Monday, April 02, 2018
Candor, Integrity, and the Ethics of Legal Scholarship
I was delighted to be a part of organizing and participating in the Marquette Law Review's symposium this fall on the ethics of legal scholarship. My co-organizers, Carissa Byrne Hessick and Chad Oldfather, shouldered most of the load and put together a great discussion. Carissa's paper for that conference, on law professors on Twitter, has already provoked and produced a good deal of discussion and debate. Chad's contribution to the symposium is, to use a standard law-blog cliche, typically thoughtful--and also fun to read.
I doubt my own contribution amounts to as much. It is certainly not as focused as Carissa's, although it does talk about law professors who engage in what I describe as "multi-platform" work, including Twitter, op-eds, scholars' letters, and amicus briefs as well as legal scholarship, and the potential dangers or confusions involved in doing so. And it begins with a discussion that was important to me as an institutional pluralist and may be important to those who argue over how prescriptive we should or shouldn't be about the ethics of legal scholarship, but for others will be less important. If they want more concrete recommendations and arguments, they'll want to turn to the second half of the essay.
The paper is called "Institutional Pluralism and the (Hoped-For) Effects of Candor and Integrity in Legal Scholarship." There may be a few relatively minor changes before publication. Thanks to the Marquette Law Review for letting me post this version. Here's the abstract. Enjoy! I confess I enjoyed writing it.
This Article is a contribution to a symposium on the ethics of legal scholarship, held at Marquette Law School in September 2017. It has two goals: 1) to consider whether it is possible to contribute to debates on the ethics of legal scholarship while favoring an institutional pluralism in which different forms of legal scholarship are possible and legitimate; and 2) if one concludes (as I do) that it is possible to for an institutional pluralist to hold and advocate views on the ethics of legal scholarship, to explore the implications of the core values of ethical legal scholarship that I focus on here — candor and integrity — for different models or visions of legal scholarship.
On the first question, the Article describes institutional pluralism. It rests on two propositions: 1) Various essential institutions in public life and discourse, such as universities or the press, perform distinctive functions and follow different norms. Those norms show some stability and continuity but are subject to change over time, as a result of both internal debate and external influences. These institutions should be judged primarily on their own terms, and should not be required to follow the “logic of congruence.” 2) There is room for a plurality of approaches and models within those institutions. Not all newspapers, for instance, must follow the model of disinterested reporting; not all universities must privilege the disinterested truth-seeking model over a model that favors thicker substantive goals such as justice or equality. There may be outer limits to these variations, but within them there is room for different models of and approaches to scholarship — including legal scholarship. An institutional pluralist within the academy is certainly free to argue in favor of a particular model of scholarship and scholarly ethics, but should do so with a certain spirit of modesty and charity and not insist that competing visions or approaches be expelled from the “academic” sphere.
The two core values I single out as essential to ethical legal scholarship are candor and integrity. The Article asks how those values would apply to, and improve, different models of legal scholarship. They include the normative model that remains the most common form of legal scholarship; legal scholarship that sees its primary goal as “speaking truth to power”; and advocacy or “engaged” scholarship, particularly when it involves not just traditional scholarship but the pursuit of advocacy across a variety of formats and platforms, such as social media, op-eds, and amicus briefs or scholars’ letters. In each case, I do not reject these forms of scholarship or advocacy, but insist that their authors should be clear and transparent about their goals, arguments, animating premises, and argumentative or persuasive tactics. Doing so may sometimes reduce the persuasive power of such arguments, but it will allow readers to better understand the aim of the scholarship or public advocacy and its potential limits or omissions, and judge its arguments accordingly. Some scholar-advocates may consider these rules too confining. They might consider engaging in such advocacy in a purely civic capacity, without invoking their academic positions and ostensible academic expertise or authority. In extreme cases, they may decide that they ought to leave the academy and engage in full-time advocacy.
One of the two authors of the Slate piece wrote that law review article, so we can rule out some of your possibilities. They're both friends and both excellent scholars, so I want to tread carefully and respectfully, although I still used that example. I can't speak for them, so I'll propose a couple of hypothetical responses. It may be that my reading is wrong (although it's a good-faith reading). It may be that they believe the Slate piece doesn't misrepresent the article as such, although I have noted my concern to the contrary that an average reader would take the claims made in the op-ed as authoritative although they're based on an article that is (reasonably, intelligently) normative and speculative. Or it may be that they think the kind of language used in the op-ed is standard for op-eds, for reasons of economy among other things, and that educated readers read op-eds with caveats in mind about those sorts of things. (This is partly what I'm getting at with my "everyone understands the game" passage in the article.) And it is true that every word counts in an op-ed or other short piece. I do maintain that it is possible to write at the same length while calling an argument an argument, and making clear readers understand that it's not a strong assertion about what the law "is" in a realist sense of the word; and also that it's not clear that average readers *do* take for granted some of the things that op-ed writers sometimes say they do. The Redish op-ed I use as a counter-example does it quite well and without undue length. Some of this may be imperfectly responsive to your question, but having taken the step of using a concrete example, and one involving friends no less (it's a small community), I did want to be fair to them. I agree, and I hope everyone else does, that trying to get things wrong is a matter of basic academic integrity, with a) the confession that I'm sure I have erred in this area, although of course I try not to, and b) the reservation that while one should avoid overly sweeping statements and so on, one may have a strong view about the meaning or implications of a work, and should be able to state it, while giving the evidence for one's view and being willing to alter one's view. As I say in the article, I am not trying to exclude law professors from engaging in advocacy or argument in public, or pursuing an argument across various "platforms." But I do think it raises particular dangers, and that the lodestar should be giving the reader a clear basis to understand exactly what project the writer is pursuing and why, which are strong claims and which claims are more speculative, and so on.
Posted by: Paul Horwitz | Apr 2, 2018 4:47:59 PM
Really interesting article, Paul. Your discussion of the hate speech article touches on an issue I deal with quite a bit, which is the accurate representation of sources and what implied claims an author makes when they cite a source.
If the Slate article authors read and understood Tebbe's article and misrepresented it, surely this is an instance of outright dishonesty.
If they read it but misunderstood it, and gave an honest but incorrect take on it, then we're probably not dealing with dishonesty.
But, what if they read it and misunderstood it, but their misunderstanding arose from not putting forth a good faith effort to comprehend the article?
I gave a talk at an academic conference not too long ago about this question, and I think I was the only person in the room who thought the last of these scenarios was an academic misconduct issue. But, it was an academic conference, so it's not like there were a lot of people in the room to begin with.
I've been disappointed over the last couple years to learn how few of my colleagues see making an honest effort to get facts right as an issue of academic integrity. It's treated either as a simple mistake or seen as a non-issue. They'll check for plagiarism, but I'm the only one I know of who routinely checks to make sure sources say what the student says they say.
The position I take is that a citation comes with some implied claims. The obvious is "the source says this," but I go further with "I've put forth a reasonably diligent effort to understand the source." And I think that gets to what's underlying much of what you discuss in your article. Are there things a professor is implicitly claiming when they choose to publish in a scholarly journal, and is one of those implicit claims that they are undertaking a genuine effort to discover the truth of the matter?
Posted by: Derek Tokaz | Apr 2, 2018 3:08:59 PM