Funding of Chicago-Kent Symposium on the Second Amendment: As a former member of the Chicago-Kent faculty, I thought I would add some background on the issues raised by David Hardy (and commented on here by Eugene) concerning the funding of the symposium on the Second Amendment that appeared in the Chicago-Kent Law Review.

I was one of the faculty members instrumental in converting the Chicago-Kent Law Review from a normal law review—in a short essay I dubbed it a "moot law review"—into an "all-symposium" law review with faculty editors. In addition to eschewing submitted articles in favor of soliciting writings to be written for symposia, each issue would have a faculty editor whose principal responsibilities were proposing a topic, inviting the authors, writing a foreword, and sheparding the writing of the papers. Another innovation was that both the faculty editors and the contributing authors were paid an honorarium. In the beginning all faculty editors were to be outside the Chicago-Kent faculty, but eventually this policy was relaxed and some editors were in house. I myself organized two symposium issues. The first was on the Ninth Amendment; the second (edited with Jules Coleman) was on "Post-Chicago Law and Economics." As a result of these reforms, the Chicago-Kent Law Review went from a journal that no one ever read to one of the top-cited scholarly journals in the country.

Given this institutional arrangement, there is nothing untoward about an outside faculty editor, like Professor Carl Bogus, being paid to organize a symposium issue in which he and the authors are paid honoraria.

Of course, all honoraria were originally paid by the law school, not by a foundation, but again I see no problem with this practice, so long as the law school does not cede to the foundation editorial control of the issue that is published in the law school's name.

When I saw an announcement for the Second Amendment symposium funded by the Joyce Foundation, what immediately struck me was the completely one-sided composition of the contributors. So I contacted a former colleague of mine at Chicago-Kent and offered to participate as a commentator, provided I was given the same remuneration as other presenters. I also offered to recruit some other scholars who would represent some diversity of opinion. My erstwhile colleague said this was not possible. The first reason he offered for this was the supposed lack of civility between pro- and anti-individual rights scholars. When I objected to this reason, it became clear that this was not the real rationale. Later, Carl Bogus told me (as he has subsequently written elsewhere) that the lack of balance was intentional and meant to counter the overwhelming dominance of the individual rights position. The idea, he said, was to work out the alternative paradigm with scholars who were dissenters from the individual rights position and provide fresh thinking:

We felt that, for a variety of reasons, the collective rights model was under represented in the debate, and wanted to give scholars an opportunity to enhance or further illuminate the collective rights position. Sometimes a more balanced debate is best served by an unbalanced symposium. I did not, therefore, invite anyone who I knew subscribed to the individual rights model.

This saga raises a number of questions that scholars ought to ponder:

Is accepting honoraria for writing papers unethical? For obvious reasons, I strongly reject this position. Legal scholars are entitled as anyone else to be paid for their work, and to choose to participate in a program, which they might otherwise decline to do were they not paid.

Is accepting honoraria from a foundation, like the Joyce Foundation, that will support only one side of an issue unethical? So long as one does not change one's views to conform to the funding source's preferences, I do not think so (though I do think one should disclose one's funding sources to allow readers to evaluate for themselves whatever impact it may have on one's analysis). I do not see why foundations who wish to advance a particular view cannot ethically support the research of those who otherwise agree with its agenda. Ultimately, the soundness of one's scholarship should depend on the reasons and evidence one puts forth, not the source of any financial support one may have received. I think this is true even if the honoraria induced a scholar to write about an issue he or she would not otherwise have done, which I think probably applies to a number of contributors to the Second Amendment symposium. I feel the same way about campaign contributions. Contributing money to the campaign of politicians with whom one agrees does not corrupt the politician, unless he or she was already corrupt. Michael Bellesiles, who was paid to contribute to the Chicago-Kent symposium did not fabricate his evidence because the Joyce Foundation was paying him. He was a corrupt scholar before and after this payment was made.

Was Chicago-Kent at Fault for Publishing This Symposium? Here I think the answer is probably yes. Chicago-Kent, and the journal it publishes, purports to be an academic institution committed to the pursuit of truth. It is not an advocacy group, and it publishes an academic law review that benefits from the perception that it is not an advocacy journal. By mounting a deliberately one-sided symposia it did a disservice to its readers, its academic community, and most especially to its students who were free to attend what was a deliberately one-sided conference.

I also think that accepting funds from a foundation that limits the participants to those holding a particular view is in conflict with its mission as an academic institution. If the Joyce Foundation limited participation to one side of this academic dispute, or if Chicago-Kent did not bother to know that this money could only be spent to fund one side of the dispute, then it made a serious mistake. There are indications that the Joyce Foundation refuses to have any dissenting voices included in its programs. Indeed, it is reported to have protested the appearance at Chicago-Kent of a pro-individual rights speaker within a few weeks of its symposium. The Joyce Foundation also supports the Second Amendment Research Center at Ohio State. When I asked its director, Saul Cornell, in an email exchange if any participants in its academic programs could advocate the individual rights position, he responded that he would obtain separate funding to permit that to happen. I took that as an indication that Joyce does put strings on its funding. (David Hardy quotes and links to the mission statement of the Joyce Foundation here.)

While there is nothing unethical about an advocacy group like the Joyce Foundation running one-sided programs—it is done all the time by groups on all sides of every issue—I think this sort of advocacy funding is inconsistent with the scholarly mission of an academic institution like Chicago-Kent or Ohio State. Imagine the effect on the institution's reputation if not only the funding, but the implicit or explicit strings were disclosed. This is an indication that accepting funding with substantive strings attached is improper for an academic institution.

To be clear, I do not think that the source of funding, and the bias of the resulting program makes it unethical for a scholar to accept an honorarium from an institution that has compromised its academic integrity in this way. Nor does one-sided funding necessarily compromise the integrity of a scholar's work-product, which should be judged on the merits of its arguments and evidence. Again, there is nothing wrong with seeking research funding from sources who agree with your approach, or a foundation seeking to support and encourage scholara who are sympathetic to its approach.

But there is a big difference between the work product of an individual scholar, and the collective work product represented by a symposium sponsored by an academic institution like Chicago-Kent. This issue not only is weaker intellectually than it might have been, but it falsely suggests a uniformity of opinion on the subject it examines. Since the symposium was open to Chicago-Kent students, I wonder if they were informed that the program was deliberately designed to be one-sided. Aren't students (or readers of the law review) entitled to know that they are being provided a deliberately biased stream of information? Here I think the fault and discredit lies entirely with the academic institution.

What is Value of Diversity in an Academic Institution? I think the Second Amendment symposium issue suffers not from its funding, but from the one-sided intellectual process that produced it, regardless of whether it resulted from foundation strings, or simply the strategy of its organizers. Ultimately, with no knowledgeable dissenters at its conference pointing out inconvenient evidence—of which there is a great deal—the arguments it presents are necessarily less informed and weaker than they would otherwise be. Certainly they are less informed than an academic institution like Chicago-Kent would want it to be. I believe this was the case with this issue of the Chicago-Kent Law Review, though I have not read it in its entirety. In contrast, when I organized a symposium on the Ninth Amendment, I was careful to invite scholars who would be expected to (and did) take widely divergent views on its meaning and relevance.

Indeed, the Federalist Society—which does not purport to be anything other than a viewpoint-driven organization—consistently strives for diversity on its programs. Its conferences routinely feature divergent opinions on each panel. When inviting speakers to campus, students are encouraged to arrange debates or solicit critical commentators from their own faculties. Those participants in its programs who have different views are treated cordially and respectfully, sometimes to their great surprise. The programs that result from this diversity are far more interesting, and of better quality, because of this planned diversity. An academic institution like Chicago-Kent should strive to do no less.

Saul Cornell Responds: —Ohio State History Professor Saul Cornell, who founded and heads the Second Amendment Research Center at Ohio State sent me the following response to my blog post on the Chicago-Kent symposium on the Second Amendment being funded by the Joyce Foundation:

I think you misinterpreted my earlier e-mail about my center. The Center includes all points of view on its web site. You will find that you and Eugene are both listed in the database on gun scholars.(I haven not listed Lott or Bellesiles for obvious reasons.) You will also note from my post on your blog via Eugene that the Fordham symposium included scholars from a number of approaches and viewpoints and that several individual rights people were invited. My comment to you in e-mail (don't you think you ought to ask permission before you blog?) had to do with funding new research. I think there is a difference between an obligation to present a full range of views and actually allocating limited research funds to encourage new research. Given that the gun lobby has plenty of money and places like CATO are strongly gun rights it seems a bit unfair to ask Joyce to fund your point of view. I would be happy to help the NRA fund decent research on the Second Amendment but they don't seem that interested in forking over any money. I don't see any evidence that CATO has been nearly as fair as I have and I don't see anyone on your blog who represents the collective rights view or the new civic rights paradigm. Perhaps you can explain why the fairness doctrine only applies to some folks, but not others? Do you have a coherent theory about how you approach this stuff? You may recall that Glenn's Standard Model issue did not have anyone from the collective rights point of view.

Because I think Saul largely missed the point of my original post, let me summarize:

(1) The main issue I addressed was denying that there was anything untoward about the Chicago-Kent symposium (a) bringing in an outside editor, or (b) paying an honoraria to the editor and contributors. It is standard practice there to do both.

(2) The secondary issue I addressed was the propriety of scholars accepting honoraria in general, and Joyce Foundation money in particular, to write about subjects they might other wise not have. My position was that, so long as they did not change their views to conform to the wishes of the donors—and I do not believe that any of these authors did so—then I said I saw nothing wrong with this—but the funding should probably be disclosed (as it was).

(3) I did fault Chicago-Kent for holding a deliberately one-sided event funded by a foundation that will only pay for one side to be heard--and then publishing the resulting papers in an entirely one-sided issue of its law review. I maintain that this runs counter to its mission as an academic institution.

(4) To substantiate the fact that Joyce does attach strings to its grants I related what was told to me by Saul Cornell in an email exchange. In my blog post I summarized this as follows:

When I asked its director, Saul Cornell, in an email exchange if any participants in its academic programs could advocate the individual rights position, he responded that he would obtain separate funding to permit that to happen. I took that as an indication that Joyce does put strings on its funding.

I did not quote the original email as I did not have permission from Saul to do so, but he has given permission now. As he thinks I have misunderstood him, here is the pertinent part of what he wrote:

Conferences organized for the Center will follow my Constitutional Commentary model, not Chicago-Kent. As you may recall I included Bob Shalhope in that because he was the historian most closely associated with the IR point of view. Obviously Joyce does not want to put money into the hands of gun rights people (that does not seem unreasonable) so the funds for participation of those folks will have to come from somewhere else.

So here is my response to Saul:

(1) I never mentioned the Fordham Law Review symposium. I have no background information to impart about its organization or funding. As I am not familiar with its composition--apart from what Saul wrote in his email to Eugene--I made no criticism of it earlier and make none now.

(2) My principal purpose for referring to the substance of Saul's email conversation with me was to substantiate that Joyce does indeed restrict its funding to persons who agree with its position on gun control, which is what I contend made it improper for Chicago-Kent to run a conference with this funding. I could imagine a conference half funded by Joyce and half by, say, the NRA, which would result in a balanced and academically respectable program. (Query: would Joyce have ever agreed to this? I seriously doubt it.)

(3) I also suggested, though in passing, that it is questionable for Ohio State to set up a "Second Amendment Research Center," largely if not exclusively, using funds that come from a foundation that will only fund one side of a legitimate academic debate. Saul's reply notwithstanding, I still believe this to be the case, but his situation is more complicated than that of Chicago-Kent, so let me address it further.

(4) Chicago-Kent took money from a foundation that will only fund one side of a legitimate academic debate and then held a conference to which its students were invited and published a law review issue that was entirely one sided. To me, this is clearly inconsistent with its mission as an academic institution. (I would have to know more than I do about the 1995 Tennessee symposium organized by Glenn Reynolds to know whether it was similar in this regard to what Chicago-Kent did. I do know that I wrote the Foreword for that Symposium (available here) and received no honorarium. Nor did I attend any live conference that may have been paid for by an outside source. The issue discloses no outside funding. But even if Tennessee somehow acted improperly, two wrongs do not make a right.)

In contrast, Ohio State set up an ongoing center largely, perhaps exclusively, funded by money that can only be used to pay for one side of an academic debate. If Joyce is the exclusive or main source of funding, I think this compromises the academic integrity of Ohio State. If the center also had a comparable amount of money that could be used to fund other approaches, this would complicate the issue. On the one hand, it would enable it to have somewhat balanced programs—as Saul says he strives to do. On the other hand, it would still make Ohio State financially dependent on satisfying the view-point position of Joyce in a way that the one-time conference I hypothesized above would not. If Joyce objects to the content of what the Center does, for example, by including divergent voices, it could withdraw its substantial funding. Because Ohio State would knows this, this would compromise its academic mission.

Now it is possible that Joyce made a substantial one-time grant—as opposed to providing ongoing funding—with no strings. This would be quite different. But I take it from Saul's original email that Joyce's funding is ongoing AND that Joyce will only fund scholarship with which it agrees. It is this arrangement and constraint that compromises the academic integrity of Ohio State.

(5) Saul asked in his reply: "Given that the gun lobby has plenty of money and places like CATO are strongly gun rights it seems a bit unfair to ask Joyce to fund your point of view." I do not expect Joyce to fund any point of view with which they disagree. It is not Joyce we are talking about, it is Chicago-Kent and Ohio State. Nor, to reiterate, do I have any problem with an individual scholar like Saul who agrees with Joyce accepting funding to support his or her academic research, provided the funding is disclosed. But Ohio State, like Chicago-Kent, is an academic institution, unlike Cato, or the Federalist Society. (I raised the Federalist Society because, even though it is not an academic institution, its programs have more balance than did Chicago-Kent's. (I did not compare the Fordham Law Review symposium to the Federalist Society—indeed, I did not mention that symposium at all in my post.)

Let me clarify this by posing the following question: Why did Joyce not organize its own conference, law review issue, or Second Amendment Research Center? The answer is plain: it wants its views to enjoy the academic respectability imparted upon it by the imprimatur of Chicago-Kent and Ohio State. It is that institutional imprimatur that enabled the Ninth Circuit to rely so heavily on articles published in the Chicago-Kent Law Review in his opinion in Silveira v. Lockyer. (BTW, the published opinion had to be modified later to remove its reliance on the discredited work of Michael Bellesiles.) This is what Joyce is buying from Chicago-Kent and Ohio State. This is what it is improper of these institutions to sell.

Unlike the Joyce Foundation, Cato has its own Center for Constitutional (not Second Amendment) Studies, its own law review (The Cato Supreme Court Review) and organizes many conferences and publishes many books. Cato's work product will inevitably be discounted in a way that a center at Ohio State would not be (unless it became widely known that Ohio State was indistinguishable from the Joyce Foundation which would defeat the purposes of both Joyce and OSU). This is the distinction that is of utmost importance.

Consider this analogy: Suppose Boston University established a "Second Amendment Research Center" funded wholly or principally by the NRA, which would only pay for individual rights scholarship. How would or should observers react to the work product of this center? Should it receive any greater imprimatur of academic respectability than a center within the NRA itself? Of course, we know why the NRA would want to establish such a center (who could blame it?), but why should BU want to establish so one-sided a center except deliberately to take sides in an academic dispute— that also has or will be before the courts?

If Saul truly cannot distinguish between a "research center" at a university (and a public one, no less) and a think tank like Cato, an advocacy group like the NRA or Joyce Foundation, or a blog like the Volokh Conspiracy, then there is more trouble with the Second Amendment Research Center than the principal source of its funding. But the fact that he says he would include diverse opinions in his programs (paid for somehow by other funds) and tried—albeit unsuccessfully—to include divergent views in the Fordham Law Review symposium suggests that he can tell the difference.

I conclude by offering the same thought experiment I did before: Would Ohio State want it to be known that all or most of the funding for its Center came from a foundation that would only fund a particular viewpoint? I think not. Or would OSU (or Joyce) want the center to be called "The Collective Rights Research Center"? It is to Saul's credit that he tries to include other voices by tapping other sources of funding. But that does not absolve Ohio State of the problem that it has sold its name to one side of an academic and legal debate, if that is indeed what it did.

I have been enjoying the sunny warm weather here in Tucson following my talk at University of Arizona yesterday. Thanks to all the students and faculty who attended. In the meantime, Saul Cornell sent this message in response to my last post about the Joyce Foundation funding of the Second Amendment Research Center at OSU (which he gave me permission to post here):

Joyce did pay for the individual rights people who attended the Fordham conference! As I explained in my last e-mail the first e-mail exchange we had is no longer germane. After our exchange Joyce and I had come to an agreement that the Center would not adopt an official point of view about the Second Amendment. Joyce was fine with the idea of conferences that would have multiple points of view--The issue about funding that seemes to bother you was a question about how to use my limited resources for any new original research that my Center might undertake. When we had our first e-mail exchange I was thinking mostly about short term research fellowship support for people to come to my Center or giving incentives for people to do new research on the topic. Given the limited nature of my funding I abandoned that model. Instead, I have chosen to put my money into the web site and conferences. The web site does include the IR point of view as did Fordham. Are we clear now?

Saul's message represents a positive development in this dialog. It is indeed clear now that Saul (and Joyce) accept the basic principle I argued for in my earlier posts: academic institutions like OSU have a different obligation to provide balance among legitimate viewpoints in an academic debate than do think tanks, advocacy groups, or blogs. Whether future programs sponsored by the Center at OSU are balanced beyond a token or two will be evident for all to see. I look forward to seeing seeing, and perhaps even participating in, its future conferences.