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Wednesday, May 23, 2012

Are Middle-of-the-Pack Public Law Scholars the Most Impartial?

My last post moves me to pose this question, which I have been thinking about on and off for some time. I should emphasize up-front that I am not convinced the answer is yes, and that this post is intended to provoke reflection and discussion rather than because I am making a strong truth-claim. But I think there is an element of truth in the thesis. (And, obviously, I would be more than happy to disclaim the entire thesis for the right offer.)

To generalize, I think we are all reasonably familiar with public law scholars (I focus on them because 1) they deal with a host of hot-topic issues and 2) it's my field) who are both highly partisan and not "highly placed"  in their field. (I take the idea of being highly or non-highly placed at particular law schools as a given here, without endorsing that state of affairs altogether.) I stress that this by no means characterizes the entire stock of public law scholars at lower-ranked. I don't think that's true at all, and I'm not trying to be rude or dismissive. But I think it does happen and is observable.

It is also true, I think, that there are many highly placed public law scholars at elite law schools who are also highly partisan -- some of them subtly so, some of them quite openly. Both in public and behind the scenes, they are highly active in a host of activities including party activities, advising presidential campaigns or administrations, writing op-eds and other public statements that help massage public messages, fighting for or against judicial nominations, and so on. This is not true of every elite public law scholar; far from it. But again, it's a noticeable phenomenon. This is not a comment on the quality of their work, which is often brilliant. But it is a comment on the nature and aims of their work and on their public personae.   

Is it possible that neither affliction is as common or observable in public law scholars who occupy what we might call the middle ranks? They have risen as high as they have because they've demonstrated a sufficient proficiency in doctrinal or theoretical analysis, they've published reasonably well and often in their field, they do creditable work. They have a fairly conventional view of their scholarly role. But neither have they risen so high, on the whole, that they are 1) asked to participate all that often in more openly political work or 2) likely to get much notice if they do. Nor, importantly, are they exposed to some of the grittier realities of national politics. What they get by way of information, they get from the newspapers. They are not party to the inner dealings of party and/or movement affairs, to backroom talk about judges, to lobbying, and so on. They do not demonstrate the particular profile of some of those who have attained the highest positions in their field: namely, a combination of both brilliance and a political orientation, with a strong dollop of connections to power centers. They must perforce think of themselves as academics -- just academics, but, if they are lucky, compleat academics. I can think of many public law scholars in roughly my position in the academy who seem to exemplify these traits, and fewer exceptions.

Obviously, there are all kinds of counter-examples and counter-arguments. As I said, I'm inviting reaction rather than making a strong truth-claim. I should also say that I don't offer this as praise, let alone self-congratulation. Although I think there are a number of highly political elite public law scholars, I also think those scholars do brilliant work (albeit work that must be read with an appropriate degree of caution) and deserve to be where they are.

Moreover, it seems to me from the perspective of both role identity and incentives that if these middle-ranked scholars are more likely to be non-political in their work, it's because that's where their best incentives and most ingrained habits lie. And there's no point congratulating these people for avoiding the seductions of politics if, by virtue of their relative positions, no one is inviting them to be seduced.

Finally, I am also aware of the "Betas are so much better than Alphas or Gamms" element of this position, similar to the phenomenon of self-perceived members of the middle-class always convincing themselves they're better off being neither rich nor poor. Still, I think that for a variety of structural and other reasons, there is some argument for my thesis.     

Posted by Paul Horwitz on May 23, 2012 at 11:14 AM in Paul Horwitz | Permalink


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I don't think this bears scrutiny, including because the middle ranks are more likely not have "risen" at all, but simply may be lodged where they started. It is much more likely that partiality is evenly or randomly distributed.

This said, perhaps you are observing partiality differently, depending on rank. Among lower-ranked or less well recognized scholars, you may be treating their views as less grounded in expertise, and thus more political. Among higher-ranking or better recognized scholars, you may be reacting to the tangential relationship between their work/academic standing and the matters on which they are pronouncing, or simply recognizing with disappointment that their views on high-profile matters are pretty much the same as so many others . . . in reality, not being all that distinguished.

Posted by: Me | May 23, 2012 1:45:52 PM

I don't think I see this trend, although it's an interesting idea. It might be true that some scholars at the top are less concerned with looking silly to the rest of academia because they just don't think they can, while scholars in the mid-rank are more aware of the need to guard their reputations.

Posted by: Orin Kerr | May 23, 2012 10:08:01 PM

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