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Considered as political satire, reality is getting a bit over the top

[ 187 ] April 28, 2017 |

He misses driving, feels as if he is in a cocoon, and is surprised how hard his new job is. President Donald Trump on Thursday reflected on his first 100 days in office with a wistful look at his life before the White House.

“I loved my previous life. I had so many things going,” Trump told Reuters in an interview. “This is more work than in my previous life. I thought it would be easier.”

A wealthy businessman from New York, Trump assumed public office for the first time when he entered the White House on Jan. 20 after he defeated former Secretary of State Hillary Clinton in an upset.

More than five months after his victory and two days shy of the 100-day mark of his presidency, the election is still on Trump’s mind. Midway through a discussion about Chinese President Xi Jinping, the president paused to hand out copies of what he said were the latest figures from the 2016 electoral map.

“Here, you can take that, that’s the final map of the numbers,” the Republican president said from his desk in the Oval Office, handing out maps of the United States with areas he won marked in red. “It’s pretty good, right? The red is obviously us.”

I’m genuinely surprised by what an idiot this guy is.  That’s not snark: I realize one doesn’t need to be anything like an intellectual to be a good president, and many haven’t been, but it’s still surprising that someone this lazy, incurious, ignorant, and basically stupid could end up getting the job.  That’s democracy for you, as G. Montgomery Burns might say.




Fairy tales don’t become facts just because you never stop repeating them

[ 165 ] April 26, 2017 |

Or do they?  

In the midst of a screed about how Donald Trump is a real old school Republican in the true sense of the word, meaning he wants to repeal as much of the New Deal as possible, unlike contemporary GOP leaders such as [citation missing], we get this:

Yet President Trump cannot simply ignore the modern conservative movement. For one thing, its two great successes, victory in the Cold War and reigniting economic growth (through Ronald Reagan’s tax cuts, spending policies and regulatory reforms), have made plausible his own visions of post-Cold War foreign policy and a resurgent economy.

Total per capita GDP growth, 1946-1980: 104.2%

Total per capita GDP growth, 1981-2015: 77.4%

Oh but you see that doesn’t count because of the aftereffects of World War II.  Also, the fact that the economy grew just as fast under Clinton as it did under Reagan, despite a hike in marginal income tax rates on high earners that every right wing pundit on the face of the globe assured us at the time was going to destroy the economy and lead to cats and dogs living together doesn’t count either, because of the bubble.

So the facts never fit the narrative, but there’s always a good reason for that. Several in fact.


Fresh mangoes, Whittier Law School edition

[ 57 ] April 25, 2017 |

The impending closure of a low-ranked California law school featuring cratering bar passage numbers, soaring graduate debt, and terrible employment outcomes seems to have driven friend of the blog Steve Diamond (a law professor at another low-ranked California law school featuring pretty much exactly the same things in a slightly less spectacular form) right over the edge.

Ever since Whittier’s central administration decided to pull the plug on their increasingly embarrassing law school, Diamond has been letting loose frankly unhinged-sounding tirades against anyone who dares to suggest that this just possibly might have been a justifiable decision, as opposed to a neoliberal Cato-funded crypto-racist conspiracy to . . . OK read it for yourselves, if you’re in the mood to get out of the boat:

Here, Dean of Northwestern Law School Dan Rodriguez makes the radical suggestion that people either criticizing or defending Whittier’s decision to close its law school might not yet have all the relevant information.  It turns out he’s a closet racist who hates Hispanic people like Dan Rodriguez, and is also engaged in a conspiracy to improve California’s bar passage rates, or something  (I confess I’m not paying super close attention, so maybe one or more of the stalwart LGM crew can explain the theory at work here. Be sure not to miss the comments!).

A couple or three data points, since we all love the data:

The average educational debt of 2016 Whittier law grads who had such debt (about 90%) was probably around $250,000.  (This figure is derived as follows: the average Whittier grad who took out law school loans took out $179,056 in such loans.  After accrued interest and fees this would equal about $210,000 when the first bill came due in November.  Average undergraduate debt these days at graduation is around $35,000, and interest also accrues on that when people are in law school.)

A grand total of 29 of Whittier’s 141 2015 graduates were known to be making $52,500 or more ten months after graduation.  38 of 141 had jobs as lawyers.

Given that only 22% of Whittier’s first-time takers of the California bar passed it in July, those numbers seem unlikely to improve for the latest graduating class.

Diamond’s statistics on lawyer salaries in Orange County are about as relevant to the question of whether it’s a good idea to go to Whittier as statistics regarding the salaries of tenured professors at UC-Irvine are to the question of whether it’s a good idea to enroll in a fifth-rate graduate program.


The tales of Goffman con’t

[ 126 ] April 24, 2017 |

Alice Goffman is in the news again:

A group of “students, alumni, and allies” of the sociology department at Pomona College have written an open letter to the department and senior executives of the college to protest the hiring of the ethnographer Alice Goffman as a visiting professor of sociology.

The college confirmed in a statement emailed to The Chronicle on Sunday night that it had offered Ms. Goffman a position as a visiting scholar, starting this fall, and that she had accepted.

The letter’s authors, who remain anonymous, demand that the college rescind the hire and give students more voice in future hiring decisions. The authors protest Ms. Goffman’s hiring because they say it fails to “address underrepresentation of faculty of color” and demonstrates an “institutional inadequacy to recognize and advocate for the best interests of students of color.”

They base their objections in part on the recent controversy over Ms. Goffman’s research methods in her 2014 book, On the Run: Fugitive Life in an American City. Those methods, they say, have contributed to false perceptions about black people and have harmed black communities.

I’m not going to address the letter’s various claims, some of which seem highly problematic. Instead I’d like to focus briefly on the fact that Goffman got this job — it’s an endowed two to three year visiting position at a top liberal arts college — over two other finalists who have academic publication records that consist of something other than one in no small part fabricated book.

That the two other finalists were African American women just puts an exclamation point on the dispiriting fact that the sociology department at Pomona decided to stick its collective head in the sand in regard to Goffman’s history of publishing lies and/or confabulations in the guise of legitimate ethnography.

Because there are some things rats won’t do

[ 60 ] April 20, 2017 |


Dictatorships foster oppression, dictatorships foster servitude, dictatorships foster cruelty; more abominable is the fact that they foster idiocy.

JORGE LUIS BORGES, Statement to the Argentine Society of Letters

It’s true we give Paul Ryan a hard time on this blog, but on some deeply perverse level I for one can’t help but admire the astonishing level of craven abnegation the man is capable of achieving, at least when he allows himself to contemplate what’s truly best for the nation  Paul Ryan.

(The encomium below provides the text to Donald Trump’s profile in Time’s latest selection of the 100 Most Important Beings in the Universe).



Paul Ryan

He always finds a way to get it done. When so many, including me at times, didn’t see how he could pull it off, Donald Trump won a historic victory. And in becoming the 45th President of the United States, he completely rewrote the rules of politics and reset the course of this country. A businessman always willing to challenge convention, he has shaken up Washington and laid out an agenda of generational proportions. Never afraid of a battle, he has made it his mission to fight for those who feel forgotten. Where others would pivot, he stays true to who he is. Where others would turn back, he forges ahead. Up close, I have found a driven, hands-on leader, with the potential to become a truly transformational American figure. I have little doubt that he will, once again, find a way to defy the odds and get it done.

Ryan is the Speaker of the U.S. House of Representatives

Whittier’s law school is shutting down

[ 65 ] April 20, 2017 |

Whittier College, a small liberal arts school in Orange County   somewhere in the Los Angeles-area megapolis (edit: apparently only the law school is in Orange County; the original college is in LA County; thanks to commenter rea for the correction] most famous for once upon a time enhancing Richard Nixon’s pre-existing human capital, announced yesterday that it wasn’t going to enroll a new law school class this fall.  This in effect means the school is closing once its current students graduate.

Whittier is the first unambiguous ABA law school closure since the law school crisis started to really get rolling about five years ago. (Indiana Tech announced a few months ago that it was closing its fledgling operation, but the school came into existence in 2013, so that doesn’t exactly count.  Also, Hamline University unloaded its law school onto the free-standing William Mitchell Law School in a “merger” that was a de facto closure — Mitchell/Hamline as its now known is no larger than Mitchell used to be by itself).

What’s interesting about this development is that, financially speaking, Whittier doesn’t seem to be in significantly worse shape than the average ABA law school.  I just finished a study that estimates the average non-elite (non-top 10ish) law school saw an approximately 35% decline in total tuition revenue between 2011 and 2015.  The number for Whittier? 38.9%.   Whittier cut its effective tuition per student by 6.85% during this time frame, which is half the rate at which the average non-elite law school slashed actual per student tuition.  (Almost all law schools outside of the elites depend on tuition for the vast majority of their self-generated operating revenues).

So why is Whittier closing? The answer seems straightforward: its parent institution decided it wasn’t going to subsidize it any longer.  Whittier College is a small school: law students make up more than 20% of the total campus enrollment of around 2,200.  It has a modest but actually sort of decent endowment for a small liberal arts college — $90 million, i.e., the same as Sarah Lawrence.  But obviously it isn’t some sprawling operation that can afford to subsidize a money-losing law school more or less indefinitely.

Leaving aside the financial nitty gritty, Whittier really shouldn’t have continued operating anyway.  Its graduates who were first time takers of the California bar last July racked up a 22% passage rate.  A total of 30 of 141 2015 graduates of the school had full-time long-term employment requiring bar passage (aka an actual legal job, broadly defined) ten months after graduation, and five of those people were employed by the school itself.  The 89% of 2016 graduates with law school debt took out an average of $179,056 in federal loans while in law school, which means that with accrued interest and origination fees they had well over $200,000 in law school debt alone at graduation.

The school reduced its full time faculty from 41 to 31 over the past five years, but per its tax filings it had several law faculty making more than $200,000 per year, which is frankly absurd for a school in its financial situation.  Indeed the only people among the dozen highest paid employees on campus who weren’t central administrators were six law professors  (To be fair, this particular sort of absurdity remains rampant among low-ranked law schools with terrible employment and bar passage numbers).

Anyway, as imitation is the sincerest form of academic administration, it will be interesting to see how many other central administrations now feel emboldened to make similar decisions.

Death without parole

[ 180 ] April 19, 2017 |

The suicide of former NFL star and convicted murderer Aaron Hernandez is an occasion for thinking about the policy of sentencing people to sentences of life without parole.  One of the less noted perversities of capital punishment is that it deflects attention from this subject.  Indeed, an innocent person on death row almost certainly has a far better chance of eventual exoneration than someone serving life sentence, because of the far greater per capita resources expended on death penalty cases.

There are currently about 2,900 people on death row, and more than a third of them are in jurisdictions that now almost never execute anyone, most notably California.  Meanwhile as of five years ago around 159,000 people in the US were serving life sentences, and nearly a third of those sentences did not include the possibility of parole.  Several thousand of the latter sentences were imposed on juveniles, in some cases for crimes committed when the offender was as young as 13.  (The US is the only country in the world that sentences juveniles to life without parole).

Life without parole is a barbaric sentence, that no civilized legal system should tolerate.  While there are certainly people who should never be released from prison before they die, that judgment should be made on a truly individualized basis, not by sentencing whole classes of offenders to the certainty of lifetime imprisonment.  The fact that life without parole exists in large part as a wedge against death penalty advocates is just another example of the social damage that the continued existence of capital punishment does — as is the fact that so few resources, comparatively speaking, are dedicated to the legal claims of the tens of thousands of people in America serving legally irrevocable life sentences.

Kleptocracy Unbound

[ 39 ] April 18, 2017 |

Trumpland Inc. is not what you would call a subtle operation:

SHANGHAI — On April 6, Ivanka Trump’s company won provisional approval from the Chinese government for three new trademarks, giving it monopoly rights to sell Ivanka brand jewelry, bags and spa services in the world’s second-largest economy. That night, the first daughter and her husband, Jared Kushner, sat next to the president of China and his wife for a steak and Dover sole dinner at Mar-a-Lago.

The scenario underscores how difficult it is for Trump, who has tried to distance herself from the brand that bears her name, to separate business from politics in her new position at the White House.

Yeah that does sound pretty difficult.  I bet she’s just agonizing about the whole situation.

The mess at Berkeley

[ 185 ] April 17, 2017 |

Note: At Scott’s suggestion, I’ve changed the title of this post, which was misleading, in that it didn’t make sense in the context of the argument in the post, which remains unchanged.  Choudhry clearly engaged in sexual harassment as defined by his employer, and the decision to remove him as dean was amply justified.  Firing him from the faculty is much more problematic, especially given the procedural irregularity of holding a second proceeding and giving him a much harsher  enhanced punishment, not because of any new facts, but because of public outrage over the initial punishment.

The University of California at Berkeley has effectively fired law professor Sujit Choudhry, bringing to an end a two-year imbroglio over his conduct toward an administrative assistant while he was dean of the law school.

This case is troubling on a number of levels, and I have very mixed feelings about it.  I’ll give a brief summary of the facts, but anyone interested in the matter should at a minimum read the report issued by Berkeley’s Office for the Prevention of Harassment and Discrimination in July of 2015.  (Note that this report is an investigatory document, not an official judicial or administrative finding of fact, although it reaches factual conclusions of its won).

In brief, Choudhry’s executive assistant Tyann Sorrell accused him of:

(1) Behaving in a demeaning way toward her in a fashion that was unrelated to sex or gender discrimination; and

(2) Sexually harassing her.

Point (1) is getting largely ignored in the coverage of the case, probably because the investigation concluded that the alleged demeaning behavior, assuming it occurred as described, didn’t violate the university’s sexual harassment policies.  But I suspect it’s actually quite salient to the case.

Choudhry became dean in July of 2014.  Sorrell complained that Choudhry forced her to perform various menial tasks that she didn’t think were part of her job, including picking up his dry cleaning, finding a wash and fold laundromat for him,  getting him meals, snacks, and drinks — she says he yelled at her when his tea got cold — and faxing mortgage documents.  (Choudhry’s defense to making the latter requests of his subordinate was that the mortgage documents in question related to Berkeley’s subsidized mortgage program for tenure-track faculty such as himself, and that therefore applying for the mortgage was part of his job.  Choudhry was paid $472,917 by Berkeley in 2014-2015.  Sorrell, who I bet wasn’t eligible for any special employer-subsidized mortgages, was making $66,850.)

Sorrell also claimed Choudhry got upset on the job a lot, and would sometimes refer to some of his distinguished colleagues as “assholes,” “son of a bitch” and “mother fuckers.”  (I believe in the King’s English this is actually spelt “motherfuckers,” but whatever).

The OPHD decided that none of this had anything to do with sexual harassment — an arguably dubious conclusion, given that Choudhry’s alleged behavior in this vein has a distinctly Don Draperish quality to it, and it’s safe to say that Don’s treatment of the “girls” in his office had a gendered/sexualized component.

Instead, the OPHD busted Choudhry for what the office concluded in its investigation was inappropriate touching of Sorrell.  Again, you should read the report and draw your own conclusions, but here’s the gist of her accusations:

The second part of the Complainant’s complaint is that the Respondent has touched
hugged and kissed her since September of 2014, and that this behavior constitutes sexual
harassment. The Complainant stated that this behavior started out as “bear hugs” where he
opened his arms wide and gave her a hug every few days. However, the hugging and kissing on
her cheek quickly escalated into a daily event, occurring five to six times a day. For example,
initially the Respondent blocked the entrance of her cubicle with his arms spread to give her a
“bear hug,” but over time the hugs became “tighter and he [continued to] kissed me on the
cheek.” Eventually, the Complainant began to feel “smothered” and “encroached upon” when
the hugging and kissing started to occur daily. The hugs from the Respondent became “more
lingering.” Then a kiss on the cheek would be added to the lingering hugs.

The Respondent would also come up behind the Complainant while she was at her desk
typing and rubbed her shoulders from behind, rubbed the side of her arms from her shoulders to
her elbows and kissed her on the cheek from behind. The Respondent has also squeezed the
Complainant’s arm when he passes by her desk.

The Complainant reported that the Respondent’s pattern of hugging and kissing the
Complainant on the cheek, escalated in February of March 2015 to multiple times, daily. The
Complainant reported that the Respondent would hug and kiss her when he was “happy.” For
example, he’d hug and kiss her good morning, after he had a good meeting, and to say good-bye.
He kissed her mostly on the cheek, but also kissed her on the top of the head if she was sitting
down at her desk.

In January of 2015, the Respondent took the Complainant’s hands and put them on his
waist, rubbed her hands and wrists that were on his waist, and kissed her on the cheek. After this
incident the Complainant went to the bathroom and cried. The Complainant believed that others
observed the Respondent’s behavior, and she felt that her professional reputation in the office
was compromised.

Choudhry’s response was that he didn’t intend anything sexual by this kind of thing, that the behavior wasn’t nearly as common as Sorrell claimed (he said it was “once or twice a week” as opposed to several times daily), and that he disputed a couple of specific details, such as kissing Sorrell from behind when she was at her desk. (See the report for the full details).

Anyway, the investigative report, using a preponderance of the evidence standard, believed Sorrell’s version over Choudhry’s, although it’s worth noting that there doesn’t seem to be a radical disjunction between their two versions of the relevant events.  (It’s also worth noting that the investigator’s basis for believing Sorrell in regard to the question of frequency — that she had no motive to exaggerate — is dubious.  Sorrell’s motive for exaggeration, conscious or unconscious, is identical to Choudhry’s motive for understatement).

After an administrative proceeding, Berkeley’s provost docked Choudhry’s pay by 10% for the year — this was in effect a $47,000 fine — made him apologize to Sorrell, and required him to undergo counseling while having his behavior “monitored.”  Shortly after this punishment was announced in March of last year, Sorrell filed a lawsuit, which led to much immediate public outcry.  Berkeley’s top administrators, reeling from a series of sexual harassment incidents, including one involving the law school’s former dean, reacted by forcing Choudhry to resign from the deanship.

This didn’t mollify critics inside and outside the institution though, and eventually the university decided to reopen the matter.  (Rick Hills, who is as he acknowledges a friend of Choudhry’s and not a disinterested observer, wrote a long and interesting post on the subject of this quasi-double jeopardy here).

The upshot was that Choudhry has now effectively been fired from his tenured position on the UC faculty.  (After the end of this semester he will remain on unpaid sabbatical until next spring, at which time he will voluntarily resign, with “voluntarily” here being what lawyers call “a term of art.”).

As a began this post by saying, this is a troubling situation on many levels. First, it boggles my not that easily boggled mind that a 45-year-old male academic in 2015 thought that it was OK to behave as Choudhry admits he behaved toward a female subordinate.  Choudhry was born in India, but he’s been in North America since he was a child, so I doubt this has anything to do with cultural misunderstanding in that sense.  And whileI know nothing of the no doubt various Indian sub-cultural mores in these matters, I would be surprised if any of them featured such a casual attitude toward physical contact between the genders in professional work places.  (There’s also been some talk of Choudhry perhaps inadvertently employing “European” customs in the uptight American workplace. This strikes me as absurd, given that he’s not European, and in any case highly ritualized European greeting customs between male and female acquaintances bear no resemblance to his admitted behavior).

Second, while I personally find Choudhry’s claim that he had no (conscious) sexual intentions toward Sorrell plausible, the extremely inappropriate character of his behavior — and its legal status as sexual harassment — doesn’t depend on such intentions.  Choudhry’s admitted behaviors are the sorts of things that are only appropriate between people who are genuinely intimate, whether physically or emotionally, and/or as gestures of affectionate relations between profoundly unequal people.  This kind of profound inequality is essentially that found between adults and young children.  It should go without saying that treating one’s co-workers as either involuntary intimates or as patronized pseudo-children  is completely unacceptable.

Choudhry’s behavior, whether in the weaker version he describes, or the stronger one described by Sorrell, was seriously inappropriate, and deserved to be sanctioned. There was, it’s fair to say, something distinctly creepy about it, whatever his intentions.  And I have no problem with the conclusion that it was bad enough, and revealed a sufficient lack of judgment, that it was ultimately appropriate to remove him from the deanship, given the discretionary nature of that job, and the sensitive situation the university now finds itself in, after decades of coddling vastly worse instances of sexual harassment.

All that said, Berkeley’s subsequent handling of this matter has been appalling.  Keep in mind that this is an institution that continues to employ on the very same faculty as Choudhry a straight-up war criminal: a man who played an absolutely central role in torturing large numbers of human beings, by supplying specious legal rationales for the commission of that particular war crime by the United States of America.  (By the way Berkeley paid John Yoo $406,385 in 2015, which is a shocking enough number all by itself, but which in addition is $116,000 more than the institution was paying him just five years earlier, when he was freshly returned from his international law crime spree).

So Berkeley has the stomach to not merely retain, but to shower massively increased compensation on, the deplorable Professor Yoo, but it’s using an administrative mulligan to toss Sujit Choudhry out of a metaphorically high window, pour encourager les autres I suppose.

None of this is to any way deny or minimize what is apparently a long-standing pervasive problem with sexual harassment at the institution.   (See, for example, the allegations in the lawsuit just filed against philosophy professor John Searle).  But destroying Choudhry’s career as a convenient gesture of expiation merely exacerbates rather than ameliorates that sordid history.

He likes to watch

[ 65 ] April 13, 2017 |

Tremble in shock and awe as our neo-isolationist white America first policy unfolds:

McMaster wants 10,000-50,000 U.S. boots on ground in – a “surge” of sorts. Others aren’t so sure. = Debate

Donald Trump is a confused sub-literate old man, who gets all his information about the world from watching TV.  His “policies” consist of whatever he feels like doing today, based on what somebody just said on (at best) Fox & Friends, but more likely whatever is being channeled from the Breitbart and Infowars sewers.

Chauncey Gardiner is president, but he’s jacked up on Viagra and Megalomanian(tm), and he has thousands of nuclear weapons at his increasingly fickle command.



[ 110 ] April 7, 2017 |

Very Serious Person Fareed Zakaria:

When Alisyn Camerota asked him, “What changed last night?” Zakaria responded that Trump “became President of the United States.”

“I think this was actually a big moment because Candidate Trump had said that he would never get involved in the Syrian civil war,” Zakaria said. “He told President [BarackObama, ‘You cannot do this without the authorization of Congress.’ He seemed unconcerned with global norms. President Trump recognized that the President of the United States does have to act to enforce international norms, does have to have this broader moral and political purpose.”

That is high praise from Zakaria, who previously said that Trump has succeeded “by bullshitting.”

The comment was also noteworthy since Zakaria’s CNN colleague Van Jones used very similar language to describe Trump in February, saying he “became president” when he used a widely-publicized speech to honor the wife of a fallen Navy SEAL.

I have no opinion on whether bombing Syria was the right thing to do, but I do know that if it was, the fact that Trump did so was literally an almost completely random outcome: Ivanka or Jared or someone else showed him a picture of some gassed children, and he did a 180 on US involvement in the Syrian civil war.

As for Zakaria, it’s disgusting how elite media types become (metaphorically I pray) passionately aroused by the sight of a president killing people.  Again: I don’t know whether the latest Syrian intervention is good, wise, moral, prudent etc.  I do know that the kind of barely latent power-worship that gets triggered by unilateral military action by the Commander in Chief is none of those things.

An original contribution to the literature

[ 157 ] April 5, 2017 |

Politico reports that Neil Gorsuch’s academic writings “borrow” from other authors. This is the publication’s squeamish way of phrasing the fact that Gorsuch put his name* to texts that lifted the work of other writers without proper attribution, which in la cosa nostra is known as plagiarism.

Here is apparently the most striking example.  Gorsuch:

“Baby Doe” (an appellation used to protect the family’s privacy) was born in Bloomington, Indiana, on April 9, 1982, with two congenital anomalies, Down’s syndrome and esophageal atresia with tracheoesophageal fistula. Down’s syndrome is a chromosomal disorder that involves both a certain amount of physical deformity and some degree of mental retardation. 49 Esophageal atresia with tracheoesophageal fistula means that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus. As a result, food and drink pass to the lungs instead of the stomach, eventually resulting in suffocation unless surgery is performed to correct the malformation.50 Surgery to correct esophageal atresia with tracheoesophageal fistula is routinely performed with success, but the parents of Baby Doe refused to consent to the surgery.

Shortly after Baby Doe was born, a hearing was held at Bloomington Hospital to determine whether the parents had the right to refuse the surgery on behalf of their child. An attorney was present at the hearing to represent the parents, though no one was present to represent Baby Doe’s potentially adverse interests. Six physicians attended, three of whom had obstetric privileges and three of whom had pediatric privileges at Bloomington Hospital. The obstetricians “recommended that the child remain at Bloomington Hospital with full knowledge that surgery to correct tracheoesophageal fistula was not possible at Bloomington Hospital and that within a short period of time the child would succumb due to inability to receive nutriment and/or pneumonia.” 51 The pediatricians, meanwhile, stated that the appropriate treatment was to undertake corrective surgery immediately, and one of the pediatricians testified that the child might enjoy a reasonable quality of life. 52 The dispute wound up in a state court where the trial judge concluded that the parents had the right to refuse corrective surgery even though their child would die. The Indiana Supreme Court refused to hear an appeal, and the child died on the sixth day after he was born while a guardian ad litem was on his way to Washington, D.C., to appeal the case to the United States Supreme Court.

Here is a passage from a law review article by Abigail Lawlis Kuzma:


The Infant Doe case involved a child who was born with Down’s syndrome and reparable13 esophageal atresia with tracheoesophageal fistula. Down’s syndrome or “Mongolism” is an incurable chromosomal disorder that involves a certain amount of physical deformity and an unpredictable degree of mental retardation.14 Esophageal atresia with tracheoesophageal fistula indicates that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus such that substances taken orally pass to the lungs instead of the stomach, eventually resulting in suffocation unless surgery is performed to correct the malformation.15 Corrective surgery to correct esophageal atresia with tracheoesophageal fistula is routinely performed with success,16 but the Bloomington Hospital is not equipped to handle the operation.17 However, the parents of Infant Doe refused to transfer their baby to Riley Hospital, a referral hospital in Indianapolis, Indiana, for corrective surgery.18 Approximately twenty-six hours after Infant Doe was born, a hearing was held at Bloomington Hospital to determine whether the parents had a right to choose a course of treatment for their child that consisted of allowing the child to die.19 An attorney was present at the hearing to represent the child’s parents.20 ” No attorney was present to represent Infant Doe’s interests.21 Six physicians attended the hearing, three of whom had obstetric privileges and three of whom had pediatric privileges at Bloomington Hospital.22 The obstetricians “recommended that the child remain at Bloomington Hospital with full knowledge that surgery to correct tracheoesophageal fistula was not possible at Bloomington Hospital and that within a short period of time the child would succumb due to inability to receive nutriment and/or pneumonia.”23 The obstetrician who attended Mrs. Doe at the birth of her child “testified that, even if surgery were successful, the possibility of minimally adequate quality of life was non-existent due to the child’s severe and irreversible mental retardation.”24 The three physicians with pediatric privileges who attended the hearing stated that the appropriate treatment was to transfer the infant to Riley Hospital immediately for corrective surgery, and one of the pediatricians testified that Down’s Syndrome children may have a reasonable quality of life.25

In its declaratory judgment, the court concluded that the parents of Infant Doe had the right to choose the course of treatment recommended by the obstetricians in the case, that of refusing corrective surgery and allowing the child to die.26The case was unsuccessfully brought before the Indiana Supreme Court on an Emergency Appeal,27 and the child died on the sixth day after he was born while the guardian ad litem was on his way to Washington, D.C., to appeal the case to the United States Supreme Court.28

Obviously the first passage was copied directly from the latter text, with minor re-wordings, and with no attribution to the copied text.  That’s plagiarism. There wouldn’t be the slightest ambiguity about that definition of the concept if this were a draft of a law student’s seminar paper, but since this is, shall we say, a somewhat different interpretive context, much metaphorical ink was spilled in the wee wee hours of the morning to point out that this and similar examples aren’t really plagiarism at all, because of reasons.  I give you Princeton Law School’s Robert George:

Robert George, a law professor at Princeton University who was the general editor for Gorsuch’s book, told Politico that Gorsuch “did not attempt to steal other people’s intellectual property or pass off ideas or arguments taken from other writers as his own.”

“In no case did he seek credit for insights or analysis that had been purloined. In short, not only is there no fire, there isn’t even any smoke,” George added.

I wonder (I don’t actually wonder; this is a rhetorical device) if Robbie George applies this standard to his own students, or for that matter to himself? Is it OK to copy long passages from another author’s work without attribution, as long as the passage in question is purely descriptive?  I would hate to think that the disciplining bodies at Princeton Law School take that view of the matter, and I’m pretty sure they don’t.

And here is Oxford’s John Finnis, the leading light of contemporary natural law philosophy, (and Gorsuch’s dissertation adviser) plunging once more into the breach:

“None of the allegations has any substance or justification.” He adds, “Neil Gorsuch’s writing and citing was easily and well within the proper and accepted standards of scholarly research and writing in the field of study in which he and I work.”

OK then.

In my younger and more vulnerable years my father gave me a piece of advice that I’ve been turning over in my mind ever since.

“Whenever you feel like criticizing any one,” he said to me, “just remember that all the people in this world haven’t had the advantages that you’ve had.”

He didn’t say any more, but we’ve always been fairly communicative in a somewhat reserved way, and I understood that he meant a lot more than that.  So I’m not going to claim that Neil Gorsuch’s plagiaristic tendencies are some sort of horrible character flaw, or render him unfit for the Supreme Court.  ” Judge not, lest you be judged,” is the most novel way I can think of to phrase the matter.

But it’s funny in a pathetic sort of way to see people like George and Finnis falling all over themselves to claim that plagiarism isn’t plagiarism.

*Of course it’s quite possible that Gorsuch had nothing to do with the copying of this passage at all, since much high falutin’ academic writing is actually produced by  semi-anonymous and mostly uncredited research assistants. (This is of course a standard dodge when academics get caught doing this kind of thing).  See, too, infra op. cit. the habit of referring to the opinions of judges as if they had actually been written by the judges themselves, as opposed to their clerks.  This kind of meta-plagiarism is its own kettle of fish, to coin a phrase.


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