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Monday, October 17, 2011

"Flip-Flopping" and Honest About-Faces by Law Professors

At the Faculty Lounge, Brendan Maher asks an interesting question about "flip-flopping" law professors: 

I periodically wonder how frequently legal academics sincerely change their minds about things they've written previously.  Changing one's mind on the truth of a previous proposition asserted is a different matter than admitting the change; the latter's less frequent than the former, no doubt.  Just the same: what's the most famous about-face in legal academic history?

"Flip-flopping" obviously has a negative connotation, and sometimes it is a sign that a law professor has adopted inconsistent positions for the sake of achieiving some political goal.  (I have no one in particular in mind here, but, by way of example, in recent years a number of people seem to have argued both sides of Boy Scouts of America v. Dale depending on the issue involved.)  Sometimes, however, a scholar reaches a genuine conclusion that his or her prior view just doesn't work or has more problems than he or she initially accounted for, and the public volte-face that results is often not only useful but heartening, as a sign that some scholars take their vocation profoundly seriously.  In my own field of law and religion, I think of Chip Lupu's move from being critical of church autonomy to arguing in favor of it.  Lest I seem as if only those moves that I favor are praiseworthy, I also think of Fred Gedicks' move from a full-throated support of group rights to his more recent work calling a group rights model of constitutional law, and especially law and religion, into question.  

A somewhat different example, but one that has always fascinated me, is the story of Henry Hart and the Holmes Lectures.  As Bill Eskridge tells it in his Harvard Law Review article on the making of The Legal Process: "Hart's 1963 Holmes lectures illustrate the intellectual paralysis engendered by his perfectionism. He presented a detailed argument in the first two lectures. During the third and final lecture, Hart announced that his proposed resolution did not work and sat down before a stunned audience. Although the terms of the Holmes Lectures required a manuscript to be delivered for publication, Hart never worked out the problems with his argument and never delivered a manuscript."  (The story has been well-told in many places; Laura Kalman's telling in her book The Strange Career of Legal Liberalism is a particularly good one.)  

Brendan has asked a good question, and one that in different ways may help us to reflect on what our vocation requires.  I take it everyone agrees that scholarly flip-flopping or inconsistency for the sake of politics is a failure of scholarly obligation--and, conversely, that it is worthy of praise, and perhaps even obligatory, for scholars to publicly declare it when they change their views.  I hope folks will weigh in, there or here, with other examples, either of less praiseworthy "flip-flopping" or of commendable public changes in position.   

Posted by Paul Horwitz on October 17, 2011 at 10:08 AM in Paul Horwitz | Permalink


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For a brief and incredibly funny recitation of flip-flop-esque legal events, see William R. Wilson, Jr., My God! Now He Is Arguing With Himself, 12 Green Bag 2d 475, 475 (2009), and the various letters to the editor in response, To The Bag: Authoritative Indecision, 13 Green Bag 2d 3, 3-6 (2009).

I think the former is available here:

And the latter here:

Posted by: Anin No Make That Anon | Oct 19, 2011 11:13:32 AM

One example of someone who has thoughtfully changed his views is Thomas Scanlon, who has reconsidered his position that autonomy can be used as the single central value of First Amendment theory:

"As someone who once made a mistaken appeal to autonomy as the centerpiece of a theory of freedom of expression, my position in the Dantean Inferno of free speech debates seems to be repeatedly assailed with misuses of this notion, no matter how I criticize them."

T.M. Scanlon, Why Not Base Free Speech on Autonomy or Democracy?, 97 Va. L. Rev. 541, 546 (2011)

Posted by: Joseph Blocher | Oct 19, 2011 9:31:45 AM

Paul and Dan,

It occurred to me after my post over at the Lounge that the claim that Professor X changed his views -- even if honestly coupled with a "this person sincerely changed his position" disclaimer -- might nonetheless ruffle some feathers, either of Professor X himself, or, as to deceased Professors, of his scholarly supporters. To borrow Dan's clever phrasing: no matter how nicely something is called a flip (i.e, a sincere change), some subjects may view it as being sneakily accused of a flop.

That snag aside, I asked the question because the law is not accretion only; it is accretion and subtraction, and it's particularly interesting when that process occurs within the same head. Flips are heartening, really, because they indicate, at some level, an openness of mind -- with openness of mind in the academy being something that vindicates the noblest explanations about the purpose we collectively serve as professors.

Posted by: Brendan Maher | Oct 17, 2011 10:35:02 PM

In my field of punishment theory, there are a couple interesting flips, but I wouldn't necessarily call them flops.

Jeffrie Murphy, who has been an incredible source of wisdom and humor in my field, is probably well known for having changed his views with some frequency. There are of course those who think Kant's writings on punishment are incompatible with each other, though it's not clear whether an unconscious or unaddressed change counts as a flip-flop...

More recently, Dan Kahan from Yale used to support shaming punishments but now does not, though his reasons for his renunciation are driven more by pragmatic considerations having to do with feasibility.

On the issue of the death penalty, by contrast, there have been a number of flips toward abolitionism among judges, but I can't recall any academics who have flipped on that issue in their published work.

Posted by: Dan Markel | Oct 17, 2011 2:01:40 PM

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