Wednesday, February 10, 2021

Harvard Law School Won't (And Shouldn't) Discipline Prof. Mark Ramseyer For His Apologia For WWII Sex Slavery ( And What Should Happen Instead) - UPDATED

 by Diane Klein

J. Mark Ramseyer, Mitsubishi Professor of Japanese Legal Studies at the Harvard Law School, has published one of those law and economics papers that so many of us have come to dread - you know, the kind that revisits some historical horror to explain to us why "game theory" makes that historical horror perfectly OK, if you look at it just so.  Or why some reactionary or bigoted political position somehow just makes rational sense. It's the kind of pseudo-scholarship that demands that the reader first abstract away from everything that actually matters in law (like the fact that human beings are involved), and then reasons tendentiously but triumphally to its preordained conclusion.  The most notorious of such papers also typically contain an aspect of the "naughty"/prurient - these brave scholars are daring to say what no one else will, about some taboo subject or other.  This time, it's Ramseyer's argument that "well, actually" Korean sex slaves during World War II (sometimes known as "comfort women") were rationally contracting parties, and yes, you can guess the rest. 

Ramseyer's piece is not the first apparently historically incompetent article written under the auspices of game theory, but its shortcomings should not be excused that way.  It is possible to do better in applying this approach to complex and potentially tragic real-life situations, as Russell Hardin does in his 1995 book, One for All: The Logic of Group Conflict; and as Pierre-Andre Chiappori does in his 2017 book, Matching with Transfers: The Economics of Love and Marriage.  This is only to say that his historical shortcomings cannot be blamed on the sub-discipline in which Ramseyer is working.

After Ramseyer's piece was announced in a January 28 press release published in a nationalist/conservative Japanese newspaper, Sankei Shinbun, the predictable (and appropriate) tempest has ensued, including a Change.org petition (with more than 4000 signatures so far) demanding that Harvard Law School discipline him.  If this means firing him or stripping him of tenure, Harvard will not - and should not - do that.  But there are plenty of other ways those outraged by the article might respond.

First, why HLS shouldn't discipline him.  Short answer: academic freedom.  Longer answer, with fuller disclosure.  As a Vice President of the California Conference of the American Association of University Professors, I share that organization's commitment to academic freedom, shared governance rights, and tenure/security of employment.  These values are under siege, right now, from many sides. It is as important today as it ever has been that faculty speech, especially though not only in the scholarship context, not result in discipline on the basis of the position taken.  

There are nuances here, of course.  Academic freedom must be harmonized with disciplinary norms.  If a historian writes a piece of bad history, that certainly is and should be taken into account in hiring or promotion decisions.  Academic freedom protects a scholar's right to be wrong; it does not protect their right to be incompetent as judged by the discipline they are in.  Unfortunately, the legal academy is notoriously short on competent, appropriately-trained legal historians, and nothing prevents non-historians from "dabbling" in history in the law reviews.  (I know, because I've done it myself, a few times.)

Nevertheless, once a faculty member has been granted tenure (as Prof. Ramseyer was, more than twenty years ago), I would argue that not only the "correctness" but even the competence of their scholarship is not appropriately reviewed by the institution, unless it is so deficient as to be fairly characterized as a failure to carry out job obligations in that realm.  Like it or not, Prof. Ramseyer is a leading expert on both Japanese law and game theory.  Proposing a "game-theoretic" understanding of a complex historical event, without attaining a competent understanding of the history on which it is based (as Prof. Ramseyer seems to have done), including cherry-picking the evidence that suits the argument and ignoring what doesn't, while discreditable, almost surely does not reach that threshold.  I am not sufficiently a historian of this subject to be in a position to make that assessment here - and neither, I suspect, are most of his critics.  The undergraduates at the Crimson quite properly sought the opinions of several professional scholars from Harvard, elsewhere in the U.S., and in Korea, who roundly condemned the piece.  The response to his work within the academic and historical communities requires no additional intervention from HLS, as Prof. Ramseyer's employer.  

Which brings us to the list of things those outraged by this article can and should do, compatibly with the protection of academic freedom.  

1. Boycott the journal

Prof. Ramseyer did not publish this article on a blog, or post it on Twitter. It is forthcoming in the March 2021 issue of the International Review of [what else?] Law and EconomicsThat means it was submitted to this journal, and selected for publication.  It was edited.  Prof. Ramseyer himself claims that sections addressing some of the historical matters in the paper were cut at the request of the IRLE.  In our Internet age, when anyone can be a "publisher," editors of academic journals should be carrying out an important gate-keeping function.  Have they done so here?  If not, and you regard the failure as a serious one, tell them so.  Suggest to your institution's library that they cancel their subscription.  Withdraw your support from it as appropriate (which may include not assigning articles published in it). If you write in the area, don't submit to them.  Encourage your colleagues to do the same.

2.  Contact the journal editors

Unlike law school-sponsored law reviews, this journal is edited by professional academics, not law students.  While law students receiving a submission from a Harvard Law professor with an endowed professorship might have been unduly deferential (don't put too much stock in that "blind review" stuff), professionals have no such excuse.  Two of their editors are U.S. academics (the others are international scholars).  Feel free to write to Prof. Jonathan Klick at Penn or Prof. Eric Helland at Claremont-McKenna and ask whether they thought this was a suitable article for the journal to publish, in this form.  Call upon them to defend their publication of an article so historically irresponsible.  Did they have historians with expertise in this historical event review this article before publication, at all?  Ask what they plan to do to prevent the recurrence of such things.

Update: It would appear that pressure on the journal (since the original publication of this post last week) has had some effect.  As the Crimson reports, the journal is delaying paper publication to allow them to include the journal's own "Expression of Concern," as well as comments and replies it generated, together with the article, still slated to be published.  The Crimson also details, at length, the various responses to the article.  The issue has also drawn the attention of the higher ed press, including Inside Higher Ed and the widely-read TaxProf Blog.

Now, back to Harvard.  Demands that Harvard fire or discipline a tenured faculty member not only are wrong for the reasons I've described, they (mostly) fail to understand the relationship between faculty and administration in an institution with any robust norms of shared governance.  (Similar calls for Chapman University's President, Daniele Strupa, to "fire" John Eastman were equally misplaced.)  But that does not mean nothing can be done.

3.  Removal from endowed professorship

Conferring an endowed professorship on a faculty member is an honor and a privilege, not a right.  While some right-wing Japanese nationalists espouse ideas startlingly similar to Ramseyer's, others in Japan understand how damaging it is for Japan to continue to try to defend or excuse the indefensible.  Whatever the leadership at Mitsubishi may think, surely it is possible that those who created this professorship might not wish their name to be associated with these repugnant views, and might wish their endowed professorship to benefit the career of someone with different ones.

4.  Removal from teaching required classes

A professor's widely known and public views on almost any subject do not necessarily translate into problematic statements or disparate treatment of students in the classroom.  Nevertheless, the fear that they might is certainly a legitimate one.  When Penn Law Prof. Amy Wax made a series of (inaccurate) negative statements about the performance of Black law students at Penn, she found herself removed from teaching required 1L courses.  The same approach was taken to Prof. Paul Zwier of Emory, in the aftermath of his use of the n-word in a torts class. Prof. Ramseyer teaches the basic Corporations course at HLS, which, though not required, is certainly taken by many students.  Those students should insist on having another option in any semester in which they wish to enroll.

5.  Removal from committees

At this, our Marjorie Taylor Greene moment, we're all learning more than we might formerly have known about how the real work of Congress is done in committees.  So, too, the real work of a law school.  Does Prof. Ramseyer sit on committees where his views about race and gender might be relevant? Is his service there to continue?  This is not something outsiders can or should have much to do with - but insiders certainly can.

6.  Support responses from Korean students at Harvard

The Korean Association of Harvard Law School issued a statement on February 4, 2021, that included a serious take-down of what passed for "history" in the Ramseyer piece.  They were joined by several other law student organizations, including Harvard's Asian Pacific American Law Students Association, the Harvard Law School China Law Association, the Harvard Asia Law Society, the Harvard Law Entrepreneurship Project Board of Directors, and La Alianza at Harvard Law School. You can add your signature.  (I have.)  Prof. Jeannie Suk Gersen, a Korean-born woman who was the first Asian-American woman to receive tenure at HLS, wrote to the Crimson in support of the HLS student response (as did her ex-husband, HLS Prof. Noah Feldman), while reiterating her support for Prof. Ramseyer's academic freedom. The Korean International Students Association at Harvard College also responded, with a press release (in Korean) sent to Korean newspapers.  

7.  Stop using his casebook, or assigning his articles, and tell him and his co-authors exactly why

He is a co-author, with Prof. William Klein and Prof. Stephen Bainbridge, his former colleagues at UCLA, of a widely-used Foundation Press casebook on Business Associations and another on agency law.  Stop using them; stop requiring students to buy them; and write to him and his co-authors to tell them exactly why.

An article like Ramseyer's presents a problem similar to one more familiar to most Americans: how to evaluate the work of historians who downplay the role of slavery as a cause of the Civil War.  It is a disciplinary concern of historians to distinguish between groundbreaking work that upsets a settled consensus and specious attempts to rewrite history to suit a discredited political or intellectual agenda. Those engaged in the latter activity ought to be called to account by those with the disciplinary expertise to do so, and supported by those with sensitivity to the political and cultural dimensions at play.  No endowed professorship or alleged intellectual approach can or should insulate highly-placed academics like Prof. Ramseyer from the consequences of their own demonstrable historical incompetence, the moral dimensions of their scholarship, or the reaction of their students and colleagues to their political and cultural insensitivity.

30 comments:

Hashim said...

I find your proposed middle-ground approach confusing, for two related reasons:

1. If the point of academic freedom for a tenured professor is to avoid deterring controversial scholarship, isn't essentially the same harm created if controversial scholarship results in the professor losing the ability to publish future scholarship, teach future students, or assist in future school administration? Sure, the professor will still draw a salary, but that alone hardly seems sufficient to avoid chilling the triggering scholarship. (And if chilling the scholarship is fine because it's that bad, then termination should be fine too.)

2. If everything you suggest comes to pass, the professor will remain a tenured salaried professor even though he can no longer perform any professorial functions - he can't publish (if journals all blacklist him), he can't teach (if students all boycott him), and he can't even perform administrative tasks (if the school sidelines him). So what's the point of keeping him as a salaried employee in the equivalent of a union no-show job?

Simply put, I understand a limited response like denying a professor special honors, but the sort of sweeping boycott you suggest seems like termination in all but name, which makes even less sense than termination given the unearned salary.

Jay Charles said...

My first thought when reading this was of the 2017 Op-Ed by Amy Wax and Larry Alexander, "Paying the Price for Breakdown of the Country's Bourgeois Culture." Professors at Penn Law and San Diego Law respectively, Wax and Alexander were roundly (and rightly) criticized for many of the shortcomings this post highlights.

With that in mind, my eyebrows raised when I saw that Ramseyer's article was going to be published in a journal edited by Penn Law Professor Jonathan Klick. Klick, of course, is Wax's colleague on the UPenn staff.

The reason I found this notable is: back when Wax published the Op-Ed, 33 Penn Law professors signed onto an article condemning Wax's statements; Klick was one of those 33.

Far more interestingly, however, Klick wrote separately a few days later, in what can only be described as a "concurrence" with the condemnation letter. The title of his post was "I don't care if Amy Wax is politically correct; I do care that she's empirically incorrect." Noting that he himself had "faced the left’s wrath for questioning the received wisdom that racial healthcare disparities are caused by racism, and who has been heckled during presentations for receiving money from the dastardly Koch Brothers," Klick explained that his issue was not necessarily that Wax had expressed these views, but rather that she had described them as objectively provable and following from the evidence. Klick concluded: "I don’t think Wax is a racist, and I don’t care if she’s not politically correct. But I do believe arguments that only take note of (or, worse yet, merely assume) convenient empirical facts while ignoring inconvenient ones deserve to be criticized. This is true when you disagree with someone’s underlying normative views, but it’s even more important when you don’t."

I don't necessarily have a conclusion to draw, but in light of this post and Professor Klick's statements following Amy Wax's 2017 Op-Ed, I am interested in seeing if we do in fact get any more explanation from him or other editors of the journal.

Eric Rasmusen said...

[typos fixed] I'm a co-author of Professor Ramseyer's. I find it notable that his scholarship is criticized with such strong language but I have yet to see any critic actually tell us us what's wrong in his article. Don't you think you're obliged to support such strong claims with *some* evidence?

His article, especially the working paper version, has convincing explanations for the falsity of the kidnapping claims--- claims that generated royalties for the "I was a Japanese kidnapper" books author and various sums paid by the Japanese government. You really need to address them. If you aren't a specialist in the field, that's no excuse. It means you should be even more careful in your language.

Eric Rasmusen said...

On stigmatizing Prof. Ramseyer by creating alternatives to his classes, there's relevant caselaw:

" Levin v. Harleston, 966 F.2d 85 (2d Cir. 1992). A professor at the City University of New York (yes, that bastion of free speech, CUNY) published "denigrating comments concerning the intelligence and social characteristics of blacks." In response, CUNY "created an 'alternative' section of Philosophy 101 for those of Levin's students who might want to transfer out of his class." Both the District Court, and the Second Circuit, found that the creation of the "shadow" class violated the First Amendment." https://reason.com/volokh/2019/11/24/what-is-the-difference-between-firing-tenured-professors-and-removing-them-from-required-classes/

Tom Ginsburg said...

I have read the piece, unlike, I am sure, most of those condemning it. Diane's post is thoughtful but I worry about some of the steps she advocates. Boycotting the journal will, of course, do little since i doubt many of the offended people are regular readers of the IRLE, and no one has asserted that there is anything wrong with the economic analysis. He expressed an unpopular view with data that is presumably accurate.

But the publisher might be targeted next. And that means that we are essentially pressuring academic publishers to listen to the most popular or powerful views. Think about what that means for the Journal of Palestine Studies, the Journal of Taiwan Studies, or a pro-life academic.

We need a much more vigorous collective defense of Prof. Ramseyer's academic freedom. I've written on Japanese colonialism in Korea and no one would accuse me of being anti-Korean. I am for our freedom to argue about these things, now under attack from both the right and left.

Hashim said...

Ps. I suppose my criticism was overstated insofar as you proposed only boycotting this journal and his textbook, not all of his future scholarship. That said, I dont really see any principled difference between boycotting his future scholarship and boycotting this journal - indeed, boycotting the journal hurts innocent third party authors.

Diane Klein said...

Hashim - I see that you walked back your criticism after a more careful read. There is absolutely NOTHING in my piece that suggests he (1) lose the ability to publish ALL future scholarship. He can write whatever he wants, and publish it wherever will take it. So that is a complete straw man. (2) Nothing I say suggests he be prohibited from teaching "all future students." Only that he not teach required courses forced upon unwilling students, who have reason to be concerned about his views (about Koreans and women, to begin with). So also, a straw man. (3) Nothing suggests stripping him of ALL committee assignments, only the ones where this might be a concern (like appointments). There are a ZILLION committees he can still serve on. So - since I didn't suggest any "sweeping boycott," I'll stop there. Your follow-up about ONE journal - the point of boycotts is to change conduct. If the journal repudiates it, and raises their standards, the boycott ends (of course). Jay - yes, indeed, re: Klick. The point of including him was to suggest to those upset by this article that the right "target" is the JOURNAL THAT PUBLISHED IT (along with the professor), not the institution that EMPLOYS him. So sure, let's see what Prof. Klick has to say. Eric - my blog post links to the Harvard Crimson article that includes the comments of six or seven professional scholars in this area, who HAVE read it and who detail its shortcomings (including the historical Korean sources Ramseyer openly admits not reading - apparently, not in translation either). Did you not actually read the Crimson article? I should not need to repeat what is said there - that's why it's hyperlinked. Tom - why are you presuming the data is "accurate," when numerous scholars in the field deny it? I make no such assumption; I defer to people who work full-time in the field. And by the way - my piece IS a defense of his academic freedom. Part of the point I tried to make there - and may not have succeeded at doing - is that calls that Harvard fire him are utterly misplaced - but that it absolutely IS appropriate for those in the discipline to evaluate the work, and respond appropriately if it fails to meet disciplinary norms of adequacy. There is a difference (as I also point out) between controversial scholarship - and BAD scholarship in its own terms. People IN the discipline are the ones who should make those judgments. That was my point.

Joe said...

Don't you think you're obliged to support such strong claims with *some* evidence?

I think that the blog post is helpful in putting forth an argument that goes beyond one person to a wider principle.

On that, I do see some concerns with some of the "middle paths" here. Academic freedom would to me entail not an all/nothing matter, but freedom from being stripped of important lesser positions and privileges. On that front, it basically would be important to justify growing penalties. So, stripping MTG from her committees to me was appropriately backed up, rightly so. Not teaching a required course would not be a trivial thing. Good grounds should be provided there. It is so argued they exist.

But, surely, if an example is cited, we should be support. The blog post in fact links criticism. If the linked "KAHLS Statement in Response to Professor J. Mark Ramseyer’s Article “Contracting for sex in the Pacific War” is not "support," perhaps calling out like this warrants saying why. Other things are referenced. Since the blog post is not from an expert in the area, but someone expressing a general argument on the subject of how to reply to a general category of complaints, not sure what more is required.

I'm sure supporters will find ways to challenge such "support," but what else is new? I don't find someone here "convincing" but hey others have and provided them with high positions. Still, sure, the stronger the reply, the more a good case should be provided. On this question, I will cede the ground to experts in the field covered.

Hashim said...

Diane, thanks for the response, though i'm still puzzled.

you haven't explained why there's any principled difference between boycotting his textbook (which you did urge) and boycotting publication of his future scholarship (which your post was silent on).

As for the students, if they all shared your views of this article, wouldn't they all opt out? And if they don't all share your views, then doesn't that suggest that it's not so beyond the pale as to trigger the retaliation you're proposing? Relatedly, what has happened to enrollment in classes taught by professors subjected to the type of opt-out you're proposing (eg, amy wax)? I would guess that it would plummet, because even students not worried about the teaching would be worried about criticism from their peers for not likewise opting out. But that's an empirical question that I don't the answer to, and I'm curious if you do.

Joe said...

[I wrote my comment before seeing the reply to another by the author of the piece, but don't think I'd have anything to add except to add that she highlights the need for evidence before stripping people of lesser things etc.]

CEP said...

I am not defending or attacking anyone here. I am attacking a scholarly method.

I've not read Professor Ramseyer's article, although I've read some of the other works specifically cited in Professor Klein's piece. I have a fundamental problem with all of them: They all seek to measure the speed of light's transit in the ether. In that sense, all "apply game theory to historical events while omitting fundamental portions of the historical context" articles fail, because they all presume that there exists a "pure game theory" in which we can meaningfully, and predictably, measure those results.

Perhaps it's better, though, to treat Professor Ramseyer's article as further evidence of the converse case of speed-of-light-in-the-ether. In that sense, it is instead a demonstration that applying purported "pure rational economic actor" ideology and methods cannot either predict or explain human behavior (historically or prospectively), because the ether of "human behavior based on noneconomic considerations" does exist. And if there's one principle of history — and military history in particular — that should sound similar, it's the "law of unintended consequences." Which, if one looks at Michelson-Morley in that light, just reinforces the analogy.

(The amusement of reasoning by analogy in the context of criticizing a purported game-theoretical result is enough to put a smile on my face. A sardonic smile, admittedly, but a smile nonetheless.)

Diane Klein said...

Hashim - here is a flippant response: I don't believe in PRIOR RESTRAINT of speech. I have no idea what he'll write in the future; I have no opinion about it. As I argue in the piece, if you want to use game-theory for history, you can find a more reputable way to do it. Boycotting his textbook is punishing him for what he HAS said; that is entirely different from punishing him for what he HAS NOT YET said. I hope that is clear. As for the students - as adults with their own opinions, they can do whatever they want. The point is that no student should be put in a position to be required to take his course (and none are, now - as I say explicitly in the piece, he teaches Corporations, which is not a required course. You do not understand law students well if you think they wouldn't take a class with someone politically unpopular with some students for that reason alone.

Hashim said...

Diane, that does seem flippant to me, given that the past speech in his textbook isnt the offending speech, and thus seems materially indistinguishable from his future speech.

As for students, precisely because they're adults, one might think they should start coming to grips with required interactions with folks who have said things they deem offensive. They wont get to opt out of hearings before judges, or depositions by lawyers, who have said far worse. To be sure, a school can choose to coddle them even though the offending speech apparently isnt bad enough to warrant termination. But it remains unclear to me why doing so is consistent with a professed belief in academic freedom, especially if enough students choose to opt out, leading to a professor with no students.

As for knowing students well, you doubtless know them better than I do, but from my three years at harvard law, I strongly suspect that there is a not-insubstantial number of students who wouldn't want to deal with the hassle of being criticized by their peers for not joining the boycott if they could costlessly opt for a different professor - and I further suspect that number is growing rapidly in the current climate.

Diane Klein said...

And here's the response to that. Continuing to use/assign his materials is "rewarding" him for his past conduct, including THIS conduct. I find that problematic - deeply. (This is just the Wagner/Gauguin problem all over again - the Michael Jackson problem, etc.) One has to be willing to sacrifice the "benefit" of the part of someone's work you "like" if you wish to send a message about what you don't. Again - a boycott is intended to change behavior. If you boycott a retailer because of their labor practices in ONE place, you don't just keep shopping in the OTHER places, because it blunts or erases the critique. With respect to students: you are simply choosing to ignore any distinctive features of the pedagogical relationship (which you are free to do). A professor is NOT a boss; NOT a judge; NOT opposing counsel. NONE of those people have the obligations to students that professors have. It is not "coddling" students to understand that the professor-student relationship is a different one. To me, that is like saying that because a DOCTOR can ask you to take off your clothes, ANYONE can - because why "coddle" people who might have to disrobe in front of a doctor? Just silly to me. Every setting is distinctive. Academic freedom means his academic EMPLOYER does not take a negative EMPLOYMENT action based on the content of offending speech. To say that students cannot take ANY action (or that the employer cannot) is (to me) as silly as saying that you can order them to "like" him or invite him to lunch. No. These game-theory types love the market. This is the market. If no one WANTS to take his class, he ought to resign, because the market has spoken. Right? And of course one can NEVER "costlessly" opt out of courses taught by the world's leading expert at a thing. That is him, on some topics. Each students will balance the costs and benefits themselves - I would think these law & econ guys would actually REFUSE to teach required courses because of the element of force. Shouldn't they ONLY want those who voluntarily enroll?

CEP said...

Serious question, and one I've been struggling with since I was an undergraduate a few decades back:

So, a boycott is intended to change behavior. How does that work with, say, Ezra Pound? And does reading the Cantos (written before his first "incident") have anything to do with his later, utterly reprehensible activities and speech? Especially since he's dead? And his most-worthy-of-reading works are out of copyright and thus not even benefiting his heirs?

This is part of the problem with "boycotting Wagner" — there's just not a whole lot that boycotting Wagner can do to alter Wagner's behavior. Or, for that matter, Wagner's heirs. The boycott itself becomes problematic when it's code (often tending toward dogwhistling...) for boycotting "the wrong kind of people" who participate in Wagner productions, who play Wagner's music in an orchestra, etc. Which is more to say that this is hard than it is to say "no boycotts!" (And then one gets into the second-order consequences of "boycotts" like "crossing picket lines," but now we're getting into historical areas that most Americans think they know an awful lot more about than they really do. Not excluding myself — I know enough to comprehend how much more there is to learn.)

kotodama said...

I'll abstain from plunging into the vigorous back-and-forth over boycotting, but will just make 3 random observations.

(1) The circumstances of the article are interesting to me. For one, as many folks here know, the KR/JP relationship fluctuates over time, but lately it's been at a nadir. In particular, within just 3 weeks before the Sankei press release, a KR court issued a ruling on compensation for survivors, which greatly annoyed the JP gov't. And further back, in 2018, the KR SC rendered a decision on forced labor against MHI, which is a major component of the Mitsubishi group/keiretsu. So I think Mitsubishi leadership at least may be pleased with the article, given that it pushes back against Korean claims, although not w.r.t. MHI specifically. The timing as just noted also seems like more than a mere coincidence. Finally, it comes across—to me anyway—to be promoting a scholarly (you can imagine scare quotes here if you want) article like this with a newspaper press release, especially when the newspaper's political orientation aligns with the article's thesis.

(2) Why was the approach in Eastman's case "misplaced"? Despite the initial resistance from Strupa (whose statement I personally found to be staggeringly pompous and condescending), Eastman did ultimately "retire" from Chapman. So the approach worked, didn't it?

(3) FYI, the article appears to have been flagged with an "Expression of Concern", so it'll be interesting to see how that plays out.

https://www.sciencedirect.com/science/article/pii/S0144818821000090

Hashim said...

Diane, thanks again for the response. My final rejoinders are:

(1) i agree with you that continuing to use/assign *any* of his past work can be characterized as "rewarding" him for his past offensive work, but that's *equally* true for *publishing his future work* (unless and until he somehow cures the perceived offense from this particular piece). Yet you were the one who called it a "complete straw man" that you were proposing a blanket boycott on all future publication. Either the boycott should be limited to the actually offending material, or it should be extended to all his material; it seems conceptually incoherent to limit the boycott to all past material (even though the overwhelming majority of it is not offending) but not any future material (even though the overwhelming majority of it will likely resemble the past, non-offending material). Now, perhaps you can say it's entirely consistent with "academic freedom" for journals to boycott a scholar based on prior work simply because they're not his *employer*, but that seems like a pretty thin conception of academic freedom, and one that I'm skeptical you'd embrace in other contexts.

(2) as for students, i have the same basic reaction -- while you're right that it's certainly consistent with free-market principles for a university to give students the right to opt out of instruction from professors who've said things they dislike, that action by the employer reflects a fairly thin conception of academic freedom given the adverse effect on the professor for non-sanctionable speech. If a university during the cold war had said that none of its students had to take classes from the lone communist on the faculty, or a university in the south during jim crow had said that none of its students had to take classes from the lone civil-rights supporter on the faculty, and the professor thereafter had no classes to teach, would you really say that's consistent with academic freedom and the professor should "resign because the market had spoken"? I would think that such results would have a pretty obvious chilling effect on scholarship, and that a school committed to academic freedom would not single out a professor for adverse treatment in this manner, but instead respond to offensive speech with counter-speech.

Of course, there's nothing wrong with having a thin conception of academic freedom, or even no conception of it. It's a perfectly respectable view that academics have to live with the consequences of their speech just like everyone else. But it's hard to see the value of "academic freedom" in the sense that a professor can continue to draw a salary but otherwise can be black-listed with respect to both publication and teaching, with the school facilitating the latter and acquiescing in the former.

Anyway, thanks again for the responses.

SaveAmerica said...

The comfort women were just prostitution that even US military record in WW2 admitted.
In the days of WW2 Korea was a part of Japan, which was not invasion. USA and the other countries had accepted this unification of Korea with Japan.So Korean prostitutes were treated as well as originally Japanese comfort women who were the majority of prostitution.
The word "Sex-slave" was created by far-left activists in Japan. They are influenced by North Korea and CCP.
The propaganda has been being spread by CCP-Korean alliance and the political supporters in USA. The purpose of CCP is to isolate Japan from USA and South Korea, which will result in the terrible occupation of Japan by Chinese and massive genocide like Tibet and East Turkistan.
The above article is based on such CCP/Korean propaganda. The authors seem to have made no effort to research into primary sources, even USA military record and recent reports issued from the US government.

Eric Rasmusen said...

Someone said "If the linked "KAHLS Statement in Response to Professor J. Mark Ramseyer’s Article “Contracting for sex in the Pacific War” is not "support," perhaps calling out like this warrants saying why." The Statement is at https://orgs.law.harvard.edu/kahls/statements/#:~:text=Professor%20J.,-Mark%20Ramseyer%2C%20the&text=Professor%20Ramseyer's%20arguments%20are%20factually,also%20makes%20in%20his%20editorial.

The Statement is a good example of abuse without evidence or reasoning, or, indeed, even any sign that they have grasped Ramseyer's reasoning or read his evidence. They say he lacks sources, which seems wrong, given that the working paper version, at least, has 7pages of bibliography in its 29 pages of length. Naturally, the IRLE didn't want all that in the law-and-economic print version. See

https://orgs.law.harvard.edu/kahls/statements/#:~:text=Professor%20J.,-Mark%20Ramseyer%2C%20the&text=Professor%20Ramseyer's%20arguments%20are%20factually,also%20makes%20in%20his%20editorial.

The Statement is just something some students put together, and just a petition, so I don't blame them for not going into detail, but I do doubt they've really read Ramseyer's article through and tried to understand it.

Eric Rasmusen said...

Professor Klein says: "my blog post links to the Harvard Crimson article that includes the comments of six or seven professional scholars in this area, who HAVE read it and who detail its shortcomings (including the historical Korean sources Ramseyer openly admits not reading - apparently, not in translation either)."

The Crimson article is at https://www.thecrimson.com/article/2021/2/7/hls-paper-international-controversy/?fbclid=IwAR1oOVzUrbpp348i24xWX_EDyMyjYo0S0ReQrBA3QnCiLtUu_M0voMzHeLU .

The Ramseyer working paper is at http://www.law.harvard.edu/programs/olin_center/papers/pdf/Ramseyer_995.pdf

Read the Crimson article carefully and you'll see that the scholars who attack Ramseyer don't actually provide any evidence against his article, just abuse or irrelevancy. It isn't enough for a scholar just to say he doesn't like Ramseyer's article. The Argument from Authority is weak to begin with, and especially weak against a Harvard Law School scholar whose credentials and publications are stronger than any of his critics'. See his 2010 vitae at http://www.law.harvard.edu/faculty/ramseyer/ramseyer2010cv.pdf.

It starts with Hosaka, who says he thought Mitsubishi gave the chair to Ramseyer to promote their views. I just googled, and in 1989, 8 years before Ramseyer arrived at Harvard, the Chair already existed. That I checked this out in 2 minutes and Hosaka didn't even try before he made a serious allegation against Ramseyer's character tells us something about Hosaka's style of history.
https://www.washingtonpost.com/archive/opinions/1989/06/17/about-that-ad-hominem-attack/d5b1794e-50ba-4eff-b0bd-66a0e1074035/

I'll post this, and continue maybe later with the rest of the Crimson article's scholars.

Frank Willa said...

Professor, thank you for the post. What you suggest seems reasonable to me. I did a quick look at the Journal and HLS site for Ramseyer; and note this is not his first on this topic. (2019 & 1991)
Also, your first paragraph puts 'this' in perspective; such that in my view, it points out that using game theory lacks humanity. To me why, even if one thinks this theory fits, wouldn't your overall judgement tell you not to publish? To support this I note that the journal abstract has: Keywords Prostitution, Indentured servitude.
For me, as you use the word 'horror', fits what happened, and this analysis diminishes and dehumanizes women - that having man after man using their body is just what they think is the best for them.
This takes me to my first thought reading about this 'game theory' framing. What judgement for what is right and what is wrong escapes this author; and so your post of January 19, 2021 herein came immediately to mind. Aristotle, 1; Plato, 0.

Eric Rasmusen said...

Frank, game theory is following economics, which is following the scientific method generally, which is usually traced back to Machiavelli. What is new in Machiavelli is the cold-blooded analysis of what *is*, without much comment on what *should be*. He shocked everyone by writing about how politics plays out, without condemning evil tactics. He said, for example, that Love and Fear are both effective tools in politics, but Fear is the more effective of the two, because people are ungrateful. That is true, I think, even though it is unfortunate.

Thus, the economic approach is to ask what actually happened in 1930's Korea, and whether poor women might have been motivated by wages higher than they could get as peasant workers, rather than whether they should have been thus motivated, and whether the Japanese were evil, and whether the Korean recruiters used by the Japanese military were evil.

Joe said...

The reply challenges the merits of (a) response provided.

So, "no support" so far to me suggests "not enough in my opinion" (which someone else can challenge).

I appreciate the clarification.

Phil said...

Somehow I am not surprised by an old white male who grew up in Japan and writes about sex slaves actually being cool with their enslavement. Creepy!

Also, on the game theory: it is laughable how conservatives (or some similar species) use it to explain their pseudo-intellectual fantasies of how people and economies function. Big fail!

Eric Rasmusen said...

"The reply challenges the merits of (a) response provided.

So, "no support" so far to me suggests "not enough in my opinion" (which someone else can challenge).

I appreciate the clarification."

Hosaka Yuji's "Mitsubishi Professor" response doesn't count as support for an allegation. Now that I think about it, it's interesting as Ad Hominem compounded by Guilt by Association compounded by Stereotyping. It's ad hominem because even if Ramseyer is a Bad Man, that doesn't respond to his arguments. It's Guilt by Association because even if Mitsubishi Co. is a Bad Company that doesn't mean Ramseyer is. It's Stereotyping because it assumes that Mitsubishi is Bad because it's a Japanese company.

Namsun Kim said...

Eric Rasmusen
I think, as a coauthor of the article, it is unfortunate that you only select those portions of criticism that suggest a conflict of interest or reason to believe the author is contaminated by prejudice, rather than the countless references to research, testimony of living victims, and a public record of litigation in multiple jurisdiction. Your counterargument that no critics are as nobly "credentialed" or associated with as prestigious institutions as Prof Ramseyer, violates to a greater extent the precise evils and lack of rationality associated with any ad hominem attack

You may be a proud coauthor, but in case you have failed to do a minimum lit review on the topic prior to putting your name on the paper, I might guide you towards a few introductory (and I shall hope sufficiently noble for your standards) sources:

1) a series of UN Human Rights Committee reports on the matter (United Nations Sub-Commission on the Promotion and Protection of Human Rights, Systematic rape, sexual slavery and slavery-like practices during armed conflict: Final report submitted by Ms. Gay J. McDougall, Special Rapporteur, E/CN.4/1998/13 (June 22, 1998), available from https://undocs.org/E/CN.4/Sub.2/1998/13)

1) a 2007 US House Resolution demanding Japan apologize for such coercion. https://www.congress.gov/bill/110th-congress/house-resolution/121

2) a 2007 US Congressional Research Service report (Japans military comfort women system). https://apjjf.org/-Congressional-Research-Service-/2405/article.html

Not to mention a mountain of evidence and academic you can find by searching the Korean congressional records, if you have the desire to conduct a review of primary sources in a language spoken by the vast majority of victims

For your further viewing pleasure, here is an interview of a Dutch victim produced prior to her death (https://youtu.be/RBchgNkcCA0)

I would also like to ask exactly how many victims (or from your perspective, purported victims) you have actually attempted to interview? There are, though unfortunate, a handful of women who are still alive. I am sure the Korean government would be more than willing to provide you with a covid-free environment and ensure your medical well being during your stay

Namsun Kim said...

But beyond the article, and the rather thin thesis on which the bulk of the argument rests (the controversy regarding the Asahi Shinbun's Yoshida Seiji article), Prof Ramseyer's extremely bold statements, statements spoken with a level of conviction seldom expressed by academics or students of science, I believe is what is creating the greater portion of this controversy.

Below is an excerpt from the oped published by Prof Ramseyer in the Sankei - it is surprising that the speech of a purported scholar of "economics", and not "good or evil", reminds many readers of common far right / fascist rhetoric. Not to mention that claims of "pure fiction" carry an extremely high burden of proof to substantiate, by any academic standard:

"By sabotaging any reconciliation between South Korea and Japan, the CDH directly promotes a key North Korean political goal ー and that seems to be the point. Initially organized by Korean communists, the group was at one time designated by the South Korean government as a North Korean affiliate.

As academics, we are used to dealing with exaggerations. If someone recounts a story that sounds bizarre, we assume the truth must be more modest. It usually is. We are not used to finding that the story is pure fiction. But that is the nature of the comfort-women-sex-slave story.

Within Korea, the story fairly obviously struck a nationalistic chord. Within Japan, it fed a long-standing opposition among professors to the Liberal Democratic Party and its plans for the Self-Defense Force. And within the western academy, it fit the triple “narratives” of racism, imperialism, and sexism currently so fashionable in some departments.

Yet pure fiction it is."

Namsun Kim said...

(Link to Ramseyers oped) https://www.google.com/amp/s/japan-forward.com/recovering-the-truth-about-the-comfort-women/amp/

I am a graduate of the law school where Prof Ramseyer teaches, and a current resident of Korea. Perhaps from where Prof Ramseyer sits, it is easier to acknowledge the occurrence of the Holocaust, more so than the war crimes that occurred during that same war by the Nazi's Asian fascist counterparts. Perhaps, had he had interacted with, or had more exposure to "pacific theater holocaust" victims, whether through Hollywood films or primary research, he may have had greater reason to doubt similar claims (primarily advocated by the Japanese) that all of this was "pure fiction".

But what troubles me more is the entire law and economics justification for his curiosity regarding the matter to begin with.

Does it take an economics scholar to contemplate that two parties may seek to find some sort of a negotiated arrangement, even in the most dire of circumstances? Would the black enslavement experience warrant a similar inquiry? What about rape - could there be a law and economics theory as to why rape even occurs, and why it does not result in the victim committing suicide if it was such an unbearable experience?

Does it take a genius to figure out that, even if we entertain this concept of freedom of contract for a brief moment, underage peasant girls of a colony that had been brutally persecuted throughout decades of Imperial rule may not be on equal footing when negotiating a contract for intense physical services vis a vis what was at the time the second most powerful military in the world (or agents thereof)?

I just find it disappointing that any reputable publication, or any reputable scholar, would find it all that entertaining to delve into the intricate terms, payout structure, and duration of a contract for sex, between underage peasant girls on the one hand, and the Japanese Imperial Army on the other, entered into during the most atrocious of times.

When I was in law school, we would call something like that an unconscionable contract. When I was a resident of Massachusetts, it was illegal for a minor to consent to any type of sexual contact.

I dont think the law has since changed. I also dont find this topic entertaining or interesting, nor do I understand how it adds to the body of human knowledge or civilized thought.




Eric Rasmusen said...

Namsun Kim: I am not a co-author on Professor Ramseyer's comfort women article--- I am his co-author on many other papers and a book on the Japanese judicial system. I said I was a co-author only to disclose that I am a friend of his. That you didn't know this makes me wonder whether you actually read his comfort women paper, much less the working paper version that has the historiography parts that were cut from the published version.

We are writing a new paper on ostracism law in Japan. We very much welcome comments, cases, and anecdotes--Korean ones might be relevant too, especially 1910-1945. It is a hard topic to get data on:

"Ostracism in Japan" J. Mark Ramseyer and Eric B. Rasmusen. Group ostracize members. Sometimes they do it to enforce welfare-maximizing norms, but other times ostracism reduces welfare. Japanese villages have long used ostracism as a tool for conformity, and the targets have sometimes sued in response. The cases that have reached the courts disproportionately involve welfare-reducing behavior by the community; for example, ostracism against targets who report corruption. The targets usually win the civil cases against ostracizers and prosecutors usually win the criminal cases. Yet the targets seem not to have sued for financial or injunctive relief, and the prosecutors seem not to have pushed for prison terms. Instead, they have used the courts for an informational end: to certify and publicize innocence. This end is of minor importance in normal litigation, but crucial fo ostracism, as we explain using a formal model. We use case examples and the model to explore the factors that cause disputes to lead to ostracism and ostracisms to lead to litigation. http://www.rasmusen.org/papers/ostracism.pdf.

Eric Rasmusen said...

Namsun Kim: Thank you for your citations. Citations by themselves aren't evidence. The question is whether the cited studies contain evidence rather than just assertions, and contain evidence on the topic of Professor Ramseyer's paper. His paper is about Korean comfort women in the Japanese armed forces. It is not about Dutch women, so the interview you cite is irrelevant. Professor Ramseyer specifically notes that the Japanese army did many illegal and atrocious things in China, the Dutch East Indies, Vietnam, etc., but his article is about Korea. Also, it is worth mentioning that the activists who own the nursing home in which the women claiming kidnapping live carefully control access to them.