“Charging Bull” versus “Fearless Girl,” and Ideological Diversity in Legal Academia

A public relations battle between Arturo Di Modica, the creator of Wall Street’s “Charging Bull” statue, and New York City Mayor Bill de Blasio highlights the difficulty of separating ideology from principled reasoning.  This difficulty is also rearing its ugly head in legal academia, which skews more liberal than the already liberal-skewing legal profession.

To combat this problem, affecting everything from Supreme Court nominations to our polarizing society, we need to hold each other more accountable for acknowledging facts and arguments that don’t support our positions.  We need to face the charging bull of our own senses of justice, which can destroy sound reasoning and viewpoint diversity.

Di Modica has threatened legal action against the city after a financial firm unveiled a new statue, Fearless Girl, which stands defiantly right across from the bull statue.  Now, instead of optimistically honoring prosperity, Di Modica’s statue represents the villainous force of the patriarchy.


My sympathies lie with Di Modica – especially because I disagree with the substance of Mayor de Blasio’s response and his tactics.  In response to Di Modica’s complaint about the re-appropriation of his statue, which he installed as a rare act of capitalistic guerilla art, Mayor de Blasio tweeted, “Men who don’t like women taking up space are exactly why we need the Fearless Girl.”  The mayor’s comment is a crass (and successful) pander to those who enjoy converting any instance where a woman (or statute of a girl) may be disadvantaged into an instance of sexism, regardless of whether there is evidence of discrimination.

Di Modica’s desire to remove Fearless Girl likely has absolutely nothing to do with sexism; he disagrees with Mayor de Blasio about the effect of capitalism on America’s prosperity.  Di Modica wanted his bull statute to represent “freedom in the world, peace, strength, power, and love.”  I agree with Di Modica and find Fearless Girl somewhat obnoxious.  Capitalism and feminism are not necessarily at odds; capitalism unleashes great human potential, including women’s potential, that has often led to increased freedom.

However, my principles on the legal issue skew the other way.  The United States does not protect artists’ rights in the same way as Europe or Canada, because America has stronger First Amendment liberties and market-based rights that allow for satire and the alienability of artistic works.  At this early stage, I believe Di Modica cannot successfully marshal the Visual Artists Rights Act or copyright law to force New York City to remove Fearless Girl (I will blog more on this if/when a lawsuit is filed).  Although I think Mayor de Blasio should move the statue, I think it’s a good thing that Di Modica is unlikely to win in court.  The “moral rights” given to artists in Europe and Canada stifle the free marketplace of ideas and the free economic marketplace.

The conflict between my ideological sympathies in a particular case and the larger edifice of my principles is one that people in many roles face.  Judges must put aside their ideological and political priors and decide a case based on precedent, rigorous legal analysis, and the facts at hand.  Politicians must often decide whether to vote their consciences or please their base.  Legal academics, in deciding whom to hire and promote, need to assess scholarship based on sound legal reasoning, not simply applaud work that manifests their own views or endorses causes they support.

As a legal academic, I can tell you this is no easy feat, even though I am especially committed to viewpoint diversity in academia.  I currently sit on a committee tasked with deciding which of our professors should receive a scholarship award, and it is difficult for me to reward scholarship that undercuts First Amendment rights or advances arguments that offend my ideological sensibilities.  Especially in a field like law, where there are legitimate disagreements about everything from abstract methodology to the prudence of particular legislation, assessments of quality become very subjective.  But, as legal academics, separation of reasoning and result is critical.  I must judge my colleagues based on the thoroughness of their research, the freshness of their ideas, the feasibility of their proposals, and the clarity and sophistication of their analysis.

Unfortunately, as an academy, we are doing a terrible job of this.  Viewpoint diversity in academia is woefully absent.  Law schools are fairly ideologically homogeneous.  There are many potential causes for this problem, although I believe that self-selection may actually be part of a vicious cycle.  If academia doesn’t tolerate a certain set of views, those with those views will be discouraged from entering the profession.  As legal academics move farther and farther away from aspiring to teach law in an objective, nonpartisan way, forgoing disseminating knowledge and skills in favor of advancing their own notions of “justice,” this problem is exacerbated.

Law professors do not have to silence their own views, although I often think their partisan approaches undermine the spirit of the academic venture.  What they do need to do is note whether they only ever express views or share facts that support their ultimate ideologies.  Most importantly, they need to do better about not rejecting sound reasoning and important ideas because they disagree with those ideas – or academic institutions will become think tanks and advocacy groups instead of legitimate places of higher learning.  Law is an important profession, and our schools need to arm students with the tools to engage with citizens of all races, religions, ethnicities, and political affiliations.

2 thoughts on ““Charging Bull” versus “Fearless Girl,” and Ideological Diversity in Legal Academia”

  1. Let’s say a private building commissions a cross in front of their building. Then ten years later they commission a fire ten feet in front of the cross. From the sidewalk as you walk between the two, they appear as two separate art exhibits, but if you drive by the building, the fire that is in front of the cross looks like it’s part of the same exhibit as the cross. So the maker of the cross sues, because his art has been changed by the fire built in front of it, that makes it look like a burning cross. Has his rights been infringed by changing his art?

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    1. This is a great scenario, and doesn’t present a fact pattern that different than the Charging Bull fact pattern, except that the cross statue is now part of something far more objectionable. However, works for hire are generally not subject to the Visual Artists Rights Act, so the artist would need to be an independent contractor. But assuming a fact scenario similar to the one we have, VARA protects against the destruction or mutilation of a work in a way that prejudices the artist’s reputation or honor. My guess is a court would say that this work hasn’t been destroyed by placing another sculpture close to it, but it remains an open question, and the cross burning example could be a close call. All of the cases I have seen the court confront involve removing a statue from its larger context (which is destruction of the art), not adding a statue. Additionally, Di Modica can simply remove his statue, so that undermines his claim.

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