Important Concerns and Issues


Brian Leiter's Reaction to the Posting of Ed Erwin's Letter, and to Subsequent Correspondence

1. Overview

Professor Ed Erwin believes, as do I, that it is important for people to know the outcome of the lawsuit that had been filed against him, Colin McGinn, and the University of Miami, and that had been settled in 2016. He therefore wrote a letter describing in detail the outcome of that lawsuit, and given that Leiter Reports: A Philosophy Blog is “The world's most popular philosophy blog for more than a dozen years,” Ed contacted Brian Leiter, to ask Brian if he would post that letter on his website.

In order to decide whether to post Ed’s letter or not, Brian asked to see the (very lengthy) deposition of the plaintiff in the case, and after reading it, Brian indicated that he was not interested in posting Ed’s letter. Ed had told Brian that if Brian not to post the letter on Leiter Reports, I would post it on my website, and Brian said that if I did so, he would provide a link to the letter on his Leiter Reports.

I therefore posted Ed’s letter, which seems to me excellent, and very informative, with the hope that that would then result in some fruitful discussion on philosophy blogging sites, including, for example, Justin Weinberg’s Daily Nous.  I expected that Brian would set out a brief summary of Ed’s letter on his blog, accompanied by a link to my site. Brian, however, decided to offer a detailed commentary, setting out the case for what he viewed as a more plausible hypothesis concerning the plaintiff’s behavior than the one set out be the defense.

As will be described below, Professor Erwin and I have written to Brian, criticizing various aspects of his discussion. Our criticisms have not been posted on Leiter Reports.

2. Professor Erwin’s Letter to Professor Leiter 

Ed Erwin wrote a letter to Brian offering detailed support for the view that the hypothesis that Brian was claiming was plausible rested upon a supposition that there were good reasons to believe was false, and which Ed described.  Brian's response to the letter from Ed consisted of the following short update at the end Brian's discussion:

“UPDATE:  Professor Erwin writes:  "Concerning your reading of the Morrison deposition, if you are merely reporting what strikes you as plausible, we do not disagree. However, others will take you to be saying that in fact this is the most plausible reading. To them I say: All depends on accepting Morrison's statements as true."  Professor Erwin does not think the plaintiff is reliable.  I agree with him that if the plaintiff's statements are not accurate, then her explanation of what transpired would not be persuasive.”

Notice two things here. First, Brian refers to Ed's view, but does not tell readers that Ed offered, in his letter, detailed support for his view. Second, suppose that you had put forward a hypothesis that you suggested was plausible, and that concerned an important matter. What would you do if someone offered you detailed reasons for thinking that your hypothesis rested upon a claim that was not true? Shouldn't you then investigate the matter, to see whether the reasons offered were sound, in which case you should conclude that your hypothesis was not plausible. The “Update,” however, does not provide any reason for thinking that Brian has any intention of looking into the matter further – something that could be done quite simply via further correspondence with Ed Erwin.

3. My Comments on Professor Leiter’s Remarks 

I thought that Brian's commentary was problematic in certain respects, so I wrote a short piece, which I sent to Brian, asking if he would post it on his blog. His answer was that he would not. In any case, here are my thoughts.

Brian Leiter's Commentary

One of the most important issues raised by Professor Ed Erwin's letter concerns the practice of blacklisting, a practice that is rapidly growing within the philosophy profession. On that matter, Brian is forthright and vigorous in his condemnation of the practice, expressing his agreement with Ed Erwin at the beginning of this comments, and then strongly repeating his view at the end:

"Notwithstanding that, and notwithstanding that I find the plaintiff's narrative plausible, I want to reiterate that Professor Erwin is correct:   whatever the precise nature of Professor McGinn's misconduct in this matter, he should not be blacklisted from the profession, from publications, or from professional events.  He has been sanctioned by the University of Miami for his misconduct, losing his job.  Let him, and anyone similarly situated, contribute intellectually and professionally to the extent he is able.”
In my view, these remarks on blacklisting are very welcome indeed, for although many might well agree with Brian's comments, I suspect that relatively few people would be willing to express their agreement in the present climate. So Brian is very much to be commended on this matter.
In between his opening and closing remarks on blacklisting, however, Brian's commentary seems to me less satisfactory, both with regard to what he says, and, more importantly, with regard to what he doesn't say.

As regards the former, consider the following passage:

"A large part of Mr. Isicoff's examination consists of showing the plaintiff e-mails and asking questions of the form (my language, not his obviously), "Why were you so nice in this e-mail to Colin McGinn instead of telling him to fuck off if he was really harassing you?" 

Are questions of this kind unreasonable? I would think they were perfectly appropriate. But Brian formulates this sort of question in his own words, and, indeed, in an expletive-added way. Why do that, rather than simply quoting a couple of Mr. Isicoff's own questions from the deposition?

What seems to me much more important, however, is the absence of any comments on the following matters.

(1) McGinn's Loss of his Job

Brian, as quoted above, says “whatever the precise nature of Professor McGinn's misconduct in this matter, he should not be blacklisted from the profession, from publications, or from professional events.” Again, I want to commend Brian on this statement.  But what, then, about McGinn's losing his job? Was that a just outcome? Does Brian think that McGinn's loss of his job was “proportional to the offense,” or not?

(2) A $16,000,000 Lawsuit

Suppose that you were one of the parties named in a lawsuit where the damages claimed turned out to be of the order of several million dollars. How would that affect you, and your spouse if you were married?  Unless you were a rather unusual person, the emotional impact would surely be quite significant.  What about the financial impact? Unless you were yourself a trial attorney, I think that you would probably want to hire a very good lawyer. How much might that cost? One friend, who has had some personal experience in this area, estimated that the cost would probably be in the range of $60,000 to $300,000, depending on the complexity and the length of the case. So here one would like to know, then, whether Brian thinks that a lawsuit, asking for damages that turned out to be of the order of $16,000,000, was justified.

(3) The Inclusion of Professor Erwin in the Lawsuit

One thing we learn from Ed Erwin's letter concerning the case is that Ann Olivarius, the plaintiff's lawyer, sent a letter to Ed Erwin's lawyer, agreeing that the case against Ed Erwin did “not require litigating” Nevertheless, she proceeded to do just that. We also learn that the judge in the case not only dismissed all charges against Ed Erwin, but did so “with prejudice.” So here my question is whether Brian thinks that including Professor Erwin in the lawsuit was justified.

(4) Things That Tell Against a Common View of the Case

In his letter, Ed Erwin lists five things that might well seem to tell against a common view of the McGinn case:

"Several things came out during the plaintiff's deposition that tell against received opinion on this case. These include: (a) the plaintiff swore under oath that she never viewed the infamous "handjob" messages as referring to masturbation (b) the plaintiff made repeated favorable references to "handjobs", "grips" and related matters herself in her correspondence with McGinn (c) the plaintiff sent numerous messages to McGinn that the university took to demonstrate that there was no sexual harassment but rather a consensual romantic, non-sexual relationship between them, (d) although the plaintiff showed several people at the university some messages that McGinn had sent her, she never showed anyone (including her mother, her own attorney, and, as he testified, her boyfriend, Ben Yelle) most of the text messages she had sent McGinn (e) the plaintiff later claimed that her reason for neglecting to show anyone her text messages to McGinn was that someone spilled beer on her phone. She did not produce the phone.”

What I wonder about here, then, is whether Brian agrees, or disagrees, with the claim that these things tell against the “received opinion on this case.”

In Conclusion

The above seem to me important matters, so it my hope that Brian will say, at some point, what his thoughts are on them.