Thursday, October 12, 2017


Mark Tushnet

I just finished reading a draft of a superficially interesting but deeply terrible article taking issue with the current wisdom, associated with Daryl Levinson and Richard Pildes's article, "Separation of Parties, not Powers," on the contemporary inaccuracy of Madison's "ambition counteracting ambition" account of how separation of powers works to protect against tyranny. The article's flaws are too numerous to go into here (one indicator of difficulty is the article's characterization of statutes enacted in 1946 as "recent" -- the article's word, not mine.) The snarky reaction is the apocryphal, "This article fills a much-needed gap in the literature." Or, equally snarky, if published in anything like its current form, this article will result in a decrease in human knowledge.

But published it will be, and not merely because a law professor can find some place to publish essentially anything (the secondary journal at a tier-three law school is desperate to fill its pages). Rather, it will be published because it is satisfyingly contrarian. And, in many law school circles, being contrarian (as such) is seen as a positive attribute. (It certainly is at Harvard, where it is routine in discussions of candidates for positions that an advocate for hiring a specific person will assert that a positive feature of the candidate's portfolio is that s/he is a contrarian.)

Being a contrarian means, I think, taking a position against the conventional wisdom. And far be it from me to be a generic defender of the conventional wisdom across the board. The conventional wisdom is (often?) wrong, though sometimes right. Now, if the conventional wisdom is right, being contrarian is no intellectual virtue. And if the conventional wisdom is wrong, you have to be contrarian for the right reasons -- that is, you actually have to identify how the conventional wisdom is wrong. And then, your intellectual virtue lies in doing that, not in the fact that you're contrarian.

It's like shooting fish in a barrel to offer some examples -- climate-change deniers are contrarians, but nobody seriously thinks that that's a reason for hiring them at a university. The case of "law" broadly understood is trickier because we quite often don't have agreed-upon criteria for sorting arguments that are right from those that are wrong. But, sometimes we can see that the contrarian argument depends upon empirical claims that are either only weakly supported or (as in the example at hand) have only the loosest connection to the claim that the conventional wisdom is wrong. And when that occurs, I think we can fairly say we are observing contrarianism in a bad form.

Of course this isn't to say that we might be justified in suppressing contrarianism of the wrong kind; there are good Millian reasons -- sharpening our understanding of why the conventional wisdom is right, or at least hasn't yet been undermined -- for not doing that. Rather, the point is that contrarianism as such isn't an intellectual virtue.

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