Naming Controversies, Utilitarianism, and No Accounting for Taste
In what was almost assuredly the final minute of my most recent fifteen minutes of fame (which was sparked by a NYT article in early December 2023), I appeared on a podcast a few weeks ago. Hosted on the Inside Higher Ed site, "The Syllabus" bills itself as a podcast about campus politics. My conversation with the host lasted about 45 minutes, 23 minutes of which ended up going into the podcast, which was posted early this month.
The host, Mark Oppenheimer, and I spent the bulk of the time talking about why university faculty tend to be Democrats rather than Republicans (and whether that is at all important), a discussion that I will summarize and extend in a future column. To my pleasant surprise, however, Mr. Oppenheimer had also gone to the effort of reading quite a few of my columns here on Dorf on Law, including my writings about the Stanford Law incident last year in which a far-right federal judge auditioned to be the next Supreme Court diva (which I summarized here, with links therein to all five of my original columns). That part of the conversation did not generate much heat (or light), however, so it was understandably dropped from the final podcast.
The other detour, however, did lead to a very interesting conversation. Mr. Oppenheimer wanted to discuss my various writings about naming controversies in 2020, all of which I later gathered into an essay published in the University of Florida law school's Journal of Law & Public Policy. In those essays, I took the position that there is at the very least no particular reason to freak out about changing the names of buildings, streets, cities, or anything else, much less to worry about supposedly "suppressing history" by removing statues and other iconography honoring slavers, mass murderers, and traitors. In one particularly cheeky moment, I invoked the lyrics of the super-catchy old song "Istanbul," writing that "Istanbul was Constantinople, and it is not our business to say why 'Constantinople got the works.'" After that column went live, Professor Dorf reminded me that Constantinople was once Byzantium, which of course served to emphasize my point.
The podcast includes part of my exchange on this topic with Mr. Oppenheimer, who was decidedly unconvinced by the idea that there is any reason to change such names. It might be more accurate, however, to describe him as "undecidedly unconvinced," in part because I suspect that he likes to be provocative in hosting his podcast, but also because he said this:
I will confess I've gone back and forth on this question many times in various instantiations. I was teaching at Yale when Yale decided to rename Calhoun College, the residential hall that was named for Senator John Calhoun. He was one of the great theorists of slavery as a positive good. He wasn't just a kind of go along with the flow supporter of it; he wasn't passive about it; he wasn't just a man of his times. He was a true enthusiast for slavery. I ultimately agreed that they should rename the college, and they did. And I think that was a good thing.
So far, so good. The host's very next word, however, was "but," as in: "But looking at the question of renaming, I sometimes find it interesting. I have a hard time putting my finger on the good that is served by renaming." He described it "as an almost metaphysical claim that by leaving the name up there, there is a furtherance of harm even if you can't point to the specific harm," and he emphasized the point by saying that it "strikes me as an almost religious claim." To be clear, he also did not agree with the people who disagree with me, describing "a kind of alienation from both sides in that I don't really care who buildings are named after and there's a community of people who care passionately who buildings are named after and that maybe they can't point to how it matters."
He allowed me to have the last word on that topic: "But if there's a Stalin Hall, I would change the name. From my standpoint, if we wanted to go to a name-free system, sure. If that would work, it would work. But I'm of the view that choosing one name rules out all other names, and so we might as well choose one that is connected with somebody who's not horrible." (Side note: In the moment, I almost said "Hitler Hall," which would have been alliterative but too easy. My research assistants later told me that the Stalin reference was the right call, and because I want to believe them, I believe them.)
Here, however, I want to go back to Mr. Oppenheimer's musings about the "almost metaphysical" or "almost religious" aspect of the naming debates. Before doing so, I should note that it makes no sense to say that a person can choose not to take a side in those debates -- perhaps "nosidesism" is the double-negative of "bothsidesism"? -- because a "leave it alone" attitude favors one of the two sides.
I suppose that one could argue that there is a meaningful difference between saying "Leave it alone or I'll kill you!" and "Leave it alone cuz who really cares?" Even that, however, shifts the burden onto the anti-horrible side of the debate, whereas (setting aside any pecuniary costs of changing names, which can run from trivial to somewhat more than a rounding error) the burden should be on those who affirmatively want to hold onto the name of someone like Calhoun as against all other possibilities. Path dependence does not win this debate.
Again, the host allowed that he agreed with the Calhoun name change, although it was not clear to me why, given his other statements. To his possible credit, however, that was perhaps his point: I generally don't care, but even I cared about this one. I wonder why.
And that brings us back to the metaphysical/religious aspect of the issue. The specific question that I had a difficult time answering was why I care, or more broadly why anyone should care, or even more pointedly whether anyone who does not care should care about those who care. Got it? What was to me the most interesting part of the conversation did not make it into the published podcast, and I wish that it had, because I ended up almost accidentally landing on a satisfying answer to that question.
Mr. Oppenheimer correctly noted that any harms in this context are non-physical, which possibly means that they are not worthy of our concern. I do not have access to the part of the conversation that is not publicly available, but if I recall correctly, I first noted that the law recognizes all kinds of intangible interests, most obviously including protecting the dignity of individuals. But one might then simply ask why we do that, when it is possible to say that being treated as lacking in human dignity is itself "a you problem," as the kids might say.
At one point, the host was trying to find a way to get me to state concretely what "it" is that I care about, and he landed on this question: "What utility is there in that?" (Again, I do not have a transcript of this exchange, but I certainly remember it vividly.) We were not on a video chat, so Mr. Oppenheimer did not see how brightly my eyes lit up at that question, but let us just say that I was suddenly quite enthusiastic.
I started slowly and replied: "Well, I'm an economist, so I'm happy to talk about utility." Warming up, I noted that mainstream, completely orthodox economic theory is based on the idea of at least comparative utility, if not cardinal (that is, measurable in objectively neutral metrics) utility. If we think that a market-based economy is maximizing something, it is maximizing "social value" as measured by people's willingness to pay for goods and services, based on how much utility people experience by possessing or consuming those goods and services. To be clear, I have written tens of thousands of words critiquing that theory (e.g., here) -- as have hundreds of other economists and social theorists -- so I am not at all endorsing the orthodox theory. I am simply pointing out that there is something very intangible about the notion of utility, and it matters here.
The supposed power of utility theory is that it is non-judgmental. If people like "low comedy" rather than Oscar Wilde, who are we to judge? People's utilities are their own. There are no right answers when it comes to subjective judgments. Or, as the saying goes, "There's no accounting for taste." After describing all of that on the podcast, I then added (only a few weeks after my Michigan Wolverines had won the national championship): "So lots and lots of people care deeply about whether their team wins a football game. I can say that they [by which I meant 'we'] shouldn't care so much, but they do. And if we took away their football games, they would have less utility."
Should they have less utility? No matter how skeptical I am of the uses and abuses of utilitarianism -- and I am damned skeptical -- I agree with almost everyone who has thought seriously about that question. And the answer is that it is the wrong question. People care about what they care about. Now, we can have arguments about how to change what people care about or whether doing so would be ethical (or even possible), but if challenged to explain why I care about the names of buildings, streets, and cities, or the identities of the people memorialized in public statuary and the like, the answer is that I do care and that that matters even if I cannot identify the happiness-inducing aspect of what I care about. And even more importantly, it is not my job in that context to justify the sources of my happiness.
If the names of these places are changed, I will be happier. When Richmond, Virginia at long last took down the statues on "Monument Avenue," plenty of people like me were happier. Others were much less happy. The point is that objecting to both groups of people by saying, "Why do you even care at all?" misses the point, even if it could be an interesting question on its own merits. I have a taste for living in a society that does not honor genocidal maniacs like Andrew Jackson, and I have a taste for high-hopped craft beer. I felt an upward surge of utility from watching Bill Cosby being brought to justice, and I was very unhappy when his conviction was overturned. Why does any of that matter to me? How dare you ask!
In the end, what initially seemed like a difficult challenge was not even an issue. Mr. Oppenheimer is entitled to care only about extreme cases like Calhoun, while I care enough about other examples to get exercised about them. We can all also judge each other's judgments (as I judge people who think, for example, that Donald Trump is smart), but in the end, societies make changes when enough people with enough power decide to make changes. Because they care. For some reason.