This article originally appeared here in The American Spectator.
Writing in the Chronicle of Higher Education, Katrin Schultheiss tells her story about enrolling in a doctoral program where so-called “Professor Famous” was on faculty. Professor Famous was, she submits, “an internationally renowned scholar” who “tended to schedule advising meetings during walks to his car to feed the meter.” (Presumably she meant to say that these meetings occurred while he walked to his car, not that he scheduled them as he walked.)
Although Schultheiss doesn’t specifically say so, she implies that Professor Famous was her first adviser. Her “new adviser” after Professor Famous was Professor Prominent, a “well regarded” man “but not a superstar like Professor Famous.” Unfortunately, Professor Prominent disappointed her, failing to comment substantively and promptly on her dissertation.
So she turned to a junior faculty member, a female, for help. This professor (Schultheiss doesn’t give her a playful moniker) diligently and thoughtfully commented on the dissertation, in effect completing the work that Professor Prominent should have done.
Professor Prominent’s nonfeasance has a name: “ghost advising.”
Ghost advising is probably common. I’ve heard similar anecdotes before. They reflect poorly on the professoriate, which already suffers, in some circles, from a reputation for laziness. Stories like these reinforce the stereotype that the university is not “the real world.”
As bad as this story is, however, Schultheiss’s extrapolation from it is unwarranted. She draws from her undeserved mistreatment, and presumably that of others, a grand inference about gender politics. “It has taken me two and a half decades,” she writes, “to recognize that my experience of having a senior male nominal adviser and a female (usually more junior) actual adviser is common throughout academe.”
Rather than use empirical methods to research gender disparities and conditions involving mentorships, rather than derive verifiable statistics and measurable data, Schultheiss disseminated a mass email to an unspecified number of female historians asking “whether they had ever served as a ghost adviser for the students of a male colleague.” She claims to have received over 100 affirmative responses to this unscientific poll.
Just how many people were on her email list? Were they selected at random? Did she know them personally? Or were they strangers? Did they inhabit different regions, types of schools, and stages in their career? Did she employ statistical models? Why did she write to historians but no faculty in other disciplines?
Schultheiss alleges an anecdotal pattern: senior male faculty members attract female graduate students to their department only to later ignore them or inadequately respond to their work. Without the male mentor, this narrative runs, the young female graduate student finds a female substitute who performs the role of the absent male. The accusation is that female faculty, by helping female graduate students, enable senior male faculty to gain prestige on the labor of females. Schultheiss suggests that female faculty systemically assist female graduate students while male faculty get credit for the results.
“I certainly don’t mean to essentialize here,” Schultheiss says as if to temper her rhetoric. “Women can be as arrogant, self-regarding, and oblivious as men.” She adds, “We all know women who neglect their graduate students after fighting to add them to their stable of advisees just as we all know senior men who are diligent and conscientious advisers.”
Then why spend most of her article complaining about male advisers? Instead of an angry-seeming op-ed, why not undertake a careful study to determine whether her hunch about male exploitation of female faculty bears out factually?
Without any hard-earned data or empirical methods to control for variables, she concludes:
Every aspect of the ghost-advising cycle is a product of the gendered behavior norms that are ubiquitous in our society generally. All the players in what might be called the family drama of ghost advising are complicit in perpetuating norms of masculine ambition and feminine helpfulness; of masculine genius and feminine drudgery; of masculine self-promotion and feminine self-effacement. We are participating in a system that values and rewards a very particular, masculine-coded model of professional and scholarly success, a model that is perpetuated and strengthened by feminine-coded behaviors such as empathy for a wronged student and a reluctance to appear selfish or ambitious.
Does this sweeping, expansive, unqualified complaint (every aspect, all players) have merit? Is it true that academic women “are expected to play the role of nurturing mother to a struggling student or supportive wife to a brilliant and ambitious male colleague”? (Schultheiss states that “too many academic women are painfully aware that they are expected to play the role of nurturing mother to a struggling student or supportive wife to a brilliant and ambitious male colleague,” but I suspect, in light of context, she means to say that too many women play that role, not that too many women are aware of that role.)
I chose an adviser for my dissertation early in my doctoral studies. I’m male. My adviser was female. Our relationship broke down, necessitating the intervention of the university ombudsperson and administration. In my opinion, my youngish adviser abused her power due to hostility toward my political beliefs. I have plenty of evidence to back up this view but have pledged confidentiality regarding the conflict that transpired between us. She was my adviser for almost three years and I made no progress towards my dissertation (although the entire manuscript had been drafted) under her direction. When the university aided me in replacing my adviser with a new one, a senior male faculty member, my dissertation was finished less than a year later.
Schultheiss may be correct about systemic gender bias and male-dominated mentorship dynamics. We don’t know for sure, in part because she didn’t do the requisite research before sounding off. Her charged rhetoric about how the system is “deeply rooted in gendered professional norms” is unnecessarily divisive and provocative because she has not attempted to gather numbers to verify her broad charges. She therefore comes across as hostile to men and unwilling to consider the viewpoint of male colleagues, many of whom likely could have corroborated her argument about “power structures” or at least provided her with different perspectives to consider.
The fact that she emailed no males for her polling opens her up to the accusation, or impression, that she has a chip on her shoulder, an axe to grind, that she doesn’t believe figures are needed to substantiate her indictment of the adviser system that purportedly enables heedless, powerful males to exploit young females. Had she asked around, perhaps approached some males about their experiences, she might have heard stories like mine. Learning that a prominent historian was seeking information about bad advisers, young males like me might have reached out to her to share their experiences and thereby diversify her samplings. Of course, those stories might have threatened to undermine the narrative she wanted to tell.
The role of the academic is, among other things, to contribute to the sum of knowledge, to advance scholarly conversations, to teach and employ reliable methods for deepening our understanding of a subject. This cannot be accomplished if one does not address pressing issues civilly and constructively through good-faith dialogue, if one seeks to inflame passions rather than ascertain facts and cultivate trust.
Scholars search for viable answers to concrete problems, or should. Schultheiss’s piece presupposes a problem without offering much in the way of a resolution. With its rousing language, mocking labels for male figures, and strong allegations of systemic impropriety, it may appeal to those already in-the-fold, or those bent on stirring up quick action, but it will alienate those who value civility, collegiality, and moderation. It may even complicate the problem, driving apart with its contentious tone those who are open to practical solutions.
Antonin Scalia, Bryan A. Garner, Commentaries on American Law, Frank H. Easterbrook, H.L.A. Hart, James Kent, Lon L. Fuller, Oliver Wendell Holmes Jr., originalism, Reading Law, Stanley Fish, Textualism, The American Spectator, The Common Law, The Concept of Law, The Morality of Law
The Law is Above the Lawyers
In Arts & Letters, Book Reviews, Conservatism, Humanities, Jurisprudence, Law, Legal Research & Writing, Literary Theory & Criticism, The Supreme Court, Writing on October 3, 2012 at 8:45 amThis review appeared here in The American Spectator.
Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (Thomson West, 2012)
Do not let its girth fool you: Reading Law by U.S. Supreme Court Justice Antonin Scalia and legal writing guru Bryan A. Garner is an accessible and straightforward clarification of originalism and textualism.* A guide for the perplexed and a manual of sorts for judges, this book presents 57 canons of construction. Each canon is formatted as a rule — e.g., “When the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent” — followed by a short explanation of the rule.
Frank H. Easterbrook, who provided the foreword to the book, submits that originalism is not about determining legislative intent, but construing legislative enactment. In other words, originalists interpret as strictly as possible the words of the particular text and do not look to the earlier maze of political compromises, equivocations, and platitudes that brought about the text. Each legislator has unique intent; projecting one person’s intent onto the whole legislative body generates a fiction of vast proportion.
That the process of enacting a law is so rigorous and convoluted suggests the importance of adhering closely to the express language of the law; legislators, after all, have taken into account the views of their constituents and advisors and have struggled with other legislators to reach a settlement that will please enough people to obtain a majority. A judge should trust that painstaking process and not overturn or disregard it.
Originalism involves what Stanley Fish, the eminent Milton scholar and literary critic turned law professor, has called “interpretive communities.” That is the very term Easterbrook employs to describe how judges should account for cultural and communal conventions at the time a text is produced: “Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption understood those words.”
To be sure, the original meaning of a text — what reasonable people living at the time and place of its adoption ordinarily would have understood it to mean — is never fully accessible. The meanings of old laws are particularly elusive. When a judge can no longer identify the context of a law by referring to dictionaries or legal treatises available when it was promulgated, then he should defer to the legislature to make the law clearer.
Judges should not impose their interpretative guesses onto the law and, hence, onto the people; nor should judges make new law on the mere supposition, however reasonable, that a text means something that it might not have meant when it was written. “Meaning” is itself a slippery signifier, and it is in some measure the aim of this book to simplify what is meant by “meaning.”
The book is not all about grammar, syntax, and punctuation. It has philosophical and political urgency. The authors propose that the legal system is in decline because of its infidelity to textual precision and scrupulous hermeneutics. A general neglect for interpretive exactitude and consistency has “impaired the predictability of legal dispositions, has led to unequal treatment of similarly situated litigants, has weakened our democratic processes, and has distorted our system of governmental checks and balances.” All of this has undermined public faith in lawyers and judges.
Scalia and Garner, who recently teamed up to write Making Your Case: The Art of Persuading Judges (Thomson West, 2009), proclaim themselves “textualists,” because they “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.” Most of us, they say, are textualists in the broadest sense; the purest textualists, however, are those who commit themselves to finding accurate meanings for words and phrases without regard for the practical results.
Consequences are the province of legislators. A judge ought to be a linguist and lexicographer rather than a legislator; he or she must be faithful to texts, not accountable to the people as are elected officials. (Leaving aside the issue of elected judges at the state level.) The authors seem to be suggesting that their approach needn’t be controversial. Originalism and textualism are simply names for meticulous interpretive schemes that could lead judges to decisions reflecting either conservative orliberal outcomes. One doesn’t need to be a fan of Scalia to appreciate the hermeneutics in this treatise.
Never have we seen a plainer, more complete expression of originalism or textualism. Reading Law could become a landmark of American jurisprudence, numbered among such tomes as James Kent’s Commentaries on American Law, Oliver Wendell Holmes Jr.’s The Common Law, H.L.A. Hart’s The Concept of Law, and Lon L. Fuller’s The Morality of Law. Although different from these works in important ways, Reading Law is equally ambitious and perhaps even more useful for the legal community, especially on account of its sizable glossary of terms, extensive table of cases, impressive bibliography, and thorough index.
Every judge should read this book; every lawyer who cares about law in the grand sense — who takes the time to consider the nature of law, its purpose and role as a social institution, and its historical development — should read this book as well. If Scalia and Garner are correct that the general public no longer respects the institutions of law, then this book is valuable not only for revealing the root causes, but also for recommending realistic and systematic solutions.
* Originalism and textualism are not the same thing; this review treats them as interchangeable only because Judge Easterbrook’s forward uses the term “originalism” whereas Scalia and Garner use the term “textualism,” but each author appears to refer to the same interpretive approach.
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