Dr. Pavlov, Call Your Office

I don’t much keep up with the newest currents in contemporary psychology, so I have no idea whether Ivan Pavlov’s famous stimulus-response hypothesis is still considered valid. But I thought it worth a test, and I can indeed report that it still works like a charm with leftists—especially leftist readers of Power Line.

I was quite certain when I posted the item here two weeks ago announcing that I would be spending the next three years as an inmate at the University of California at Berkeley that an excitable leftist or two would blow a gasket. Stimulus-response! And I was not disappointed.

John Birke, a 1989 graduate of Berkeley’s law school, sacrificed several billable hours to write indignantly to the interim dean of Berkeley’s law school in protest, and also sent us a copy of his letter to our Feedback portal. I will spare you the whole of the three-page, single-spaced primal scream (though if anyone is a glutton, send us your email through our Feedback portal and I’ll email it to you), but I can’t resist a few highlights:

Dear Dean Murray:

I read with shock and disgust last week (August 24, 2016) on the website “Powerline” that Steven Hayward — who is not an attorney – will be “team teaching” a seminar with John Yoo on executive power and administrative lawmaking. As someone who is familiar with is work, my reaction is neither hyperbolic nor unexpected. And I am prepared to support in any forum what I say here below, even under penalty of perjury.

Hayward is and for about 12 years has been one of the principal contributors to Powerline, a right-wing extremist web blog. Hayward and Powerline receive substantial financial support and content from, and actively lobby other media outlets on behalf of, the Koch Brothers. Their connection to the Kochs is not even a secret.

Well, one reason this isn’t a “secret” is that it’s completely untrue (though I have visited once with Charles Koch in Wichita, and David Koch in New York; but also George Soros, who actually invited me to lunch at his New York office once, which may well make Mr. Birke’s head explode). The point is, Power Line receives no financial support from the Kochs, though I’m tempted to ask for some, just to feed Mr. Birke’s dyspepsia.

It’s really very difficult to pick out my favorite part of Birke’s letter, but if I had to settle on just one, I guess I’ll go with this:

Hayward and his colleagues traffic in right-wing paranoia, albeit with a degree of affected refinement that superficially distances them from blogs such as “The Drudge Report” and “Breitbart.”

Actually that’s one of the arguably more sane passages of the letter, but it had its desired effect by Mr. Birke, but also, surely to his chargin, by me, too. The Daily Californian jumped on his letter and did the predictable story last week:

Daily cal copy

Of course, the reporter jumped at my bait about offering students the option of writing a 25-page paper or being waterboarded, because what self-aware professor or student hasn’t ever made jokes about being “tortured” by the workload or classroom lectures before? But I was fairly certain this would work in perfect Pavlovian fashion, and I was not disappointed:

When asked about his reference to waterboarding, Hayward said those offended “need to get a sense humor.”

Berkeley Law declined to comment on the joke.

Jesse Choper, former dean of Berkeley Law and professor emeritus at the school, supports the appointment of a conservative lecturer in what he believes is a left-leaning field, saying that it’s an advantage to have a wide array of ideological political views expressed.

“It’s a joke,” Choper said. “Maybe it was a bad joke. I think you’re better off avoiding bad jokes.”

I actually have a lot of respect for Jesse Choper’s large body of scholarship even though he leans to the left, and to be fair he was caught by the reporter wanting a comment with no preparation for the story, but I herewith promise anyway that from now on I’ll only tell good jokes. But I guess I can’t borrow them from Seinfeld, who has said he won’t appear on college campuses any more for precisely this reason.

Another person who will be disappointed at my classes will be . . . Mr. Birke. For the record (and hopefully everyone will be able to check the classroom record next semester, as I hope to record my lectures and post them), my classroom method is strictly neutral. I never tell students about any of my books or articles, or about Power Line, or about any of my opinions on current subjects. And it’s quite amazing, in this age of the Internet, how many students don’t bother to check me out. For it inevitably happens every semester, at every place I’ve taught (Georgetown, Ashland, Pepperdine, and Colorado), that some time around the middle of the semester, two students (always two together, because they need to get their courage up) will come up to me after or outside of class and say, “Prof. Hayward—we can’t tell if you are a liberal or a conservative, a Republican or a Democrat.”

This question always tells me two things: first, that the students before me are too lazy to have tried Google (where they’d find Power Line—and many students have), but second, that I’m doing a reasonably decent job of presenting the issues and range of positions in a relatively fair and neutral fashion in the classroom, so the student can make up their own mind. By the way, when students tell ask me that question, I don’t tell them the answer, but suggest they should be able to figure it out.

To be sure, conservatives who teach political science, and especially the Constitution, will ask questions many conventional and liberal professors don’t any longer, or at least in a very different form. I have elsewhere (my forthcoming book actually), compared contemporary law school instruction in constitutional law to learning surgery without ever learning the Hippocratic Oath.

So, for example, I usually begin a multi-class segment of the course on the constitutional controversies of civil rights law with the following opening question:

Does the wrongness of racial discrimination depend on whether we source our soft drinks and cheese from another state? If the answer is ‘No,’ [spoiler alert: that’s the right answer] then why have we hung the constitutional legitimacy of so many aspects of civil rights law on the Commerce Clause?

I find this is a good way of starting from the beginning about the tangles of civil rights jurisprudence from the Civil War on. I submit that that question is not self-evidently a conservative set up, though I doubt many liberals approach the difficulties of civil rights law through this portal, having simply assumed that the decay of the Commerce Clause is simply not worth thinking about any longer, while resting comfortably in the warm embrace of the equal protection clause of the 14th Amendment as a primary backstop.

Mr. Birke thinks it important the fact that I’m not a lawyer, though I note that the Preamble of the Constitution does not begin “We the lawyers. . .,” but “We the people.” But for what it’s worth, my principal instructor on this subject in graduate school was the Pulitzer-prize winning (and liberal) constitutional historian Leonard Levy—also not a lawyer. You can read my fond obituary of Levy here, where I take the New York Times to task for being ungenerous to him. Among other things I had to say about Levy:

His small seminars and one-on-one tutorials could be compared to military boot camp: they were painful, demanding, terrifying, exhausting [I suppose I could have said “torturous”?]—and something that afterward you would never have wanted to miss. His loud, commanding voice, and his complete mastery of the subject, conveyed an air of authority that was never confused with dogmatism. In a Levy course, you weren’t just questioned; you were cross-examined. It was often not a pretty sight, but it made everyone better thinkers, writers, and scholars. . . His work and example will remain a model for thoughtful scholars so long as honesty still exists in the academy, and his many grateful students will never forget him.

Levy especially liked having conservative students in his classes, I’ll add, though pass over for now why, that he came to favor his conservative students over his conventional liberal ones.

Mr. Birke is welcome to sit in on any of my classes if he wishes (space permitting—there is a likelihood that my courses will be oversubscribed, thanks to Mr. Birke’s very helpful publicity assist). All that I ask is that he leave his spray bottle behind. From the Los Angeles Daily News:

Woodland Hills anti-smoking activist declared a nuisance, being evicted

By Susan Abram, staff writer

WOODLAND HILLS – A man who fought against secondhand smoke by spraying smokers with water as they lounged by a pool is being evicted from an apartment complex in Woodland Hills.

A Van Nuys Superior Court jury agreed on Tuesday that John Birke, who has lived with his wife and daughter at the Oakwood Apartments for nearly 20 years, caused a nuisance when he wet smokers with water two years ago using a spray bottle. . .

Birke, an attorney, said he will move from the complex, but he plans to appeal the decision.

I am, for what it’s worth, going to ban students from using laptops in my classes this year. I hope I don’t have to ban water bottles, too.