What Makes a (Legal) Academic

The legal academy has long had an identity crisis, and there is decreasing faith among many Americans in the academy generally.  A more deliberate, more cooperative discussion about what makes a legal academic — and what separates an academic from an advocate, social commentator, activist, or politician — would go a long way to ameliorating some of the, often well-founded, credibility concerns.

The legal academy’s project sits at the intersection of the academic’s general search for truth, the practitioner and the judge’s desire for synthesis and illumination of legal doctrine, and the lawmaker’s goal of reform.  This uncomfortable intersection makes legal scholarship valuable, so long as legal academics distinguish themselves, both as legal experts and as academics.  A true distinction requires that legal academics both use the skills they uniquely possess and approach their scholarship and teaching with intellectual honestly.


Legal academics make contributions in many media, using a variety of methodologies, and with different combinations of descriptive, normative, practical, theoretical, critical, and interpretive purposes.  In my view, what primarily separates the academic from the advocate, activist, or generic legal commentator is a commitment to intellectual honesty. This requires a candor about the shortcomings of one’s interpretations and proposals and an openness to rethinking them that is all too lacking in social and political discourse.

Advocates, politicians, and even some journalists advance the strongest form of their arguments, often presenting opponents in an uncharitable light, taking quotes of out of context, or cherry-picking evidence and arguments to fit a particular narrative.  This creates pathologies in discourse, unsophisticated political solutions, and angry partisanship.  The legal academic, by contrast, has a duty not just to intellectual rigor, but to intellectual candor and openness to exploration.  The academic enterprise is compromised when a scholar is so dogmatically devoted to outcome that it creates serious blind spots in presentation and reasoning.  Academic freedom is granted for those engaged in academic inquiry. The privilege of academic freedom comes with a responsibility to share the necessary information for a reader to make up her mind, not mislead the reader into adopting the author’s perspective.

Enlightenment, not persuasion, of herself, her readers, and her students, should be the primary focus of a legal academic.  This does not mean a scholar cannot have a view, and even a strong or extreme view.  (Many believe my views about the First Amendment are extreme.)  But when a professor enters a classroom hoping to make students see things from her perspective, or when a scholar is not open to changing his mind, regardless of facts, reason, or evidence, the professor is no longer engaged in the academic enterprise.  I am often gratified when, taking a vote after teaching a case, a majority of students disagree with my perspective on the case – but, of course, I am also a bit disheartened.  I must struggle constantly against the very natural desire to abuse my position as academic.

Legal academics should also, without respect to outcome, use the skills unique to lawyers – legal interpretation, harmonization of case law, and organization of ideas or cases into principled, logical frameworks – at least as much as legal academics argue for particular legal reform.  Scholarship can be, and often inescapably is, normative.  However, law professors should approach their scholarship as lawyers, not simply reformers, with at least some incorporation of process-based, analogical reasoning and systemic thinking.  Interdisciplinary and critical scholarship can combine legal methods with a more theoretical approach, but the legal academic endeavor should highlight skills that lawyers have, not skills that any political commentator or talking head could marshal.

Of course, this raises the question of when legal academics must act like academics, and separate themselves from activists.  Academics add value when they turn their writings into amicus briefs, but I believe their primary work should be scholarship, not advocacy.  Twitter, a medium which I also use, is heavily frequented by legal academics, but often does not foster or even allow for circumspect, reasoned, dispassionate analysis.  Overly partisan tweets outside of an academic’s area or bickering, with other professors or the general public, are unbecoming facets of Twitter.  Tweets designed to simply cleverly express a view already held by one’s followers, for the purpose of ossifying positions, seem at direct odds with the academic pursuit.  Professors are people too, but when our Twitter accounts are connected to our status as professor, lines are blurred, and academic credibility is lost.  (I’m honestly not sure what the solution to that problem is, and of course we shouldn’t be restricting professors’ use of Twitter, but perhaps promoting better norms.  I am guilty of “like-seeking” behavior.)

Being a law professor is, in my view, the best job in the world.  I am fortunate to be surrounded (and bested) by inspiring intellect, dedication to students, and commitment to excellence and justice.  Teaching is the greatest privilege.  I do fear that we academics lose our way, without the constraints of a unifying methodology or even a truth-seeking goal in mind.  Increasing viewpoint diversity among professors and students will help keep all of us honest and improve academic rigor.  Conversations such as this one will hopefully manifest our good-faith desire to be the best academics we can be.  Transparency about what we are doing, and our true value, are critical in the face of politicians who wish to curb academic freedom and citizens who believe academia is fundamentally a place of indoctrination.


8 thoughts on “What Makes a (Legal) Academic”

  1. Really? A majority of students disagree with your views about freedom of speech? In what way in particular? It seemed to me that your views weren’t that far from controlling supreme court precedent and if those are generally disagreed with by the next generation of lawyers that is concerning.


    1. Peter, I would say a majority of professors who write on the issue disagree with me on contested issues involving the extent of speech protections, and that I see an increase among students of those who view the harms of speech as often outweighing speech protections.


  2. I think if the academy could prove there are objective definitions of the bill of rights, for instance, and not just competing interpretations (of say the first or second amendment), that would go a long way to convincing people that academics have a knowledge in the same way that professional academic physicists have a knowledge that amateurs don’t have.

    I think a lot of people read supreme court opinions and dissents and think both sides are giving equally valid competing interpretations, and not factual objective accounts that are clearer more true than the other side.

    If one side could prove definitely once-and-for-all that the first amendment means this or that– and we can finally put that issue to rest and not keep litigating it every few years (like with separation of church and state)–that would convince people there are legal facts and those very legal facts are what legal academics study and teach.


  3. Perhaps the reason people don’t think legal academics don’t have any expertise in objective knowledge (like a chemist) is that when you ask them, say, what the ninth or tenth amendment means, they’ll tell you that the democrats think it means x and the republicans think it means y, and no one is right or wrong–what the amendments mean has nothing to do with their text or legal tradition or common law, but is a matter of one’s personal values and morals.

    That may be true, but if it is, then there’s no “unchanging law” to have any objective knowledge over. If there’s no law outside of our personal values and morals, then there’s nothing to have objective knowledge on in the same way a chemist has objective knowledge about unchanging chemical compositions and solutions.

    If there are no absolutes in law, (there are even exceptions to the equal protection clause like affirmative action), like there are in physics or biology, and those exceptions are even more determined by one’s values and morals than the amendments–that makes the law look like one’s subjective interpretation of ephemeral legal phenomenon and not objective knowledge one can have unbiased expertise in.


  4. “In my view, what primarily separates the academic from the advocate, activist, or generic legal commentator is a commitment to intellectual honesty.”

    Is there a way to know who’s been intellectually honest without recourse to one’s values and morals? In Lopez and Heller, was Scalia or Stevens being intellectually honest? Could one have been both intellectually honest and wrong on the constitutional questions?


  5. Which academics are praised as objective-unbiased experts on both/all sides of the political spectrum that everyone agrees would make great supreme court justices?

    Which supreme court justices are praised as being non-partisan experts by both sides?

    What book would you point to as an objective unbiased description of the bill of rights that serves as a foundation for non-partisan education of the law?


  6. Which court opinions do you think best represent an unbiased non-partisan description and application of the law that shows academic expertise that everyone can appreciate?


  7. Do you find 9-0 opinions more intellectually honest than 5-4 opinions, regardless of who wrote them?

    What opinions did you agree with the outcome on, but thought were intellectually dishonest? How would you have rewrote them so they exemplified non-partisan expertise?


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