Friday, December 18, 2009

In Memory of Ed Baker

By Mike Dorf

Last week,University of Pennsylvania Law Professor C. Edwin Baker died unexpectedly at the age of 62.  The Penn website has a nice remembrance of Ed here, but I'd like to pay my own respects.

In Isaiah Berlin's dichotomy of hedgehogs and foxes, Ed will likely be remembered as a hedgehog for his one big, powerful idea: that freedom of speech is best justified in terms of autonomy of the individual (what Ed called the "liberty theory") rather than because of the marketplace of ideas to which it ostensibly contributes.  Like all great, big ideas, part of the appeal of Ed's liberty view of the First Amendment was the clarity with which he stated it.

Ed's 1978 article in the UCLA Law Review, Scope of the First Amendment Freedom of Speech retains as much power today as it held then--perhaps even more.  In an era of truthiness, it is hard to argue with Ed's critique of the marketplace of ideas, summed up in the Introduction:
Just as real-world conditions prevent the laissez-faire economic market--praised as a social means to facilitate optimal allocation and production of goods--from achieving the socially desired results, critics of the classic marketplace of ideas theory point to factors that prevent it from successfully facilitating the discovery of truth or generating proper social perspectives and decisions.  Because of monopoly control of the media, lack of access of disfavored or impoverished groups, techniques of behavior manipulation, irrational response to propaganda, and the nonexistence of value-free, objective truth, the marketplace of ideas fails to achieve the desired results.
Ed went on in the UCLA L Rev article to explain why the standard responses to the failure of the marketplace of ideas--various versions of "market-correcting" regulation--either relied on the same false assumptions as the marketplace metaphor itself or unduly subordinated liberty to equality.  Ed then developed his own account, which he assiduously advanced and defended for the next three decades.

Ed certainly deserves credit as a hedgehog for his liberty theory, but he was more than a hedgehog; he was also a fox--and a fox with a heart of gold at that.  If we do not feel the need to reduce the work of an original  and subtle thinker to an idea that fits on a bumper sticker, then we can see that for all of Ed's criticism of First Amendment doctrine rooted in the marketplace of ideas, he cared deeply about the contributions that First Amendment freedoms make to democracy.  For example, in recent years, he was working on and much concerned with the baleful effects of the disappearance of newspapers.

Nor was Ed simply a one-trick pony.  He had wide-ranging scholarly interests.  I last saw Ed at a conference on the Constitution and the Rule of Recognition at Penn in the spring of 2008.  He wasn't presenting a paper but simply joining our two-day discussions for the fun of it.  The "Rule of Recognition" is an idea pioneered by the late H.L.A. Hart to explain what distinguishes legal norms from social norms.  I needn't get into the details here but suffice it to say that Hart is generally regarded as the leading legal "positivist" of the last century.  Positivists believe in the possibility of describing the law without endorsing any moral propositions.  Positivism is typically contrasted with "natural law" theories, which hold either that in general or in particular legal systems the content of the law depends on some moral propositions.  That "in general or in particular legal systems" turns out to be important because in a posthumously published Postscript to his leading text, Hart said that his version of positivism--"soft positivism"--was consistent with the possibility that in some legal systems, the law could incorporate morality in its legal norms.  People interested in these fundamental jurisprudential questions sweat the fine distinctions here, which is why Ed's interventions at the conference were so arresting.  He said flatly that Hart's great contribution was to open a space for natural law--and he didn't mean the space to which Hart adverted in his Postscript.  In just a few minutes, Ed developed a plausible account of Hart as a thoroughgoing natural lawyer.  The committed positivists in the room were skeptical, but as a mere dilettante in jurisprudence myself, I was mesmerized.  Ed had that way of just showing you something completely familiar in a totally different light.

No doubt a great deal of Ed's persuasiveness in person was due to, well, his personality.  He was soft-spoken, with a twang in his voice that suggested a kind of just-folksiness that was at once completely consistent with his manner and totally at odds with both his erudition and the force with which he expressed his ideas.  If he disagreed with you, he let you know it without sugar coating but also without any hint of malice.

Thinking back now, I don't think I met Ed on many more than a dozen or so occasions over the years, but he made a singular impression.  Both past and current colleagues who knew him far better than I did speak of Ed with a mix of deep fondness and something like awe.  One such colleague said of Ed's kindness last week something like this: "I only hope that I will one day be remembered as I remember Ed."  Amen.

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