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.