Some Thoughts on Raising the Sanity Waterline

[I am happy to share this guest post from Professor Seth Barrett Tillman, which addresses some discourse on legal academia, including a recent post by Will Baude.]

There has been much back-and-forth on social media and blogs lately about what constitutes good behaviour for academics. Having been in academic affrays from time to time—mostly unsought by me—I thought I would add my thoughts on that and some closely related issues.

1. E-mail.

For academia to work, we have to be free to talk to one another. And that means contacting one another, without fear of sanctions. From time to time, I have sent or offered to send other academics, in law and other fields, courtesy copies of my drafts and published articles. I often make such offers to people whom I have cited or people who have written about one of the topics discussed in my paper. Usually, I will receive one of two pro forma responses. Many will write back: "Thank you very much, I am sure I will benefit from reading your contribution to the literature, as time allows." Alternatively, I will sometimes receive: "Really—no need for e-mail contact in the future—I stay abreast of developments in the literature." The virtue of these two responses is their directness, clarity, and guidance: they leave you no doubt about whether future contacts are desired. Yes to the former; no to the latter.

Still, on other occasions, I have not received any response at all. And that produces a quandary: Do you contact that person again? So, a year or two or three later, I might have another paper, and I might e-mail a non-responding recipient a second time or third time or fourth time. At that juncture, I might receive a pro forma response. But I might not. At that juncture, I might get a (pleasant) response along these lines:

Professor A: Dear Professor Tillman—thank you so much for writing me. Your article comes timely as I am writing/teaching on this topic currently, and I will be sure to cite/discuss your new perspective. (Albeit, I am not saying, I agree with it!) I now see also that you wrote me on several prior occasions. My mistake—your e-mails went to my spam folder, or perhaps, I just did not recognize your name and mistakenly ignored your e-mail. I won't do so again.

This has happened to me more than once, and it has led to fruitful contacts, intellectual exchanges, and occasionally, friendships.

On other occasions, you get another sort of response.

Professor B: Mr Tillman, I have received your recent e-mail, as well as several prior e-mails. I chose not to respond to your prior e-mails. But you still persist in contacting me. You should have taken the hint. But seeing that you have not: stop now.

In situations involving a non-responding e-mail recipient, we can let Professor-A or Professor-B set the norm for good (academic) behaviour. We can value autonomy, privacy, and peace of mind. If so, a first-non-response becomes a basis for a sender's refraining from future contacts. Or, we could let Professor-A set the norm. In that situation, a non-response counts for nothing because it lacks clarity and directness. This leaves the possibility open that future contacts will be welcomed. As they sometimes are.

So what to do?

Given that our business—academia—exists to develop ideas, my view is that one ought to risk upsetting many Professor-B-type-individuals to discover any one Professor-A. It is this latter strategy that permits the exchange of ideas, even if it risks some unwelcome and some unpleasant contacts. I might add: unpleasant for both the recipient and the sender. To put it another way, I do not think we should let the most fragile personalities amongst us set the ground rules for intellectual contact.

2. Responses As Counter-Authority.

I have had the good fortune of putting forward novel ideas from time to time. Putting forward a new idea poses challenges. One such challenge is: What to do with counter-authority? Any development of counter-authority runs the risk that one will present such evidence in a biased manner in order to insulate one's idea from criticism. And even if one does not do that, more than a few readers might very well suspect that you have done so. That's why in the past, I have actively solicited responses to my articles to be published along with my own. I either reached out to the respondent myself (usually to several potential respondents) or had the journal, where my publication was placed, do so. See, e.g., Lawson (2005); Levinson (2006); Bruhl (2007); Kalt (2007); Calabresi (2008); Blomquist (2009); Prakash (2009); Sheppard (2009); Bailey (2010); Peabody (2010); Teachout (2012, 2014, 2016); cf., e.g., Hoffer (2014); Kalt (2014); Melton (2014); Stern (2014); Baude (2016). In one of these exchanges, I had good reason to believe that I had information unknown to the respondent—so, I sent that information to the respondent, leaving it to that individual how (if at all) to make use of the information and how to present it.

There are many benefits to this approach, albeit, there are some downsides too. On the upside: First, it frees up your allotted journal space to present your idea as a standalone idea. Second, it leaves it to others how best to knock your idea down—and such points, as necessary, can be addressed in replies. Third, the exchange itself makes both publications attractive to readers—as the exchange itself is some indicia that a serious idea is at stake, and that the idea and counterpoints are well presented. Fourth, by inviting a third party to respond, you often make a friend, particularly if that person is a junior academic who is happy to have an extra publication. The downside is that there will be a few less-than-well-informed readers who are not bemused by your new idea, who believe that they have a monopoly of expertise, and who are entirely unaware of the existence of the response, and so, they are led to think that obvious counter-authority has been ignored—if not wilfully hidden from the readers. (Of course, they know all about what was purportedly hidden.) Here too, I do not think we academics should live in fear of the most mistaken and most suspicious amongst us—otherwise, we lose the advantages I outlined above. See, above, First through Fourth.

3. Changing One's Mind.

It is a good thing that what are considered settled issues are re-opened from time to time. Moreover, people should get to change their minds. Indeed, if a person has never changed his mind or has never expressed doubt about ideas he has held, then it is fair to ask what sort of mind that person has. When a person changes his mind—particularly in public—they court opprobrium for doing so. Rather than punishing people for risking their reputation, we should praise their courage.

Recently, Professor Calabresi has changed his mind. In 2008, he thought I was wrong about one of my novel ideas about the Constitution's "office"- and "officer"-language. More recently, he has taken the opposite view. Professor Baude has moved in the opposite direction in regard to my novel idea about the Constitution's "office"- and "officer"-language. In 2016, he put forward praise. More recently, he has taken a different position. Although I understood their 2008 and 2016 views, I really do not understand why they have changed from their prior positions. But that's my problem, not theirs. They have started a new conversation. They work on their schedules; they don't owe me a further detailed explanation about why they changed their views. Perhaps, they are each satisfied that they have put forward grounded, fully fleshed-out explanations for their change of position. Perhaps, they think that I just do not understand their new reasons for having changed their minds. And if so, they have no reason to return to these issues.

In any event, both Calabresi, in 2008, and Baude, in 2016, and both Calabresi and Baude during the recent Trump-related ballot-access litigation (2023 and 2024) spelled my name correctly and cited my material correctly. So, I have nothing about which to complain. I hope that one day they both return to these issues, but that's just a hope. And if they do not do so, they and I have plenty of other things to do with our time.

4. What Academics Should Not Do On Social Media.

There are more than a few legal academics whose behaviour on social media fails to meet the standard for good behaviour. They publicly deprecate ideas, causes, individuals, and organizations in hyperbolic terms. The problem here is not the lack of public reason. (That's a problem, but it is not the problem.) The problem here is not the injury, deserved or not, incurred by the targets of their tweets, and the concomitant social media mob. (These are problems too, at least, where the injury is not entirely deserved.) Rather, the problem is the model these academics are setting for students—including their own students.

The legal academics who engage in this sort of behaviour have tenure. They are part of a protected class enjoying institutional goodwill and privilege arising in connection with special protections which accrued to universities during feudalism. Our students do not enjoy such benefits. And employers, public and private, now monitor the social media footprints of both those who apply for work and extant employees. When students copy the less than wholesome behaviour of these academics, they may find themselves unemployed and unemployable. These academics are trading their students' futures for the rush of an exhilarating barb.

Anyway, that is social media. Academic articles are, arguably, another thing. Perhaps the standards are different. Still, if your articles systematically describe others' work-product as "appalling" or "wacky" or "bonkers" or in other similar language … you might not be Raising the Sanity Waterline. William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. 605 (2024).