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Monday, April 02, 2012

Is Strategic Blogging by Legal Academics Exculpatory?

Dave Hoffman has an interesting post at CoOp titled "Motivated Cognition and the Mandate," about the nature of legal blog posts about the ACA argument last week. It also occasioned some quite fair disagreement on underlying facts. Setting those aside, I want to focus on one part of the addendum to Dave's post. He writes, in response to the argument by Ilya Somin that some liberal legal bloggers last week erred in claiming that the case was an easy one for the government: "There are, of course, many, many examples of liberal commentators predicting this was a slam dunk case on the merits. . . . But there are at least two exculpatory possibilities that Ilya might want to address: (1) like Barnett pre-Raich, such commentators were trying to shape the narrative by displaying more confidence than they felt. . . ."

To be clear, I assume Dave means exculpatory of the specific charge, not generally exculpatory. And it should be added that he is hardly the only person to suggest that a number of bloggers last week were "trying to shape the narrative." My sense, though, which may be wrong, is that a number of people who made this observation did have the general view that such conduct was generally exculpatory of the most critical claims made against these writers, or at least not inculpatory. Is that right? Should strategery be a defense to somewhat extravagant blogging by legal scholars on a contested issue?

This reminds me of the debate over scholars and amicus briefs that occurred a while back in response to a recent paper by Richard Fallon. Quite a few people took a more forgiving view of these matters than Fallon did, although I side with Fallon on this. One might well think that if the standards for impartiality in scholarship apply differently to amicus briefs, then they sure as hell are lighter or inapplicable for blog posts. I'm not quite sure this is right. In either case, I think the focus on the medium is incorrect. The relevant question is one of message, not medium. A scholar who writes an amicus brief that is plainly intended as an act of advocacy can be understood to be doing just that, and his or her claims can be evaluated and/or discounted accordingly. One who writes an amicus brief that, for reasons of persuasion, adopts a false air of impartiality or relies heavily on the scholar's (or signatory's) reputation and expertise as a scholar while saying (or omitting) things that a scholar wouldn't say (or omit) in his or her scholarly work is not just engaging in open advocacy; that person is also using his or her reputation as a scholar to work covertly and for non-scholarly ends. I continue to insist that there is something wrong with this.

I think something like the same conclusion ought to apply to blogging. Of course everyone already discounts for the medium. But there is still something wrong about yoking one's reputation as a scholar and expert to the non-scholarly end of "shaping the narrative." I'm not accusing anyone of doing this last week, although frankly it seems pretty evident to me that it happened and has happened before. And, clearly, not everyone believes there is something wrong with doing so. But I think there are good reasons to be disturbed by such conduct.

Does that mean no scholar is permitted to try to "shape the narrative" through blogging and other commentary, or that there's something wrong with having a normative legal or political view about such cases and sharing them? Of course not. But it does say something about how one ought to do so consistently with one's obligations as a scholar. The basic principle, it seems to me, is that your message, and the purpose of your message, should be clear. Someone who writes that current law clearly means X should mean what he or she says; "shaping the narrative" is no defense to asserting with confidence a view that one doesn't really believe, or doesn't believe with that degree of confidence. But one can always make clear, implicitly or explicitly, "This is my view of what the law should be, not what it clearly is under current law," that one is urging a particular result rather than offering an impartial analysis of the issues, and so on.

I can think of a number of posts about the ACA from legal scholars last week that were clearly and openly offered as advocacy and did a fine job of it. And I can think of others that were clearly not offered as advocacy at all, and said useful and interesting things about the oral arguments. (I would put Mark Tushnet's posts in this category.) But I do believe that some posts last week traded on the authority of their authors, made overconfident or disingenuous claims about the state of current law and the strength or weakness of opposing arguments, and did so for strategic reasons. I see those reasons as more inculpatory than exculpatory. I don't see the minimal requirements for scholarly integrity that I offered as changing because of the medium, or because of the importance and currency of the case.

Again, that doesn't mean legal scholars can't act as advocates. But if they can't do so openly--if they think it would somehow undermine the effectiveness of what they're writing if they preface their claim with, "Of course I'm writing this as an advocate and not a scholar; if I were writing this with my expertise or authority as a scholar one the line, I would say something different"--then I would suggest that they are, in fact, doing something wrong.

Posted by Paul Horwitz on April 2, 2012 at 11:21 AM in Paul Horwitz | Permalink


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Paul, isn't that one of the meta-issues in legal scholarship - that there is no bright line demarcation between scholarly advocacy and political advocacy? Every time you write an article or an essay with a thesis, you are advocating the correctness of the thesis. There are certainly clear examples of one versus the other at the ends of the continuum, but there's a whole lot of gray in between.

And isn't the other meta-issue in legal scholarship that there is no bright line demarcation between normative theses and descriptive theses? Or to put it otherwise, and to crib from Dennis Patterson, what makes a legal proposition "true"? [I pretty much agree with Dennis's conclusion that it's a mistake to treat any legal proposition as having a truth value.]

And isn't all of that complicated by the fact that even in the physical sciences, and certainly in the social sciences, there's less consensus about any demarcation between normative and descriptive than there once was (i.e. Popperian falsification as crisp demarcation gives way to Kuhn and Putnam on theory-ladenness)?

So my reaction is not so much that there's a problem with what you call advocacy. It's more that much of what passes as legal scholarship is no less advocating a normative view than "in your face" political rhetoric.

Posted by: Jeff Lipshaw | Apr 2, 2012 12:44:19 PM

"But I do believe that some posts last week traded on the authority of their authors, made overconfident or disingenuous claims about the state of current law and the strength or weakness of opposing arguments, and did so for strategic reasons."

I disagree. I think liberal commentators were perfectly sincere in their analysis of the state of current law and the strength and weakness of opposing arguments. And since current law has not changed in the past week, these arguments remain as valid as they've ever been. All that has changed is that the five conservative members of the Supreme Court have tentatively expressed their views on the issue.

This entire post (like Somin's and his co-bloggers') seems to be based on conflating (1) the merits of the arguments with (2) the likelihood that they would be accepted by the five conservative justices. After Bush v. Gore, it should be obvious that these are two entirely different things.

Posted by: AF | Apr 2, 2012 12:52:16 PM

"Should strategery be a defense to somewhat extravagant blogging by legal scholars on a contested issue?" I'm concerned that the attitude you're referring to goes beyond blogging and amicus briefs to actual scholarship. I.e., I'm concerned that there is an attitude that if lobbyists or politicians or advocacy groups make some extravagant claim X on issue N, then it is acceptable to make hyperbolic or tendentious claim Y with respect to issue N, where Y is in tension with X.

Posted by: Bruce Boyden | Apr 2, 2012 1:24:18 PM

An interesting comment. It would be useful, I think, if you could be more specific about angels and demons -- "But I do believe that some posts last week traded on the authority of their authors, made overconfident or disingenuous claims about the state of current law and the strength or weakness of opposing arguments, and did so for strategic reasons." Who did you have in mind?

Posted by: dave hoffman | Apr 2, 2012 2:50:31 PM

(1) The flip side of making a controversial decision more palatable by laying the groundwork ahead of time is one can also radicalize an otherwise uncontroversial decision ahead of time as well. So constantly calling the court "conservative" can delegitimate striking down the law and whip up partisan fury for the election.

(2) While I agree with commentators above that there is, in theory, NO "bright line" available, I'm struck with what LISTENERS should do when a commentator changes his or her mind. Two days before the hearings a certain well-known commentator was predicting a 7-2 upholding of the ACA and then after the hearing said the ACA is in grave trouble. So either the shift was a POLITICAL one, or else the hearing went so different from what this commentator expected that it should make that person think twice before publicly reading the tea leaves in the future. Either way, however, we as listeners know the person either (1) is simply reiterating policy preferences with no more knowledge than the average law student or (2) is humble enough to correct a mistake but far too enthusiastic to take seriously, and perhaps not humble enough to avoid replacing one wild prediction with a second wild prediction.

Posted by: AndyK | Apr 2, 2012 4:03:28 PM

AndyK, re (2), I would hope that commentators would change their predictions as new evidence becomes available. That strikes me as a feature, not a bug.

Posted by: Orin Kerr | Apr 2, 2012 5:44:16 PM

Thank you for the interesting comments. If I can add one response, I think my answer to the questions raised by the first two comments is roughly the same for both. There is a meta-issue here about law and legal scholarship, and I agree that, at least in contested areas, claims about law are rarely truth-claims. Similarly, there is certainly a counting-to-five aspect to saying "what the law is" about contested constitutional law issues. The relevant consideration, as I see it, isn't between the truth or falsity of claims about the law, although there can be evidently false claims about what the law currently is or the degree of certainty about it. It's one of candor about what one is saying and doing, and the uses to which one is putting one's ostensible authority as an expert. After all, few of us are total naifs about the points Jeff raises, or those raised by AF. We know there can be a thin line between normative and descriptive statements, and we can at least try to be clear about the nature and premises of our arguments.

Posted by: Paul Horwitz | Apr 2, 2012 9:35:06 PM

While I agree that there is always advocacy in legal writing. This does not excuse a scholar from the obligation to clearly identify between three things: what he thinks the law should be (if he were a legislator or constitutional convention member); what he thinks the law is (i.e. how he would rule as a judge committed to the rule of law principal); and what he believes the courts in fact hold as their interpritation of the law (how the court is likely to hold). For example as a libertarian, my view is that their ought not to be a minimum wage. But as a legal scholar, my view is that state minimum wage laws that protect health and safety are allowable as a matter of federal constitutional law. But I accept that as a matter of court doctrine, that the federal minimum wage law is constitutional.

Posted by: Stephen Houghton | Apr 3, 2012 10:06:12 AM

The issue here isn't a lack of clarity or candor over the thin line between normative and descriptive arguments. I think liberals were being quite sincere and candid in their normative and descriptive claims about existing law. After Raich, it seemed quite clear that Lopez and Morrison meant what they said when they reaffirmed Wickard and limited federal authority only in the case of social-issue legislation whose relationship to the economy was highly attenuated. If Professor Horwitz thinks those of us who argued that the issue is a slam dunk as a matter of precedent are being less than candid, I'd really like him to give examples, because I just don't see it.

The real issue here seems to be, given the highly partisan nature of the political debate over the mandate, and given the current Supreme Court's tendency to divide sharply over virtually every highly partisan issue that comes before it, there was reason to believe that notwithstanding the clear state of the law the Supreme Court would nevertheless divide closely over this issue as well. The question then becomes whether scholarly candor required legal scholars who sincerely believed that existing law was clear to point out that the highly partisan Supreme Court may disagree. I would think that the general answer to that question is no.

Posted by: AF | Apr 3, 2012 11:12:32 AM

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