Legal Commentary

I had hoped for more light than heat given the large number of legal bloggers writing about the proposed boycott of the AALS meeting.  (For the links, see here and here.)  I'm not sure I got it.  I certainly appreciated my co-blogger Rick's questions, and there were a few good posts here and there, plus Brian's tongue-in-cheek view that any reason to boycott the AALS annual meeting is a good one.  (That view is not far off from one offered on the Feminist Law Blog, and hinted at elsewhere: that as long as the boycott is tied to labor unrest, the labor unrest itself is reason enough.)  But I was still pretty disappointed. 

On the critical side, although Steve Bainbridge has been very active on this issue and makes some excellent points, I find his open letter to the AALS far too fervid.  First, the line, "What you may not realize is that [the boycott] is the subject of widespread and, in many cases, highly critical debate in the law school blog community" demonstrates . . . what?  With all due respect to myself and my co-law-bloggers, that's not reason enough to cross the street, let alone to pay serious attention; I mean, we also have vicious debates about the law and economics of the Sith Wars.  Second, although a boycott of course "punish[es] the owner of the hotel for having exercised his constitutional free speech rights," I see nothing wrong as such with doing so; we could as easily replace "punish[es]" with "responds to."

If the critics have been too heated, the proponents of a boycott have frankly not come anywhere near justifying their position. 

Not that they necessarily need to: they could try to win by force of numbers or stubbornness.  But if they hope to persuade others that a boycott is either necessary or advisable, they haven't come close.  The letter from the Legal Writing Institute arguing for a boycott says little more than that the LWI has a non-discrimination policy, and that "sponsor[ing] any event which would be held at a hotel owned by Mr. Manchester" would be wrong because "to spend LWI funds on such an event would be a direct violation of LWI's non-discrimination policy."  If the LWI wants to argue that doing so would be an indirect violation of LWI's policy, it is welcome to do so.  But calling it a "direct" violation doesn't make it so.  Similarly, Louis Sirico of the LWI has said, "It's a matter of principle . . . . We just don't believe in this kind of discrimination."  That statement is equally unhelpful, since it hardly identifies the principle at issue.  As others have noted, the hotel itself does not discriminate, to the best of anyone's knowledge.  LWI could have argued that even indirect discrimination is the proper subject of a boycott; doing so would have been far more logically consistent, although of course if would have lacked rhetorical punch and cost the Institutue a good deal of support.  But to say that holding at an event at the hotel constitutes a direct violation of the non-discrimination policy is either simply wrong or, if taken seriously, gives rise to all the what-if questions that people have since asked about the policy, and makes clear just how untenable the LWI's position is.

Like Eugene and other writers on the subject, I do not think boycotts are per se improper, but I am generally leery of them.  A student of mine put it nicely yesterday in talking to me about these issues: What happened, he asked, to simply disagreeing with others and trying to persuade them, rather than taking out the economic cudgels every time?  Isn't persuasion supposed to be the coin of the realm in a pluralistic society subject to all sorts of intractable disagreements?  I don't want to take this argument too far: If I want a fuel-efficient car, for instance, it makes sense for me to use my economic purchasing power accordingly.  And like others, I sometimes use my economic power in more purposive and political ways than that.  But my starting assumption is that others are allowed to live and thrive, even with my dollars in their pocket and vice versa, while both of us vocally and heatedly disagree on the issues of the day.

I think the issue is best examined by breaking it down into three categories of potential boycotting parties.  Individuals are generally free to use their economic power as they wish, although I have already suggested that I think we should generally be reluctant to do so too broadly.  Groups are in a somewhat different position.  There is nothing inherently illegitimate about a group using its economic power for particular purposes because a simple majority of the group decide to do so.  But we should also be conscious and respectful of the fact that a large minority of the group may disagree, and reluctant to use the majority's power too readily in such circumstances.  That is especially true where the group is constituted for purposes that are rather far afield from the subject of the decision -- in this case, for example, where the reasons that people join the LWI or the AALS are rather distant from the subject of the proposed boycott.

That brings us to the question of specialized groups.  The AALS and the LWI are academic groups, and as Bainbridge and others have written, their aims are and should be primarily academic rather than political.  They should thus be particularly reluctant to use their power to achieve aims other than their academic aims, especially when a substantial minority or even a silent majority of the group believe that the boycott or other decision has little to do with the animating purposes of the group.  That reasoning may exclude SALT, which for better or worse is a group of academics devoted to the achievement of political goals; but it does not justify the AALS or the LWI participating in or advocating a boycott.  Even if some number of its members individually would like to see a boycott take place, I would think that the leaders of those organizations, who are charged with seeing that those groups carry out their actual missions, have an obligation to nip any such proposals in the bud.  That the LWI leadership is in fact out in front on this one is disappointing; I would hope the AALS leadership would do its duty and offer a vocal and negative response to the LWI's complaint.

None of this is meant to disagree with the individual desire and right of any LWI or AALS members to use their economic purchasing power as they see fit, although I am not convinced this situation demands it.  But, to return to Stanley Fish's book, which I mentioned last week, it is the job of academic entities to do their job, and to refrain from doing things which aren't their job.  The proposed boycott strikes me as a clear example of something that is simply beyond the purview of an academic organization that hews to fairly traditional views about the proper sphere of academic concerns.

As a footnote to that conclusion, one may ask: What about the non-discrimination policy itself?  Is that also beyond the purview of the LWI or the AALS?  I think not.  I think it can be perfectly consistent with traditional academic aims, which value the search for truth and the amassing of academic expertise above all else, to say that education, and educational opportunitites, should be open to anyone who can meet the standards of the educational institution, regardless of the individual's status.  But to go from there to the view that it violates such policies for any money to flow to others who take a different view on that position in very different contexts is quite a stretch.  For all I know, the hotel owner in question, whatever he thinks of gay marriage, also thinks that university education should be open to everyone, and for that matter that his hotels should be open to everyone.  Although I can understand that some individuals might not want to subsidize this view, that doesn't mean that it in any way constitutes a core violation of an academically relevant non-discrimination policy.