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.