Thursday, April 15, 2010

Academia and the Law

Last night, I read about the strange case of Karin Calvo-Goller and Joseph Weiler. Calvo-Goller has filed a charge of "criminal libel" against Weiler for publishing a negative review of her book in the journal he edits. The case itself seems to be completely without merit and, as many others have pointed out, her legal action does much more to damage her reputation as an academic than any book review could. (The original review is available online, Weiler has written a detailed account (PDF), and the Times Higher Education Supplement has covered the story.) The story got me thinking about the relationship between legal and intellectual disputes.

As Weiler points out, the threat of legal action, if it is taken seriously, is likely to put a "chill" on academic criticism. The threat can be real (serious) either if academics are regularly successful in suing their peers over criticism of their work or because they are regularly able to inconvenience their peers with legal action (forcing them to argue the "case" in legal terms and even showing up in court.) Suppose I discover what I take to be an error in the published work of a peer and I note that error in a piece of my own writing. Suppose I am wrong about it. Can my peer sue me for defamation? After all, if others believed me, that would have a "negative" effect on the reputation of the scholar, wouldn't it?

If the court allowed that argument, critical discourse would probably disappear from the academy. As Steve Fuller has pointed out, free inquiry is essentially "the right to be wrong" (see page 11 of this PDF for a version of his argument). And there is a good reason that the charge of defamation should not be applied to academic discourse: academic readers (i.e., the people who read reviews of academic books) can be expected to be highly critical. That means that they will not form an opinion on the basis of a quick reading of a book review. Even if they do, their opinion will about the work in question, not its author.

I'm only just starting to think about this. (I don't have time to work through all the details this morning, but I think I'll continue this on Tuesday after looking into it some more.) The story immediately reminded me of the little twist in the Doris Kearns Goodwin plagiarism case a few years ago. It turned out that one reason that the problem had not been made public earlier is that the author of the plagiarized source had simply agreed to keep silent about it in exchange for a cash settlement. Timothy Noah (whose very sharp analysis of McTaggart's role in the affair is worth reading) used the occasion to propose a radical, but brilliant, solution to this problem: get academics to give up their right to sue other academics for copyright violation. I think a similar rule should apply to charges of libel: as an academic, you expose yourself to the criticism of your peers, at least when they express themselves in the academic journals. There is plenty of space in those pages to answer charges and settle matters of fact. But once you go to the courts in an attempt to settle a dispute with one of your academic peers, you have left the academic community. You have given up your academic credibility—which, sadly, is what I think Calvo-Goller has done in this case.

2 comments:

Jonathan said...

That review isn't even that bad. I've dished our much worse.

Thomas said...

I agree completely. Weiler is right to suggest that she's misunderstood the review in important ways. It may even be a language barrier. Sad, really.