June 26, 2006

"Scalia twisted my words."

The Supreme Court doesn't cite too many scholarly works, so it's a thrill when one of yours is cited -- at least until you see your piece has been forever inscribed in the annals in support of a proposition that's exactly the opposite of what you meant to say.

UPDATE: Orin Kerr has at the censorious scholar. "Scalia agrees with and cites Walker’s descriptive argument but then disagrees with Walker’s normative views." That's the risk a scholar takes, of course. You can still be mad about it, you can probably get a spot on an op-ed page where you can vent.

24 comments:

Simon said...

Translation: "I don't like the Hudson result, and I don't want to be associated with it." You don't hear Nan Aron complaining about it.

Simon said...

Also, I'm not sure that it's cited in support of "exactly the opposite of what [Walker] meant to say." Walker argues that "there has been tremendous progress in the education, training and supervision of police officers since the 1961 Mapp decision" (internal quotation marks ommitted; I should make that clear, since I don't want to manipulate Sam's work), and Scalia cited that in support of the proposition that there has been noteworthy progress in the education, training and supervision of police officers since Mapp was decided. Clearly a shocking distortion. Is it really "twisting [someone's] words" if you agree with a factual observation made by a person, but disagree with that person as to the cause, and cite them only in support of the fact? Scarcely. Walker doesn't like the Hudson result; the rest is just gravy.

Notice, by the way, that with logic like Sam's, we're doomed to renewing the VRA forever. After all, it was a remedial measure enacted to deal with a very serious problem, and obviously, all the evidence that shows that it's worked is indicative only of how it needs to remain on the books as a prophylactic statute. Duh. It's so obvious now.

RichC said...

Well, Orin Kerr for one thinks Walker is off-base. See here.

J said...

"Scalia's opinion suggests that the results I highlighted have sufficiently removed the need for an exclusionary rule to act as a judicial-branch watchdog over the police. I have never said or even suggested such a thing"

According to the op-ed by Walker, Scalia says Walker's data support his ruling, not that Walker himself does. I don't see what the problem is here.

Ann Althouse said...

I'm just noting Walker's emotional experience, not saying Scalia miscited him.

SteveR said...

The problem with expressing yourself, no matter how well reasoned, is someone will "twist" your words. If you can't handle that, write better or shut up.

Ann Althouse said...

Stever: Yeah, I see that every day in blogging.

jeff_d said...

Well this is timely in light of last week's discussion of the interplay between law and social science.

Here, the criminologist uncovers empirical data and derives from it a policy preference (the Supreme Court must continue to micro-manage police work). As his op-ed makes amply clear, he obviously feels that the policy preference is the core of his work. The judge, however, chooses to take the criminologist's empirical conclusions and leave the policy arguments.

And now the criminologist is angry: failing to reach the same conclusions he did from empirical data is "misuse of evidence." Actually, I think Justice Scalia paid a compliment to Mr. Walker’s discipline—citing as authoritative the empirical data without mistaking the subjective policy conclusion for part of the science. Mr. Walker’s beef is not so much with Justice Scalia but with a system of government in which we (mostly) impose legal rules by the consent of the governed, rather than as directed by the experts.

vnjagvet said...

When he reflects more on all of this, I suspect Walker will eventually feel the warm glow of being recognized by the Supreme Court;>)

There are not many criminologists whose studies are cited by the court in landmark cases.

You've got to take the bad with the good, after all.

the pooka said...

I agree (I think?) with Ann that "horror" seems a bit over-the-top, as reactions go.

That said, I think Walker does have reason to be upset at being misused by Scalia. Walker's EMPIRICAL argument is essentially that "thanks to Mapp, Miranda, etc. police departments have been forced to curb misuse of authority, and they have done so." That is, he makes a causal argument about the relationship between the exclusionary rule (and other things) and the increase in police professionalism, and then backs up that causal argument with empirical data. Scalia takes the "...and they have done so" part out of context, and then uses it to argue in favor of undermining Mapp.

(I know, I know, Hudson is a relatively weak "attack" on Mapp, but the point still holds).

Now, suppose some other legal/empirical scholar (John Lott, perhaps?) had said and demonstrated empirically that, in effect, "reinstitution of the death penalty after Gregg led to a decrease in murder rates since the 1970s," and makes a causal claim that the former led to the latter. If I used that (strictly empirical) finding -- that murder rates have decreased since the 1970's -- in support of an argument that we can and should now eliminate the death penalty, I'd be making a similarly questionable sort of move.

Jacques Cuze said...

Althouse ❤s Walker

Armando takes a passage from an article I wrote years ago, which I happened to have posted in the comments section of this post the other day. He refers to the passage as a "pile of manure" and doggedly states his opinions without engaging with the intellectual substance of what I'd said.

Naturally, he doesn't read the whole article that precedes the conclusion, which parses all the legal texts. I don't have a link for it. You'd have to go into LEXIS to read it. Look for: Althouse, The Authoritative Lawsaying Power of the State Supreme Court and the United States Supreme Court: Conflicts of Judicial Orthodoxy in the Bush-Gore Litigation, 61 Md. L. Rev. 508 (2002). I don't blame him for not reading the whole thing, only for writing as if there wasn't an entire detailed article supporting the conclusion he's satisfied to call "manure."

Simon said...

"That said, I think Walker does have reason to be upset at being misused by Scalia. Walker's EMPIRICAL argument is essentially that "thanks to Mapp, Miranda, etc. police departments have been forced to curb misuse of authority, and they have done so." That is, he makes a causal argument about the relationship between the exclusionary rule (and other things) and the increase in police professionalism, and then backs up that causal argument with empirical data."

I don't think that's entirely accurate. The emperical point that Walker makes is that the police have become very much more professionalized in the last few decades, which is precisely what Scalia quoted. He may also make a causal argument that this is thanks to the exclusionary rule (an argument I have no particular beef with), and he may also conclude that as a result, the exclusionary rule is needed as an ongoing prophylactic measure rather than simply a remedial measure, but those are secondary. What is not disputed by anyone - even Walker - is that (a) police conduct has improved, that (b) Walker's book says as much, and that (c) Scalia cited its emperical statement, which is fair game. Does one really have to accept the reasoning to accept the result? If so, why does any Justice concur, rather than simply join the majority?

Simon said...

Quxxo -
The difference is that Armando did actually misrepresent Ann's work (misrepresented, or failed to comprehend; take your pick), while Justice Scalia simply cited an emperical observation by Walker without accepting the latter's conclusions from that emperical data. No equivalency.

Jacques Cuze said...

In other words, if it was intellectually dishonest for Armando to write as though you didn't have an entire article to back up your points, then it was also intellectuall dishonest for Scalia to bring up Walker without any discussion of Walker's contrary conclusion.

It would be the same as if Althouse, in class one day, cited some obscure case in her favor, when she as the professor knew the case actually concluded the opposite.

In this case Scalia is depending on the logical fallacy "appeal to authority" but either he has not interpreted the authority correctly, or he is being purposefully deceitful in not mentioning that his authority disagrees with him.

I understand logic is a difficult subject for lawyers.

Simon said...

"if it was intellectually dishonest for Armando to write as though you didn't have an entire article to back up your points, then it was also intellectuall dishonest for Scalia to bring up Walker without any discussion of Walker's contrary conclusion."

What total and utter rot. Scalia was not referencing Walker's conclusions, he was citing the emperical study sans conclusions. You do not have to accept the authority of a study's conclusions to accept its numbers. Period.

"In this case Scalia is depending on the logical fallacy "appeal to authority" but either he has not interpreted the authority correctly, or he is being purposefully deceitful in not mentioning that his authority disagrees with him."

More total and utter nonsense. Scalia is citing the emperical section of Walker's work as being an authority, but the emperical section of Walker's work does not depend or rely on his causal argument. Your strongest argument would be that Scalia could have added a footnote explaining that Walker adds to his emperical data the comment that he thinks it's because of X, Y and Z, but even that is tenuous. The question is this: does Scalia misrepresent Walker on the terms for which he is cited? He is cited for the proposition that the police are now better trained. Nobody - not even Walker - disputes that this is accurate. What Walker is really irritated by is that his data was used to reach a conclusion he disagrees with, a far harder proposition to defend. He wasn't misrepresented, he was disagreed with.

Think of it like this: last week, I posted a long, emperical survey presenting the current partisan breakdowns of state legislatures and the mechanisms in each of those states for ratifying constitutional amendments. My conclusion was that these figures compellingly demonstrated that the Federal Marriage Amendment cannot and will not be ratified; are you seriously telling me that if a proponent of the FMA cited my post as an authority for what the figures are, but used those figures to reach a conclusion opposite to mine, that he has to explain in a footnote that I used those figures to reach an opposite conclusion? Don't be ridiculous.

Jacques Cuze said...

Would you please stop writing "emperical". You clearly have no idea what that word means. You've done that nine times now. I'm giving you a clear and fair warning that if you do that again, I am going to ban you.

He wasn't misrepresented, he was disagreed with.

How do you know? You are a mind reader now? Empirically, it can be seen that Scalia did not address Walker's contrary conclusion in any way shape or form. He used Walker's data without discussing Walker's opposing argument. That is the very definition of disingenous and it is intellectually dishonest.

It's okay though, empirically, I have larned that lawyers have a very difficult time with understanding concepts of intellectual honesty and disingenuousness. I don't blame you as much as I blame your professors.

Simon said...

Fine, fine, empirical. I may not be able to spell, but you still demonstrate your persistent and bemusing dedication to being utterly clueless on the substance of the issue at hand.

Jacques Cuze said...

What total and utter rot. Scalia was not referencing Walker's conclusions, he was citing the emperical study sans conclusions. You do not have to accept the authority of a study's conclusions to accept its numbers. Period.

I wonder how many scientists would work under your proposition. You need to post your raw data and you will receive no discussion of your conclusions, pro or con. What is it that scientists work for?

To cite the author's work is an appeal to authority. You are inherently claiming this expert would agree with you.

And if that is not your claim, then you need to discuss it. To cite the author's work without citing your disagreement with the author's conclusion is poor academic research at the least. It is either disingenuous and intellectually dishonest or it shows you did not actually read or understand the work.

Abraham said...

He used Walker's data without discussing Walker's opposing argument.

Which is perfectly legitimate because he was citing the data and not the argument. As long as the data is what Scalia says it is, there is absolutely nothing disingenous about it at all.

I think you're misunderstanding this on purpose.

Simon said...

"To cite the author's work is an appeal to authority. You are inherently claiming this expert would agree with you."

And Walker does agree with him! Walker and Scalia are in total and complete agreement on the proposition for which Scalia cited Walker: that the police are better trained today than they were forty years ago. The disagreement is on an issue entirely separate to the question at hand.

This is really becoming tiresome. You are too busy trying to find fault with Scalia to see the readily apparent faults with your argument. Sometimes I think that if Scalia - or Althouse - said that you had an unusually large nose, I wouldn't be surprised if you cut it off just to spite him.

the pooka said...

The "appeal to authority" argument is beside the point.

Try to follow me:

"A" says:

"Up until the 1950s, thousands of cases of polio were reported in the U.S. every year. As a result of the introduction of effective, widely-available vaccines for the disease, infection rates declined dramatically throughout the 1960s and 1970s. Currently, poliomyelitis has been eradicated in the U.S. and in the entire western hemisphere."

"B" says:

"As A notes, polio has been eradicated in the U.S., and indeed in the entire western hemisphere. It therefore stands to reason that vaccinations for polio are no longer necessary, and should be eliminated."

Now, it is clear that both A and B agree that polio has been eradicated in the U.S. What is equally clear (at least to me) is that B, by looking only at A's conclusion, but not her causal argument (which, itself, is a matter of data and empirical evidence, and not "normative" at all, or "just an opinion"), at best misconstrues those data and reaches an incorrect (that's factually incorrect, not politically incorrect) conclusion. At worst, B is simply intellectually dishonest (as well as wrong).

FWIW, the comments on the Kerr piece seem to be running in support of this take on the situation.

(Now, please don't think less of me because I agree with quxxo on this -- I got there first...).

Simon said...

I see what you're saying, but I'm not convinced. I'll stand by my earlier comments. :p

"Now, please don't think less of me because I agree with quxxo on this -- I got there first...)"

He isn't always wrong. Sometimes, in spite of himself, he does get it right...But not this time. ;)

jeff_d said...

Pooka:

Your argument in favor of a causal relationship between use of the exclusionary rule and improved law enforcement practices is a perfectly logical one. Maybe Justice Scalia should have addressed it. However it is not intellectually dishonest for him to use the underlying data without discussing the possibility of a causal relationship.

Both your polio example and your death penalty deterrence example are distinct, because there is reason to believe that what Scalia was referring to was simply the evolution of formalized police training. Like any industry, improvements occur over the course of time, and it is simplistic to ascribe them entirely to Supreme Court jurisprudence. There are plenty of fields of endeavor that the Supreme Court has left alone, and yet improvements have been made just the same.

Again, your argument for a causal relationship is just fine, but nothing in Walker's op-ed or the comments here offer anything but speculation in support of it. Not bothering to address such speculation is not "intellectually dishonest."

If Walker's research controlled for factors other than the Supreme Court's jurisprudence in reaching the conclusion that the Supreme Court caused improved police work, I would be inclined to agree that Scalia's use of Walker's work was misleading. Nothing in the op-ed suggests such an approach, and I therefore don't take too seriously the claim that Walker's preference for an absolutist approach to the exclusionary rule is derived from scientific proof.

Simon said...

"Like any industry, improvements occur over the course of time, and it is simplistic to ascribe them entirely to Supreme Court jurisprudence. There are plenty of fields of endeavor that the Supreme Court has left alone, and yet improvements have been made just the same."

I agree with that, but since I've made the point at least twice above, I'll make it a third time: even if Walker is correct, and the improvements are causally (and necessarily) related to the stringent enforcement of the exclusionary rule, it is quite a jump to then say that without the exclusionary rule (a) those improvements would not have happened anyway, and (b) that without suppression of evidence as per Hudson, that the police will necessarilly regress to pre-Mapp practises. Hence my comparison above to the VRA: that a policy or rule was wholly necessary when it was enacted as a remedial measure, and that it has been wholly effective as a remedial measure, are not in themselves an argument for that measure's continued existence as a prophylactic rule when the problem it was intended to remedy - and has remedied - ceases to be a problem.