, let
me summarize:
(1) The main issue I addressed was denying that there was anything
untoward about the Chicago-Kent symposium (a) bringing in an outside
editor, or (b) paying an honoraria to the editor and contributors. It
is standard practice there to do both.
(2) The secondary issue I addressed was the propriety of scholars
accepting honoraria in general, and Joyce Foundation money in
particular, to write about subjects they might other wise not have. My
position was that, so long as they did not change their views to
conform to the wishes of the donors--and I do not believe that any of
these authors did so--then I said I saw nothing wrong with this--but
the funding should probably be disclosed (as it was).
(3) I did fault Chicago-Kent for holding a deliberately one-sided
event funded by a foundation that will only pay for one side to be
heard--and then publishing the resulting papers in an entirely
one-sided issue of its law review. I maintain that this runs counter
to its mission as an academic institution.
(4) To substantiate the fact that Joyce does attach strings to its
grants I related what was told to me by Saul Cornell in an email
exchange. In my blog post I summarized this as follows:
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.
I did not quote the original email as I did not have permission from
Saul to do so, but he has given permission now. As he thinks I have
misunderstood him, here is the pertinent part of what he wrote:
Conferences organized for the Center will follow my Constitutional
Commentary model, not Chicago-Kent. As you may recall I included
Bob Shalhope in that because he was the historian most closely
associated with the IR point of view. Obviously Joyce does not want
to put money into the hands of gun rights people (that does not
seem unreasonable) so the funds for participation of those folks
will have to come from somewhere else.
So here is my response to Saul:
(1) I never mentioned the Fordham Law Review symposium. I have no
background information to impart about its organization or funding. As
I am not familiar with its composition--apart from what Saul wrote in
his email to Eugene--I made no criticism of it earlier and make none
now.
(2) My principal purpose for referring to the substance of Saul's
email conversation with me was to substantiate that Joyce does indeed
restrict its funding to persons who agree with its position on gun
control, which is what I contend made it improper for Chicago-Kent to
run a conference with this funding. I could imagine a conference half
funded by Joyce and half by, say, the NRA, which would result in a
balanced and academically respectable program. (Query: would Joyce
have ever agreed to this? I seriously doubt it.)
(3) I also suggested, though in passing, that it is questionable for
Ohio State to set up a "Second Amendment Research Center," largely if
not exclusively, using funds that come from a foundation that will
only fund one side of a legitimate academic debate. Saul's reply
notwithstanding, I still believe this to be the case, but his
situation is more complicated than that of Chicago-Kent, so let me
address it further.
(4) Chicago-Kent took money from a foundation that will only fund one
side of a legitimate academic debate and then held a conference to
which its students were invited and published a law review issue that
was entirely one sided. To me, this is clearly inconsistent with its
mission as an academic institution. (I would have to know more than I
do about the 1995 Tennessee symposium organized by Glenn Reynolds to
know whether it was similar in this regard to what Chicago-Kent did. I
do know that I wrote the Foreword for that Symposium (available
[2]here) and received no honorarium. Nor did I attend any live
conference that may have been paid for by an outside source. The issue
discloses no outside funding. But even if Tennessee somehow acted
improperly, two wrongs do not make a right.)
In contrast, Ohio State set up an ongoing center largely, perhaps
exclusively, funded by money that can only be used to pay for one side
of an academic debate. If Joyce is the exclusive or main source of
funding, I think this compromises the academic integrity of Ohio
State. If the center also had a comparable amount of money that could
be used to fund other approaches, this would complicate the issue. On
the one hand, it would enable it to have somewhat balanced
programs--as Saul says he strives to do. On the other hand, it would
still make Ohio State financially dependent on satisfying the
view-point position of Joyce in a way that the one-time conference I
hypothesized above would not. If Joyce objects to the content of what
the Center does, for example, by including divergent voices, it could
withdraw its substantial funding. Because Ohio State would knows this,
this would compromise its academic mission.
Now it is possible that Joyce made a substantial one-time grant--as
opposed to providing ongoing funding--with no strings. This would be
quite different. But I take it from Saul's original email that Joyce's
funding is ongoing AND that Joyce will only fund scholarship with
which it agrees. It is this arrangement and constraint that
compromises the academic integrity of Ohio State.
(5) Saul asked in his reply: "Given that the gun lobby has plenty of
money and places like CATO are strongly gun rights it seems a bit
unfair to ask Joyce to fund your point of view." I do not expect Joyce
to fund any point of view with which they disagree. It is not Joyce we
are talking about, it is Chicago-Kent and Ohio State. Nor, to
reiterate, do I have any problem with an individual scholar like Saul
who agrees with Joyce accepting funding to support his or her academic
research, provided the funding is disclosed. But Ohio State, like
Chicago-Kent, is an academic institution, unlike Cato, or the
Federalist Society. (I raised the Federalist Society because, even
though it is not an academic institution, its programs have more
balance than did Chicago-Kent's. (I did not compare the Fordham Law
Review symposium to the Federalist Society--indeed, I did not mention
that symposium at all in my post.)
Let me clarify this by posing the following question: Why did Joyce
not organize its own conference, law review issue, or Second Amendment
Research Center? The answer is plain: it wants its views to enjoy the
academic respectability imparted upon it by the imprimatur of
Chicago-Kent and Ohio State. It is that institutional imprimatur that
enabled the Ninth Circuit to rely so heavily on articles published in
the Chicago-Kent Law Review in his opinion in [3]Silveira v. Lockyer.
(BTW, the published opinion had to be modified later to remove its
reliance on the discredited work of Michael Bellesiles.) This is what
Joyce is buying from Chicago-Kent and Ohio State. This is what it is
improper of these institutions to sell.
Unlike the Joyce Foundation, Cato has its own [4]Center for
Constitutional (not Second Amendment) Studies, its own law review (The
[5]Cato Supreme Court Review) and organizes many conferences and
publishes many books. Cato's work product will inevitably be
discounted in a way that a center at Ohio State would not be (unless
it became widely known that Ohio State was indistinguishable from the
Joyce Foundation which would defeat the purposes of both Joyce and
OSU). This is the distinction that is of utmost importance.
Consider this analogy: Suppose Boston University established a "Second
Amendment Research Center" funded wholly or principally by the NRA,
which would only pay for individual rights scholarship. How would or
should observers react to the work product of this center? Should it
receive any greater imprimatur of academic respectability than a
center within the NRA itself? Of course, we know why the NRA would
want to establish such a center (who could blame it?), but why should
BU want to establish so one-sided a center except deliberately to take
sides in an academic dispute-- that also has or will be before the
courts?
If Saul truly cannot distinguish between a "research center" at a
university (and a public one, no less) and a think tank like Cato, an
advocacy group like the NRA or Joyce Foundation, or a blog like the
Volokh Conspiracy, then there is more trouble with the Second
Amendment Research Center than the principal source of its funding.
But the fact that he says he would include diverse opinions in his
programs (paid for somehow by other funds) and tried--albeit
unsuccessfully--to include divergent views in the Fordham Law Review
symposium suggests that he can tell the difference.
I conclude by offering the same thought experiment I did before: Would
Ohio State want it to be known that all or most of the funding for its
Center came from a foundation that would only fund a particular
viewpoint? I think not. Or would OSU (or Joyce) want the center to be
called "The Collective Rights Research Center"? It is to Saul's credit
that he tries to include other voices by tapping other sources of
funding. But that does not absolve Ohio State of the problem that it
has sold its name to one side of an academic and legal debate, if that
is indeed what it did.
References
1. http://www.glenninstitute.org/glenn/news_details.asp?id=109
2. http://www.bu.edu/rbarnett/Guns.htm
3.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/661116A4ECB1A7BE88256C8600544DCB/$file/0115098.pdf?openelement
4. http://www.cato.org/ccs/
5. http://www.cato.org/pubs/scr/
_______________________________________________
Volokh mailing list
[email protected]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
