Category Archives: professionalism

Rules of engagement for academic adversaries

Academics argue. That’s what they do. They argue against each other’s theories and results; they propose alternatives they believe are superior; and those theories, in turn, become the subject of critique by their colleagues. Yada, yada, yada, we all get closer to the truth.

Read between the lines and academic argument often sounds pretty passive-aggressive. As if we’re often not sure which kind of argument we are trying to have. The distinction between the two sense of the English word “argument” is, of course, most perfectly explained by those Cambridge philosophers, Monty Python’s Flying Circus:

 

So how ought we to argue in academia? Politely. Why? Because it works.

I recently came across some advice from the great American philosopher Daniel Dennett on how to write a scholarly critique. (I haven’t yet tracked down the citation, or the larger context in which it was written, but the advice given here is perfect all on its own.)

dennett

1. You should attempt to re-express your target’s position so clearly, vividly, and fairly that your target says, “Thanks, I wish I’d thought of putting it that way.”

2. You should list any points of agreement (especially if they are not matters of general or widespread agreement).

3. You should mention anything you have learned from your target.

4. Only then are you permitted to say so much as a word of rebuttal or criticism.

If I may, I would add a fifth point:

5. Once you have presented a rebuttal or criticism, search the text in question to see if the author has already considered and responded to your criticism; and if he or she hasn’t then it is up to you to formulate the best possible responses to this criticism, given the author’s other commitments. Either way, voice this actual or potential replies to your critique explicitly, and respond to them. Repeat….

So what kind of friendly advice is this? Is it academic etiquette? Academic ethics? Or the key to academic effectiveness?

If the academic community you are in has a sufficient degree of intellectual integrity, then its widely recognized leaders will have convinced a good many of their colleagues that they have discovered flaws with previous theories and findings in the field, and they will have demonstrated this critique, its implications, and possibly a new-improved theory in its place, with a reasoned argument involving clear concepts, evidence, and inferences. (In an academic community without a sufficient degree of integrity, institutional and political power will be the main tools for achieving local, if fleeting, fame.)

In any case, if your chosen field has integrity, then Dennett’s advice unites those three E’s: etiquette, ethics, and effectiveness. If you want to have an impact on the debates in your field (and if not, why are you doing this?), you need to get your critique published. Editors will invite the authors you are engaging with, or others known to be sympathetic with their views, to “referee” your critique. If they think you have simply not understood the ideas you are criticizing; or worse, if they think you have deliberately misrepresented them, then they are highly unlikely to be persuaded by your arguments — assuming they even read all the way to the end of your MS.

On the other hand, if you play nice and follow Dennett’s rules, the Journal editor may well read in the referee’s report not only “I wish I’d put it that way myself,” but also “OMG, I never noticed that gap in my argument/ that ambiguous concept/ that invalid inference/ that inconsistency….! I hope I can fix that, but this critic may be onto something original and important!” As a former editor, I can assure you, we do get those kinds of referees’ reports on papers that are criticizing their own theories. And when when we do, those submissions are usually fast-tracked for publication.

I should underscore that Dennett’s advice runs deeper than mere professional decorum or publishing tactics. If you are not successfully mastering Dennett’s first step, then you are probably not grasping why the theory you are criticizing has been taken seriously. Why it might be smarter than you realize. Similarly, if you don’t consider how an intelligent interlocutor would reply to your critique, then are likely to be ignoring the most obvious objections to your critique — the one’s the referees will not fail to point out.

But if you really are onto something, then bending over backwards to demonstrate the inescapability of your critique in a spirit of intellectual fairplay will only make the critique itself that much harder for your academic community to ignore. You “win” in the nicest possible way.

The Most Expensive Honey I’ll Ever Have

I’m a skilled dog whisperer. Given that, I was talking with my dog, Honey, the other day about current events. After she complained to me that she was being cruelly starved (really, is it too much to ask for some lasagna and apple pie in her food bowl, too?), she brought up Martin Shkreli of Turing Pharmaceuticals and his actions concerning a prescription called Daraprim. Honey, the intellectual she is, informed me that Daraprim is the only treatment for humans with a parasite infection but not an immune system strong enough to fight it (an example of such a person would be a cancer patient). The medicine costs mere cents to make and was originally sold for about $13 per pill. So, Honey thought, Turing made excellent profits to begin with. But then hedge fund manager Shkreli increased that price to over $700 per pill, making him and the company exorbitant profits (imagine how many chew toys you could buy with that money!).

So, if a human were in the position that he needed Daraprim, he either needs to empty his pockets or die. So what are the people in this situation going to do? They’re going to pay it, if they can, and otherwise they have to wait on a looming death sentence as they die off slowly. Unfortunately, Honey, commented, humans aren’t as lucky as animals because they can’t be euthanized when death is imminent (an ethical discussion for another day).

So, is there a valid reason for this price inflation of Daraprim? Some people might label it greedy. Heartless, even. It’s one thing to pick on people, but to pick on the feeble and dying? That just seems so much more wrong.

Then Honey brought up a good point – people are enraged by this manipulation, but actually it’s more common than you’d think. Such price gouging already exists in the medicinal market; it’s just that many don’t think twice about it because, legally, it involves property. She was referencing herself, her animal friends and veterinary medicine. Honey and my family know the price of veterinary medicine too well. Honey was diagnosed with cancer about 18 months ago. At the time, my family was given two options: (1) let her die within the next few months or (2) treat the cancer, which could keep her alive for years. That treatment, though, would cost hundreds of dollars per month. It wasn’t a hard decision – Honey made a list of all of the good she brought into my family’s life (how else would we get exercise except for chasing her when she stole undergarments and shoes? who was going to perform the important task of shredding wrapping paper on holidays? how would we fill the silence in the morning without her whining…hem…singing?). My family didn’t need much convincing; we created a budget and started Honey’s treatment immediately.

Honey is an integral part of my family, just as many other pets are to their families. It’s not just us that are willing to go to great lengths for our four-legged friend; thousands go to veterinarians with their pets, diagnosed with life threatening conditions, and are willing to do anything in order to same them, even if it costs them a small fortune. How is this so different from when someone’s grandma is diagnosed with cancer and unable to fight off a parasite except for a prescription that costs an arm and a leg, but pay it anyways because they love her? Why are the market ethics of human medical treatment and animal medical treatment so polarized? They both have to do with living beings. Honey thinks that pet pharmaceutical companies, like Shkreli, bank on that emotional attachment to the lives that the law has so cruelly reduced to property. Why are they allowed to profit off of expensive but necessary medication for pets, but it’s taboo if the profit is a byproduct of expensive human medication? I brought up to Honey they differences between human and animal care, especially research funding and healthcare, but she still thinks that both should be approached, at least morally, from similar positions.

Honey’s story has a happy ending (maybe a better word would be continuance) – my family was able to get her the necessary treatment and she, the champion that she is, managed to beat the cancer into remission. The vet thinks that Honey has a lot of years left in her. We think that more animals should have such chances.

Is the Supreme Court an arena?

(Posted by Wayne.)

… and if so, is what goes on there like hockey or figure skating?

We standardly think of the adversarial legal system as one of the “classic” deliberately adversarial institutions. (This blog is about whether there are special rules for the design of, and behavior within, such institutions.) The most visible — and tele-visual — parts of the system involve lawyers representing two or more sides of a case battling it out, within the rules, to advance the interests of their clients (or of The People, in the case of prosecutors).

But not all parts of the justice or legal system are adversarial. It’s an open question how we should think about both the theory and the practice of what goes on at the “top” of the system — the Supreme Court (to give a US example; but all constitutional democracies have something similar). It certainly looks adversarial in important ways. Its role is to settle contentious issues in the law, and it does this by dealing with actual cases where one side doggedly disagrees with the other. Like lower courts, it will also listen to lawyers representing the opposing sides. And of course, we can’t ignore the fact that the justices on the Court are nominated by the President and approved (or rejected) by a very adversarial legislature.

And yet, the work of the justices themselves is expected to be entirely professional. They are meant to figure out, individually and collectively, the best interpretation of laws and the Constitution. They are not supposed to be representing any particular interest, and are even expected to set aside their own biases and interests — and if they cannot, on a particular case, to step aside. No individual member of the Court is supposed to be trying to “win” anything. Cases are supposed to be decided on their merits alone — may the best arguments be the winners.

Next week the Court will begin its deliberations on the Affordable Care Act. In advance of the three sessions where the justices will hear arguments, the New York Times has recently highlighted two interesting aspects of the nature of the Court within the deliberately adversarial justice system.

First, it noted that

The White House has begun an aggressive campaign to use approaching Supreme Court arguments on the new health care law as a moment to build support for the measure seen as President Obama’s signature legislative achievement, hoping to shape public opinion on an issue at the center of the battle for the White House and Congress.

Now this would not be unusual as a matter of politics: the President and his party are part of another nakedly adversarial system called democratic politics, and elections are looming. But what is unusual about these current plans is that they suggest that such politics may also be trying to influence the justices themselves.

The advocates and officials mapped out a strategy to call attention to tangible benefits of the law, like increased insurance coverage for young adults. Sensitive to the idea that they were encouraging demonstrations, White House officials denied that they were trying to gin up support by encouraging rallies outside the Supreme Court, just a stone’s throw from Congress on Capitol Hill…

Supporters of the law plan to hold events outside the court on each day of oral argument. The events include speeches by people with medical problems who have benefited or could benefit from the law. In addition, supporters will arrange for radio hosts to interview health care advocates at a “radio row,” at the United Methodist Building on Capitol Hill.

The law’s supporters may have to get there early if they want the best patch of sidewalk:

Opponents of the law will be active as well and are planning to show their sentiments at a rally on the Capitol grounds on March 27, the second day of Supreme Court arguments. Republican lawmakers, including Senator Patrick J. Toomey of Pennsylvania and Representative Michele Bachmann of Minnesota, are expected to address the rally, being organized by Americans for Prosperity, with support from conservative and free-market groups like the Tea Party Express.

Your guess is as good as mine about what influence all of this will have on the nine individuals charged with the final decision. It is nonetheless a curious “grey area” partisan political activity swirling around a part of the justice system that is supposed to be non-partisan and non-political — or at the very least, not susceptible to the emotional volume of support for one side or the other. The White House’s own cautious framing of their strategy seems to acknowledge that they are toeing close to a line they don’t want to cross.

Meanwhile, we hear whispers that the Chief Justice himself, John Roberts, may be approaching his pending vote among his colleagues with concerns that go beyond the correct interpretation of the law. The guess is that he will not necessarily vote for the side with the best arguments.

The consensus among scholars and Supreme Court practitioners is that Chief Justice Roberts is unlikely to add the fifth vote to those of the four justices in the court’s liberal wing to uphold the law. But he is said to be quite likely to provide a sixth vote should one of the other more conservative justices decide to join the court’s four more liberal members.

Why might he be willing to vote either way?

The case will require the chief justice to choose between two competing instincts.

On the one hand, he views himself as a steward of the court’s prestige and authority, and he has called for incremental decisions from large majorities rather than broad but sharply divided rulings. “As chief justice, Roberts has been extremely careful with the institutional reputation of the court,” said Barry Friedman, a law professor at New York University who has filed a brief urging the court to uphold the law.

The court has not rejected legislation as ambitious as the health care law since the 1930s. There is, moreover, only one plausible way for the justices to strike down the law, scholars who study the court say: by a 5-to-4 vote divided along ideological lines.

All of that might augur a cautious approach.

Now this is not unusual practice for judges in constitutional courts: to decide politically charged cases in ways that will serve to uphold the legitimacy of the Court — where legitimacy requires its being perceived as a fair, neutral party.

So what might this tell us about principles for design and professional behavior in other deliberately adversarial institutions? Sometimes “players” have to act in ways that uphold the “integrity of the game” even if this requires refraining from a winning tactic, or from carrying out a routine professional duty.

Interestingly enough, in the controversial Citizens United ruling, the Roberts Court struck down legislation that the politicians had put in place to preserve (some of) the integrity of their adversarial institution. The politicians had agreed to limit the influence of corporate money, along with perceptions of bias and corruption. Not all members of the majority denied that a flood of corporate money would have these consequences for democratic processes, but they felt nevertheless that rights to free speech couldn’t be infringed for the sake of the legitimacy of that process. If the rumors are true now, however, it seems that the Chief Justice may be willing to overlook a fundamental right being infringed by the new health care law for the sake of the Court’s “prestige and authority.”

Redshirting: Holding kids back from kindergarten is bad gamesmanship

This past Sunday, 60 Minutes did a segment on academic redshirting, the practice of holding kindergarten age-eligible children back in order to allow extra time for socioemotional, intellectual, or physical growth. The segment also included an interview with Malcolm Gladwell, who articulated a similar phenomenon in the case of older hockey players in his book Outliers (Gladwell calls the phenomenon “accumulative advantage”). In the many adversarial institutions these parents want their children to excel in (little league sports, elementary academics, and the cafeteria social hierarchy), there is a significant advantage for students who are older. The 60 Minutes segment showed a lot of eager mothers who adamantly claim they were not breaking any rules, but just doing what was best for their children.

Within current confines, those parents are not breaking any official rules. But, there is a sense that eager parents are gaming the system. This sort of gamesmanship also signifies a paradigm shift in extracurricular activities. Little league sports are no longer just for fun—they are institutions that cultivate talent and personalities prone to success. Most interestingly, it also appears that the process of raising children has shifted from a once inherently rewarding practice to an adversarial institution where the benefits of winning are permanent.

When judges compete

All open hiring processes are competitive, even when the future employees are expected to work as professionals in a relatively non-adversarial setting. So this article from the New York Times describes an intriguing attempt to regulate an adversarial processes, “Judges compete for law clerks on a lawless terrain“:

Federal judges are entrusted with interpreting and applying rules fairly and consistently. Except, it seems, when it comes to hiring their own staff.

The judges compete aggressively each year to recruit the best law students to work for them as clerks, prestigious positions that involve research, counsel and ghostwriting. But the process has become a frenzied free-for-all, with the arbiters of justice undermining each other at every turn to snatch up the best talent.

Based on rules that were intended to curtail shenanigans, judges hiring for the 2012 season were supposed to begin interviewing third-year law students no earlier than Thursday, Sept. 15 at 10 a.m. But somehow, at the federal courthouse in downtown Manhattan, most of the interviews — and job offers— had already concluded by 9:45 a.m.

Indeed, hoping to leapfrog their peers, most judges actually began interviewing hours (if not days or months) earlier.

While everyone in the process seems to agree that the competition for recruiting clerks is somewhere between “frenzied” and “insane,” there is not even consensus on whether it can be improved through “NCAA-like” recruiting regulations.

“I’m not into cartels or collective action or things like that,” says Alex Kozinski, chief judge of the Court of Appeals for the Ninth Circuit in San Francisco, who has vocally criticized efforts to regulate the recruiting process. So when does he start recruiting? “At birth,” he says.

There have been several attempts to levy self-enforced rules, similar to those used by the N.C.A.A. for recruiting young athletes, with the most recent system created in 2003. While none of the students interviewing at the federal courthouse in downtown Manhattan that Thursday wanted their names published for fear of jeopardizing their careers, many expressed frustration with the process.

“It’s insane and has been driving everybody nuts for years,” said one student from a top 20 law school who had three interviews in New York that day, and three others across the Midwest this week. “But I don’t really see any way to fix it.”

If largely self-enforced rules can’t hold because the professionals themselves aren’t willing to be self-regulating, the options seem limited. When is the last time you saw judges involved in a prisoner’s dilemma?

Race-to-the-bottom watch: The sensational path to the gutter

In today’s 24-hour coverage by cable and internet news media, keeping abreast with current events has become more convenient than ever, but has the increased quantity of news come at the expense of quality?

The ubiquitous nature of news as a product of technological innovation has created a fierce competition among media outlets. Cable news networks such as FoxNews, CNN, and MSNBC compete daily to increase their market share of a limited number of viewers. In this market of perfect or almost perfect substitutes, the logical option to beating your competitors would be to try as much as possible to differentiate your product from the rest of the field, and this is exactly what cable news networks engage in.

A favorite strategy of networks in distinguishing their products is to rely on the over-the-top personalities of their journalists. As a consequence, we have seen a gradual shift of importance away from the news and towards the newscaster, as the voices of Glenn Beck, Bill O’Reilly, Mike Huckabee, Rachel Maddow, Keith Olbermann, Lou Dobbs, and many others work to define a particular station’s unique image. The assumption underlying this trend is that news on its own is not enough to attract viewers; therefore, networks compensate for the dull news with flamboyant hosts (and extreme guests) who do extended opinion shows on the events of the day.

The conundrum is that as one network becomes more entertaining, the others have to scramble to catch up if they want to avoid being left in the dust.  So far, the three major networks have all done their share to stay competitive, but what has been left in the dust is the news they were originally intended to report.

A recent study done by the WorldPublicOpinion.org found that, while there is a significant number of misinformed viewers of all cable news outlets, FoxNews viewers are the most likely to be misinformed about objective facts in current affairs. This may come as no surprise however, as the industry incentives to sensationalize have, for example, frequently led FoxNews’ primetime pundit Glenn Beck to turn world news into entertaining puppet shows for his audiences to enjoy. And puppet shows are not even the end of the story. Some viewers have even turned exclusively to Comedy Central’s Colbert Report or The Daily Show for their portion of the day’s news.

For cable news, the race to entertain viewers has led to a race to the bottom in factual reporting. In order for a network to be competitive, it has to have its own brand of radical anchors that cater to a specific and ever-more partisan audience. The result has been the creation of a perpetually polarized atmosphere and an uneducated viewership. Only time will tell if the demand for entertainment news programs will continue or if viewers will become disillusioned and seek alternative or additional sources for news, hundreds of which are already available online.

Should responsible regulators follow the letter or the spirit of the law?

We typically expect ethical companies to follow not only the letter of the law, but also the spirit of the law. And in some cases, we would say that they should follow the spirit of the law rather than the letter. For example, if your washing machine breaks the day after the 3-year warrantee expires, you might think that an ethical – or even just reasonable – appliance manufacturer would nevertheless fix it for free.

By the same token, shouldn’t we expect responsible regulators and other government officials to respect the spirit of the law as much as the letter – and perhaps even to let the spirit override the letter some times?

Test your intuitions on the following case.

The Medicines Company engaged in a 9-year legal battle with the FDA and the United States Patent and Trademark Office, on whether it will be allowed to extend the patent on its blood thinner drug Angiomax until September 2014. The legal battle stemmed from the failure of the company to file its application for renewal within the 60 days allotted.

“The Medicines Company, based in Parsippany, N.J., learned of Angiomax’s approval by fax from the F.D.A. at 6:17 p.m. on Dec. 15, 2000, a Friday. It applied for the patent extension on Feb. 14, 2001. That is either 61 or 62 days after the approval, depending on whether the approval date itself is counted.”

Medicines Company contended that since the original fax was sent after 5pm the clock should not have started until the next business day allowing them to fit the law. The company pointed to the fact that the FDA marks anything received by their office after 5pm as received on the next business day. This administrative mistake could have cost the company over a billion dollars, and given its small size (with only one other drug on the market) marked the end of the company.

Big picture here isn’t just about one company’s struggle against the patent office and FDA, it is about the role of regulators in the pharmaceutical industry and the spirit of the law. Do we want our regulators to be inflexible in enforcing written laws or would we prefer some discretion allowed by administrators? Should they look to the spirit of the law, and not merely to its letter?

Sometimes the courts say, Yes. After 9 years of fighting and over $4 million spent on lawyers and lobbyists, Medicines Company won their legal battle.