Illicit Cultural Property: On Polite Discourse

Apr 8, 2010

On Polite Discourse

Yesterday I posted a link and an abstract of a recent student article, Cultural Pragmatism: A New Approach to the International Movement of Antiquities, 95 Iowa L. Rev 667 (2010). I see that the paper has drawn the interest of David Gill, who has offered a response to some of Hoffman's arguments as he indicated below in the comments. I'd like to temper some of the aggressive criticism of the paper (and Matthew, I can't find your email address on the Iowa website, so drop me a line if you would).

When I promote these pieces, I am promoting the field of study, and letting you all know something new has been written. This is a student paper, and though we might be critical of some of his assertions, we should also be respectful. At least that is how I approach the work of others—particularly student writers.

Hoffman certainly makes some mistakes, and one of the common mistakes legal writers fall into is they can often write elegantly, but fail to conduct enough background research into an area before jumping in. This piece might be a good example of that in parts, but I think the student here is also extending a line of argument espoused by writers like John Merryman, and now Jim Cuno that some will find distasteful. I didn't get to comment on a draft of the piece, I've never met the student, nor read his paper before yesterday. If I had I probably would have advised him to make a few changes.

I appreciate this can be an emotive issue, but when you beat up on a student writer, and fail to extend professionalism to a newcomer to the field, you not only diminish your own arguments, but the field as well.

I think he is on to an interesting argument when he argues for a tiered approach, in the same way Japan treats objects removed from Japan. Japan would seem to lack sufficient regulation on the market end, as Gill points out with respect to the Miho museum. Yet how do these returns actually affect the protection of sites, that is the question I think Hoffman could have addressed, and perhaps others will take up the argument and correct any errors or admissions they see in his piece—that's what scholarship is right?

For those of you who may not know, the Iowa Law Review is a well-respected legal journal, and an article dealing with this issue offers at the very least an opportunity to raise the profile of this issue. A common practice in American legal publications is to publish a few student articles in each issue. These are commonly referred to as "notes" or "comments", as I indicated in the original title below. I'm happy to post cites and links to anybody's serious writing on the topic, irrespective of viewpoint. I'll also continue to treat these writers with respect even when I disagree with their assertions. I would hope others could do the same.

9 comments:

Alexander Bauer said...: Hi Derek:

I have not read the article fully, but I will say that as with David and Paul Barford, it did not immediately strike me as presenting something very new, and is instead locked into the "cultural nationalism"-"cultural internationalism" framework (and I should know, since I've fallen into the same trap myself many times). While a student law review article cannot really be blamed for not covering the quite extensive non-legal literature on the subject, it does raise some very important problems with the whole law review publishing process itself, which is even more discipline-inwards than other academic genres and is more focused on getting the citation right than the content.

In addition, I wonder whether there is also a certain dismissiveness toward outdated legal articles, because the truth is, while Hoffman cites Bator in a couple of places, he seems not really aware of the substance of Bator's actual argument, which in many ways his repeats. Bator--whose 1981 essay would very well be described as "pragmatist"--clearly argues for adopting an approach like Japan's or England's, in which a limited number or class of objects should be retained against export, while allowing others to move freely.; 8:52 AM
John Muccigrosso said...: I'm a classical archaeologist who saw this on David Gill's blog.

To be honest, I'm now confused about the nature of this paper, and about the criticism of Gill's response:

1. Is this a student paper (which I would normally understand as a paper written by a student for a class), or is it a peer-reviewed, published article (which happens to have been written by a student)? I see that the journal is for students to publish in, but it also calls itself a "scholarly legal journal." They also talk about reviewing articles, but I'm not sure whether that means anonymous peer review or something else. In any case, from your comments and the ILR's own words, I take it that this is a piece of scholarship to be taken seriously and engaged with.

2. In that light, what exactly is an aggressive review? Gill treats the article seriously, and finds problems with it. His comments are respectful, professional and backed up by citations to relevant work. In what way is he "beating up" on the author?; 8:54 AM
Unknown said...: John, thanks for the comments and I'll try to answer your questions. This piece was not peer-reviewed, and though published, it should be accorded less credibility than a proper article.

Of course each discipline and means of publication has its own strengths and weaknesses. The practice in American Legal publications is confusing to most other disciplines. These journals are student-run and student-edited. They often produce good work, but most often this good work comes in the form of aggressively checking for accuracy in footnotes, citation, etc. This works well for the examination of many legal principles, but may fall short when writers try to tackle a theoretical or interdisciplinary piece.

These journals most often would not be able to offer substantive critiques, such that they can account for gaps in the writer's use of relevant sources. As a consequence, I think Alex's criticisms of the law review publishing process are right on point, and perhaps some of the criticism of this author may be unfair.

Student writers can often fall into the trap of not accounting for work in the field. These student authors rely often on two large (and expensive) electronic databases—Lexis and Westlaw—which do not often carry a lot of the interdisciplinary work David Gill has referenced. That is why I place everything I write on SSRN, and encourage others to do the same so we can assure ease of access to these ideas.

Often these student writers have faculty advisers at their school, who may assist them and point out gaps and flaws. I don't know if this student had that opportunity, but I'm happy to read and offer critiques of any student's work who sends it along. This Cultural nationalism/internationalism argument has traditionally been a very popular topic for student writers; and some do a better job of examining it than others. I guess my quibble with David was expecting too much of a student author, given what I know about a sometimes-flawed publishing process. But at this point this all may be much ado about nothing. At the very least, it should be encouraging that these ideas are being examined, even if some of the analysis is flawed. Not every law school even teaches a course in cultural heritage law, students love this topic, and are passionate about it, and I think we should encourage that interest.; 9:50 AM
Andy Adler said...: Derek -- I absolutely agree with your comments here. The only thing I would add is that, in defense of this particular student author, he did appear to go well beyond the Westlaw/Lexis databases, which is commendable and, as you point out, unusual for student notes. It might also be worth observing here that, for whatever reason, there seems to be a disproportionately high number of student notes addressing antiquities issues.

Alex -- I agree with your substantive comment; it seems that the note is essentially reprising Bator's central argument, but without recognizing it.; 10:51 AM
Anonymous said...: I find it bizarre when people that don't even bother to publish in academic journals can criticize the arguments of those that do. (I'm speaking generally in this particular instance, since the criticism of Hoffman came from multiple directions.) It's like McCarthyism, though -- if you don't like what someone says, criticize them so thoroughly that they'll be afraid to speak in the future. So much for meaningful (or polite) discourse. And you were right about the tone of the criticism; I was taken aback as well.; 6:42 PM
Alexander Bauer said...: Anonymous:

I agree that constructive discourse is always preferable, but I am not sure if any of the people criticizing Hoffman (and I don't think that the critiques are that unreasonable or even "thorough," as you say) fall into the camp of people who "don't bother to publish." For his part, David Gill publishes quite a lot.

My own criticisms were not so much aimed at Mr. Hoffman as they were a criticism of the culture and rules of law reviews, which don't do a particularly good job of producing consistently solid articles (especially on interdisciplinary topics, as Derek says). In the case of a peer-reviewed journal, a paper such as Hoffman's, well written and thorough as it was, would have received thorough comments and criticism (such as David's) as part of the review process. This would have allowed Mr. Hoffman to get those comments and revise the draft accordingly, making it stronger and a better contribution to the literature. This is the way the process should work.

I hardly think, however, that criticizing someone's paper is anything like "McCarthyism". It's called academia (which can be brutal in it's own way, but hey, you'd better get ready for it). The first paper I ever published (not on cultural property) was at odds with a bunch of senior scholars in the field in which I worked. One of these scholars assigned a student of his to write a point-by-point rebuttal of my paper in a major journal, which was published shortly after. I was not in the least upset, but flattered that my paper was worth the attention.; 10:49 PM
Anonymous said...: AB, I think the tone of your comments were fine, and you do a lot of work with the publishing. It's more than I'm sick of seeing on several blogs so many hateful posts that target people personally per their thoughts on archaeology or collecting or repatriation, etc. Some go as far as to feature photos of their opponent's houses and make comments about their wives, etc., and *that's* McCarthyism. When I saw the reviews of Hoffman's piece, all I could think is that here's this poor kid trying to write something potentially helpful, and these people are jumping down his throat to call him incompetent because he's suggesting a middle ground. Disagree with what he says, even his academic methodology, but when its part of a larger program to embarrass or even harass those who disagree with you, it's fairly disgusting.; 2:33 PM
Alexander Bauer said...: True enough. Blogs do have a tendency more than other venues to encourage venal responses, probably because of the sense of anonymity it provides. Given the usually vituperative tone of in-person debates and the published literature regarding antiquities issues, I suppose it's no surprise that its even worse online. Sad, though.; 7:13 PM
Nicholas Merkelson said...: Hi Derek--

I wholeheartedly agree with your points above and commend you for referring your readers to Mr. Hoffman's article.

Student writers should not to be held to the same rigorous academic standards as experts in the field who are able to rely on their years of experience and discourse and who clearly are more well-versed at stating their opinions in writing. Students are, quite frankly, lacking in the proper vocabulary and analytical acumen which they will ultimately acquire over the course of their studies. To fault them for not having these tools is discouraging and, yes, unfair; such criticism though must motivate them to acquire them sooner.

Also, students should not be decried as poor researchers because they are unfamiliar with all of the research and articles available to them. If anything, student writing can be considered youthful and vibrant for NOT citing and re-citing the articles that certain academics have tussled with for years. In time, students will become better acquainted with these sources, and until then it is admirable that they can be so confident as to publish their writing in a journal fully aware that they are commenting on the work of eminent scholars in their field.

Lastly, as a student and blogger myself, I appreciate your productive use of the Blogosphere to bring my generation of scholars to the academic table. I have recently started a blog, Culture in Peril (www.cultureinperil.blogspot.com), and I fully advertise it as my own subjective writing. It is not perfect, I'm aware, but I do crave feedback that is respectful of my personal opinion and acknowledges the unique viewpoints I might have. At this point, I rely on folks like you to contribute to my discussions (which doesn't always mean agree with) and vindicate me of any fault that is unnecessarily laid on me for my student authorship.

Keep up the good work.

All the best,
Nicholas Merkelson
www.cultureinperil.blogspot.com; 9:04 AM

Illicit Cultural Property

Apr 8, 2010

On Polite Discourse

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