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Tuesday, April 03, 2018


That's the title of the second panel in the upcoming conference on The Future of Legal Scholarship - and I, alongside Carissa Hessick and Eric Segall, am speaking on this panel. In preparation for the panel discussion I've been rereading Carissa's symposium contribution, TOWARDS A SERIES OF ACADEMIC NORMS
FOR #LAWPROF TWITTER as well as prawfblawg posts by Chris Walker , Paul Horwitz (article here) and others about the value of being a tweeting, blogging, op-ed writing #lawprof. My general views on this should be revealed from action: I am on twitter (follow me @orlylobel), I obviously blog here - I was brought on as a permanent blogger early in my teaching career by our beloved Dan Markel who believed in the value of law professors connecting, networking and sharing their ideas and thoughts more frequently than through the law review system - and I like writing op-eds, though they always relate to my scholarly law review / book writing, for example this NYT op ed and this one

My feeling about all of these activities is that in general they enrich and support a strong scholarly agenda in several ways: 1) You get to test your theories and arguments in front of a broader and more diverse set of readers, including academics from other fields, law professors you normally don't interact with and wouldn't naturally be the readership of your law review articles, journalists, attorneys, the general public, and each of these networked exchanges can make you in fact more nuanced and add to the complexity of your thinking (which is of course the opposite result from the one often cited as the risk of these forms of writing -- that one loses nuance, depth, and complexity - I guess these opposing views are at the core of what we might open ufor discussion during out panel). 2) You learn more, and quicker, about new developments happening in your field. For example, I write about employment contracts and thanks to a broader readership I get to hear about contractual variances, situations and disputes that I wouldn't be able to get to just by reading the case law or even by collecting field data or conducting surveys about corporate practices. 3) You get to have an impact on policy and public debates. When I wrote Talent Wants to be Free (Yale Press) a few years back I argued that non-competes were used broadly but that no one was paying attention. I argued that the media and policymakers were debating the scope of intellectual property while ignoring the expansion of other kinds of knowledge and information being confined and propertized through contract. I am not entirely sure why this changed quite quickly after the book was published, and I most certainly don't claim to have magically created the interest in the topic, but suddenly soon after the media was vigorously covering the topic of non-compete and I got to comment and refer journalists to my book, and in 2016 I was invited to speak at the White House about my non-compete research, became part of the President's policy team working group on the topic, culminating in a President's Call for Action to the states on non-competes. That was cool. 4) As a variant of the argument that "law professors are people too" how about: law professors are writers too. You get to vary your writing style, eventually having a positive impact on your law review writing style [at least that's the direction it worked for me -- writing the shorter popular pieces reminded me that law review articles are also better when they don't rely on professional jargon and are written for people to enjoy the reading rather than suffer and feel good because they are suffering, hence, working and learning?...]. 5) And then, yes, law professors are people too. We live in the world and law is a political discipline. I subscribe to Hessick's and others' calls to remember that as professors we implicitly yield authority and assert our expertise when engaging online and beyond. But I do think that as scholars and teachers and institutional leaders in higher education we want to be engaged citizens. 

The conference is this Friday so I'd love your thoughts, comments, ideas to help further the discussion. 

Posted by Orly Lobel on April 3, 2018 at 07:06 PM | Permalink


I hope you have a fine panel session. Although I'm less sanguine about some of these things and personally loathe Twitter (while remaining on it and using it more frequently these days; the fault is mine), I have no problem with anything you've written above. But I hope you'll talk about some of the costs, if you perceive any, as well as the benefits. One thing I would ask about, since you talk about learning more and faster, is the signal-to-noise ratio of social media.

The other, possibly more interesting question I have is about your last sentence: "But I do think that as scholars and teachers and institutional leaders in higher education we want to be engaged citizens." It's not clear to me that we want to be engaged citizens because we are scholars, teachers, and institutional leaders in higher education, as opposed to wanting to be engaged citizens for other reasons. But even if it is, I wonder whether the desire to be engaged citizens really requires us to be engaged citizens *in our roles as* scholars, teachers, and institutional leaders in higher education. I believe strongly in the faculty obligation to take part in faculty obligation, but part of my role as a faculty senator has been pushing back against faculty desires to make statements about issues that have little to do with higher education and on which vanishingly few of the faculty members (including many of those pushing for some statement or other) have any special expertise. My role as a teacher, at least as I perceive it, often calls for me *not* to be an "engaged citizen" in the classroom, depending on what being an engaged citizen means; rather, it calls for me to give students the kinds of information, arguments, and skills they might need if *they* want to be engaged citizens, including being engaged citizens who take views strongly contrary to mine. And there are times when I think public discourse and democratic practice would be better if "scholars" deliberately spoke as citizens, not as scholars, and without evoking an ostensible authority they do not always have. In short, although the sentence sounds thoroughly unobjectionable and I enjoy its energy and optimism, I think it would benefit from some unpacking. (I acknowledge in advance that whether it is possible to separate these roles completely is a fair question. But it is possible to separate them at least to some degree, and I think often advisable.

These are, I hope it's clear, friendly questions. Again, enjoy the panel.

Posted by: Paul Horwitz | Apr 3, 2018 9:45:08 PM

...faculty obligation to take part in faculty governance." Pardon the typo (and all the other typos I won't look for).

Posted by: Paul Horwitz | Apr 3, 2018 9:45:56 PM

...faculty obligation to take part in faculty governance." Pardon the typo (and all the other typos I won't look for).

Posted by: Paul Horwitz | Apr 3, 2018 9:46:07 PM

Paul asks some good questions.

Posted by: Orin Kerr | Apr 3, 2018 11:12:20 PM

Thanks for the above Paul, I agree with Orin, these are some good questions. I think I would make a clear distinction between what we need to do in the classroom as teachers to be effective and oftentimes that includes being disengaged in the sense of moderating our students' views and including many views and counterviews in the conversation; i guess that's what you referred to in your post as intellectual pluralism. But outside the classroom, even per our role as teachers, I think we benefit our students by modeling engaged citizenship. I agree that separating our identities and roles out between citizen and scholar is tough and that's why I like Carissa's call for extra-scholarship engagement norms because of the inevitable implication of some of authority. I'd be happy to hear more about how to separate the hats and signal that you are speaking as a citizen not scholar. But in any event, as I mention above, for op-eds and most of the time when blogging I tend to actually stay within my areas of expertise.

Posted by: Orly Lobel | Apr 4, 2018 3:07:34 AM

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