Guest Column by Penn Law School Alumnus Daniel Markind | The Amy Wax and Jonah Gelbach feud is unbecoming

The intellectual “blood feud” between Penn Law School professors Amy Wax and Jonah Gelbach erupted again, to the detriment of everyone concerned.  As a Penn Law alumnus, a member of the Law Alumni Society, and the Reunion Chair for my class, I claim a vested interest in this and strive to keep our class informed. However, I speak entirely for myself.

Without rehashing the controversy (which you can review for yourselves), I find the actions of both Professor Wax and Professor Gelbach to be disingenuous and beneath the conduct we should expect from professors at our school.

Professor Wax’s initial piece in the Philadelphia Inquirer was quite provocative. That’s not unusual for law professors. I feel she went beyond the bounds on Feb. 16, however, when without substantiation, she accused Dean of Penn Law Ted Ruger in the Wall Street Journal of asking her to take a leave of absence. She also claimed that Dean Ruger told her that he was getting “pressure” to banish her for her unpopular views. Dean Ruger denied both and said his conversation with Professor Wax was about a routine sabbatical that she was entitled to take.

I have never met either professor so I have no stake in that sense. If Amy Wax did misrepresent her private conversations with Dean Ruger, then shame on her. A dean must be able to have private conversations with professors without these finding their way into the press. Otherwise, we lower ourselves to the same level as our broken political environment. Professor Wax certainly got press mileage out of her claims. If, and I say if, Professor Wax used those private conversations to score political points and raise her national stature, then this is not conduct befitting our faculty.

Regardless of what you may feel about Professor Wax, I find Professor Gelbach’s conduct to be disturbing.  He directed the open letter against her that was signed by 33 members of the Penn Law faculty. Reading that open letter was the first time in the nearly 40 years I have been involved with Penn Law that I truly felt embarrassed for the institution. Professor Gelbach’s article on Friday, Feb. 22 in The Daily Pennsylvanian on Friday marks the second time he has responded to Professor Wax via a personal attack. That is both his choice and, I believe, unacceptable. 

Back in August, Professor Gelbach had numerous ways to respond to views with which he disagreed that would have been beneficial to all and helpful to the students. He could have written a rebuttal. Better yet, he could have organized a symposium with Professor Wax to publically debate the pluses and minuses of the “bourgeois values” Professor Wax admires. He chose neither course. The language of the open letter, in which all 33 professors stated they “categorically reject Wax’s claims,” was facile. Professor Gelbach’s actions needlessly split the faculty.

Professor Gelbach subsequently wrote a long critique of Professor Wax’s article in Heterodox, but only after organizing the open letter and gaining his own headlines. Professor Gelbach claims that Professor Wax cannot be trusted. He should examine his own actions.

For our Law School to be true to its principles, all professors and lecturers, especially those without tenure, must be free to express their views without intimidation or fear of retribution. If Dean Ruger has not made that absolutely clear, he needs to do so. The cause of academic freedom, which I believe to be at the heart of the Law School’s mission, is harmed when a self-appointed professorial constabulary attempts to enforce its own political orthodoxy. 

Our faculty members can argue with and detest one another, but they must respect each other. Each has been given the honor of joining the faculty at one of the world’s great law schools. Start acting like it.

DANIEL B. MARKIND is a partner at the Philadelphia law firm of Weir & Partners LLP and is an alumnus of the Law School.