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Saturday, October 11, 2014

The Relationship Between Scholarship and Advocacy

This is a pet interest of mine and is fairly well covered and debated in the latest issue of the University of Illinois Law Review in the context of the ACA litigation (h/t: Andy Koppelman). From the relevant page of the Law Review website:

Issue 4 next presents 5 essays responding to Professor Hyman’s article “Why did Law Professors Misunderestimate the Lawsuits against PPACA?” Professors Ramseyer, Blackman, Blumstein, Mazzone, and Koppelman all contribute to this discussion on the Affordable Care Act. The final article, by Professor Hyman responds to and summarizes the foregoing discussion.

Without completely endorsing it, I particularly recommend Jason Mazzone's piece, Obamacare and Problems of Legal Scholarship. (I think that, by way of background, Part IV of Josh Blackman's piece is also useful. I find myself rather skeptical that Ramseyer's piece is as persuasive, with all due respect. It relies on general rather than field-specific data, often rather old data, and not necessarily the most relevant data, and then engages in rather broad, non-field-specific speculation by way of explanation.)

I quoted part of Jason's article on my FB page and got some interesting responses. Let me quote him more fully here, placing in bold the text that provoked the responses I got elsewhere, and see what comments result. The passage addresses an op-ed Jason wrote fairly early in the ACA litigation suggesting that the Commerce Clause arguments in the litigation might have greater purchase than early academic skeptics were suggesting:

[T]he reactions I found most curious came from fellow law professors. Almost without exception, the professors who contacted me (or who wrote responses in other settings) expressed bewilderment, disappointment, even anger that in my op-ed I had “endorsed” the Commerce Clause challenge the plaintiffs were making to the individual mandate. I had, of course, done no such thing. All the op-ed did was explain why I thought the plaintiffs’ Commerce Clause arguments would have greater traction than other commentators were predicting and that a success for the government at the Supreme Court was far from certain. No matter. To the academics who responded to my op-ed, my analysis was actually advocacy. That meant I was on the wrong team.

The lessons Professor Hyman draws from the PPACA episode go to the future role (or not) of professors in predicting case outcomes. I offer a different conclusion, one that concerns professors not as predictors but as scholars—the role we are actually meant to be playing. The failure of constitutional law professors to distinguish between advocacy and analysis is not confined to the PPACA episode I have described. Rather, this failure is commonplace.

I won't quote my FB interlocutors, although some or all of them graciously gave me permission to do so, in part because I'm not going to reprint or do justice to their responses here. In very brief summary, the responses centered around the idea that scholarship, especially in our field, just is advocacy; that this can be productive; and that one must parse the purposes that legal scholarship might serve more carefully before rendering too sweeping a judgment.

I think the last point is a good and important one. It does not, however, answer questions about what professional or normative considerations we should draw for particular types of scholarship serving different sorts of purposes. I am less in agreement with the first two points. And I doubt that any of these points would justify a scholar expressing "disappointment" that a scholar had "endorsed" or given traction to some legal argument because he wrote an op-ed pointing out that this argument might actually have traction on the courts. 

I do have some caveats about Jason's piece. I think the present-tense-oriented nature of his piece, which concludes that "something may be wrong--very wrong--within the [legal] academy itself," assumes too readily that the mixture of legal scholarship and legal advocacy, and the problems it creates, is of recent vintage and not a long-standing issue. I think his comparison to other fields is problematic, both because 1) as I noted above, we should do more careful thinking about the purpose and function of scholarship in our field in particular and be careful in assuming that particular comparisons are appropriate, and 2) we should be cautious about assuming no such problems exist in other fields, especially in the humanities and social sciences, or that they are properly dealt with there.

That said, I think the sentences from Jason's piece quoted in bold above have a strong basis in fact and do present cause for concern. Rather than come up with absolute condemnations ("all legal scholarship is political crap," "the left has ruined serious legal scholarship," or what have you) or absolute rules barring law professors from doing both things, I do think we need to think much more seriously, publicly, and collectively about what a proper ethics of the dual scholar/advocacy or scholar/activist role entails. I think it would make a proper occasion for a print and/or live symposium, AALS panel, or (God help me) white paper of some sort.    

Posted by Paul Horwitz on October 11, 2014 at 09:59 AM in Paul Horwitz | Permalink


I certainly do not want to begin a too liberal/too conservative discussion. I doubt there is anything that has not been said on that. And, to a lesser extent the political activity of faculty has been discussed in terms of clinics.

It is not an issue of academic freedom. No one is saying law profs should be limited in anyway with respect to their expression. But suppose about 1/3 of our salary is for "scholarship" and certain of us use that 1/3 to advocate the repeal of one law or another. I know that taxpayers, shareholder, and union members often have to subsidize the political speech of others including those with whom they disagree. On the other hand, something seems amiss when Professors in a graduate level program, on the dime of students and taxpayers, relentlessly pursue a political agenda at the expense of scholarship. It seems anti intellectual to me because very often the element of critical think is omitted.

In fact, I think law schools will generally be regarded as interlopers in the world of graduate schools as long as advocacy takes the place of scholarship. Having said that I want to add that I know the line between the two is not bright and this is way off the very interesting issue this thread started with.

Posted by: Jeff Harrison | Oct 14, 2014 2:00:02 PM

My quick, off-to-class answer is that I don't think the state subsidy issue is that great, although I do think that the academy should be intellectually diverse as a whole; while I don't think that means each institution needs to trumpet the same range of views and there is room for different individual schools with particular concentrations and bents, there is a stronger argument for that kind of diversity within individual state schools. It also seems to me that there are some fine distinctions to be made here. Universities subsidize research and teaching primarily, along with a general category of service that may or may not include advocacy. Academic freedom protects advocacy, not so much because professors have any unique expertise or authority as advocates but because of concerns about the potential harm that would result if academics were penalized for their extramural public statements and positions. In theory, at least, I'm not sure the public subsidy is really a subsidy of advocacy work as such, although obviously we benefit from light and flexible schedules, opportunities to pursue our own agendas, and so on; and I'm not sure that academic freedom protects advocacy by professors for its own sake so much as for instrumental reasons. I will say that I hope this thread, to the extent that it continues, doesn't get into the "is the academy too liberal" debate and so on; perfectly worthy subject but too far afield.

Posted by: Paul Horwitz | Oct 14, 2014 10:35:46 AM

No Paul I do not disagree at all. These are all parallel and interesting questions. I know this is veering way off topic but a tangent here is the ability of advocate law professors to have their speech subsidized by, in some cases, the state. Given that most of us are liberal/left and that our advocacy would generally be in that direction and that we are uniquely position to speak without internalizing the cost, I wonder if there is a argument for public institution to provide the same speech subsidization to those with opposing views.

Posted by: Jeff Harrison | Oct 14, 2014 10:24:33 AM

I can't comment on everything but wanted to chime in to say this has been a very interesting conversation (as has been a parallel conversation on my FB page). Again, the most important take-away I would want to convey is that I think there is a real need to approach these questions systematically and collectively, and without expecting that there would be one easy answer or no dissents. It's one of those rare occasions on which I could see a conference being useful and resulting in a conference *document* that might help set some useful and influential terms of discussion. I agree, without making any normative judgments here, that Sebelius and Randy Barnett's work there have brought these issues to the fore, and I would venture to predict that the kind of crossover work involved there will keep coming and growing in power and sophistication; there was a good deal of it in Hobby Lobby too, I think. Finally, I think it is perfectly valid to ask whether the resources devoted to legal scholarship are worth it, who reads it, and so on; but I would like to think that those questions don't preclude discussion of the standards that should govern the work and/or crossover work, public intellectual work, etc., and I don't take Jeff as suggesting otherwise, although of course he's welcome to correct me.

Posted by: Paul Horwitz | Oct 14, 2014 10:06:12 AM

BDG, you are right I am a bit off topic. I don't know who Randy but that's fine. I regard advocacy writing as service, not scholarship. I can be excellent work or awful like that which cherry-picks articles to support one point of view. In either case, though, the law prof is doing what lawyers do and are good at. The question might, thus, be posed as whether having become a law professor one should change his or her focus or methodology to that which is more generally viewed as consistent with scholarship. This would to some extent also answer what I think was the original question in the thread.

I guess to advocate that I was on point I would say my point was the original issue is beside the point since so few of the 8000 articles published a year matter to anyone but the author.

I do think there is another normative question lurking her. To what extent does one get paid to promote a cause under the guise of "legal scholarship." I suppose this is the same issue as to what extent one pushes his or her normative views in the classroom. And, this circles back to whether becoming a law professor means you are a scholar or an advocate and if there is actually any difference.

And one last point which I guess is also normative and which one recent commentator alluded to. I agree there are many ways there can be influence. To me the question is whether the $350 million plus invested each year in legal scholarship can be justified in terms of what the money could be used for. A justification based on "there are other impacts" without more is insufficient. In fact, it is just possible that law schools invest more in research without any follow up or attempt to assess impact than any other institution.

Posted by: Jeff Harrison | Oct 13, 2014 7:30:12 PM

I won't rehash the debate about (1) whether courts are, in fact, influenced by the normative positions advanced in legal scholarship, even if they don't cite to it; or (2) whether judicial citations are a useful metric for determining how "valuable" legal scholarship is. (In my view, the answers are (1) yes and (2) no.)

But to the extent that we care about either of this things, no one seems to have recognized that the public, the bar, and the judiciary will pay more attention and make greater use of work that law professors successfully *market* to them. I suspect that the profs writing trade books that boil down arguments made in their scholarship, submitting op-eds highlighting their recent books and law review articles, and appearing as talking heads on TV wield more influence outside of the academy -- to a degree not entirely, though perhaps largely, independent of how "esoteric" their scholarship is.

Law profs aren't immune from the information-saturated nature of our age. If they're read and cited less than before (and we want to change that, for whatever reason), legal academics have to do things to compete with other sources of information/ideas for attention. Securing a good law review placement for one's article is neither necessary or sufficient for effective marketing.

Posted by: Influence | Oct 13, 2014 11:25:23 AM

This is a very strange context for Jeff to assert that advocacy by law professors doesn't matter. After all, as all the readers here know, it was Randy's work (together with a receptive subset of the media) that created and brought "off the wall" a set of arguments plausible enough for ACA-skeptical courts to rely on. (I take Hyman's piece as a continuing effort to normalize those arguments). Now, perhaps that was a case of paddling out with a surfboard and catching a tsunami, and it won't be replicated. But I think to the contrary it's a model that others--indeed, others at Randy's own blog---are working to replicate.

Posted by: BDG | Oct 13, 2014 10:58:45 AM

If it is any comfort or perhaps it is just appropriate but one study indicates how little law review articles influence anyone other than other law professors. Is this because legal scholarship is viewed with skepticism or that the topics selected are so detached from reality? It's probable a bit of both. In a painstaking study examining citations to law reviews in judicial opinions, I attempted to determine just how legal scholarship was relied upon. Aside from a paucity of cites, especially once the article was not in a top 15 journal, the surprising thing was there were only a handful of cases on which the actual thesis or reasoning in the article was mentioned or relied on. Instead almost all cites were to descriptive materials in the article -- statements of fact that could be verified. The point is that, whether for good or ill, courts do not pay much attention to advocacy by law professors.

Posted by: Jeff Harrison | Oct 12, 2014 5:53:02 PM

One of my colleagues (who has a Ph.D in psychology in addition to a J.D.) likes to remind me that the most widely replicated finding in all of experimental psychology is the existence of confirmation bias. Among legal scholars, it is striking that libertarian scholars tend to find that the original meaning of the Constitution is libertarian, opponents of aggressive law enforcement write articles contending that aggressive policing produces no benefits, etc.). In my view, the principle problem is not advocacy-scholarship per se, but that it presents serious risks of confirmation bias. Developing some scholarly norms to address this risk seems to me to be entirely appropriate.

Larry Rosenthal

Posted by: Larry Rosenthal | Oct 12, 2014 4:57:14 PM

I thank Andy for his comment. In brief (kind of):

1) I can't speak for others, but I'm not advocating the abandonment of normative scholarship. There might be room for less of it, and we might acknowledge that statements like "the court abused its power in the following decision" are not very useful unless they also add "given the following premises" and "for the following reason." But I'm not arguing for wholesale abandonment or prohibition in any event.

2) Andy and I agree, in a slightly different area, that the definition of religion is subject to contestation and highly difficult to make precise or maintain precisely, but that it is not devoid of meaning. The theoretical difficulty or even impossibility of the distinction should not lead us to abandon it, or our intuitions about it, entirely. I would say the same thing here. Some precise, let alone smug and platitudinous, distinction between advocacy and scholarship is impossible; a precise distinction may indeed even be incoherent. I don't think a reasonable distinction is incoherent, however. When we talk about these things, we can find that further digging and discussion reveals messier realities and different conclusions than we may have begun with. But it seems to me that most of us understand that there is some kind of there there, and some set of norms or practices we associate more with one than the other.

3) If there's a primary conclusion to this post, it's that it's worth our discussing collectively what the ethics in this area (or these areas) ought to look like. And it seems to me that that's one area where ethics talk is particularly useful: in dealing with fields and practices whose precise contours are hard to define and in which the actor is often the only one in the room who knows what she is doing or why, but in which most of us agree that there are more or less sound practices. It's possible that such a discussion might conclude that any bad advocacy is also bad scholarship, so all we need to do is talk about good or bad "advocacy-AND-scholarship" constitutes. That's fine with me; I would still consider such a discussion useful. But I doubt that would be the ultimate conclusion. I don't think it's impossible to imagine good advocacy that is bad scholarship, and vice versa, so I don't think the set of recommendations that would issue forth would be identical, which also suggests that there might be some value in understanding whether particular speech acts are advocacy or are scholarship.

Posted by: Paul Horwitz | Oct 12, 2014 2:02:43 PM

Quite a lot of legal scholarship is normative. That is, it presents arguments why a court should take a certain course of action. That type of scholarship has been around for centuries. Proposals to abandon it would pointlessly prevent us from saying things that sometimes urgently need to be said, such as "the court abused its power in the following decision."

Given that fact, in the context of legal scholarship, the advocacy/scholarship distinction is incoherent. There are various ways of cheating, such as misstating the law or failing to confront contrary arguments, but they are both bad advocacy and bad scholarship.

Posted by: Andrew Koppelman | Oct 12, 2014 11:25:48 AM

Is there a particular kind of inquiry immune to the temptations of "advocacy?" Are law profs more prone to corruption than, say, economists or sociologists?

Is the implicit idea of "legal science" behind this post one of Langdellian geology--that the legal scholar is to classify cases as dispassionately and objectively as, say, the geologist taxonomizes rocks? Peter Galison's work on objectivity suggests that might not be a valuable (or even practicable) aspiration.

Finally, let's just assume for the sake of argument that, had the ACA been struck down, 15,000 more people would die per year due to preventable illnesses. Should that factor have weighed at all on legal scholars, "tempting" them to "stretch" the constitution to permit the ACA? Or is an ethic of "justitia fiat, ruat coelum" overriding here?

Posted by: Curious Prof | Oct 11, 2014 6:27:38 PM

Yeah, I'm in total agreement with that (with perhaps the slight caveat that we also ought to recognize how even scholarship that is intended to be non-advocacy can't be distanced from non-neutral social and theoretical presuppositions).

Posted by: Paul Gowder | Oct 11, 2014 4:21:21 PM

Thanks for your comments, Paul G. Thanks for everyone's comments, of course, but I wanted to respond to yours. Regarding your second comment, that's one of the areas where I registered a caveat. I read your comment to say that this has been an increasing area of attention and concern in recent years with respect to the human sciences, not that the number of such problems is greater in that field than in the social sciences and humanities. (The stakes may be higher, however, and the issue may be less transparent.) But I agree that in comparing law to other academic fields, not only must we be careful to make the right comparisons, which may differ depending on the legal scholarship in question, but we must also be careful not to make the common mistake of assuming the best of the other field and the worst of the one with whose flaws we are more familiar.

On your first comment, leaving aside its potential value, I certainly would not be inclined to treat all advocacy scholarship as categorically impermissible; I'm just not that into categorical rules of that sort. And in law, at least, there are some advocacy scholars who are quite clear that they are engaged in advocacy, allowing us to evaluate and discount if and as necessary. What we need, in my view, is clarity and transparency in the scholarship or public intellectual work or advocacy. I do think that both for that and for other reasons, there is good reason not just to kibitz on blog posts (not that there's anything wrong with that) but to actually sit down together and do some of the work of deliberating about ethical standards, with the possibility that portions of those standards will admit of variations according to the genre, activity, etc.

Posted by: Paul Horwitz | Oct 11, 2014 4:12:03 PM

From Mark Ramseyer's essay in the same issue:

Hyman brilliantly details the way constitutional law scholars missed the unconstitutionality of the PPACA. They missed it because they so badly wanted the Act--because they so badly wanted to believe a national health insurance program was possible. They missed it because they let political loyalties trump their judgment--because they let their “moral engagement" block analysis.

As a right-of-center prof who opposed the statute on policy grounds but thought it constitutional based on precedent, I'm not sure I agree with this. But more importantly, didn't the Supreme Court actually uphold the individual mandate?

Posted by: Orin Kerr | Oct 11, 2014 3:56:30 PM

One further note. I was particularly alarmed by the end of Mazzone's essay, which suggests that researchers with proper methodological training avoid issues in which they have a personal stake in view of the loss of objectivity that entails. That's just false. Quite the contrary, especially in the human sciences (or at least in those who study them, such as philosophers of science), in the last few decades there's been a growing recognition that those who have experience of a social problem have an advantaged epistemic standpoint for study of that problem. And it's easy to understand why with a little reflection. Consider, for example, domestic violence. Do you think that someone who has experienced domestic violence, who has first-person access to the psychological dynamics of abusive relationships, might frame a research project on the subject in a different way, by, for example, asking different questions of survey respondents or trying different experimental treatments? And we might learn something from such a study that we would not learn were the research solely limited to those who retained an allegedly appropriate degree of research "objectivity?"

Best general reference: Alison Wylie, Why Standpoint Matters, in Science and Other Cultures: Issues in Philosophies of Science and Technology (Robert Figueroa & Sandra Harding, eds., 2003).

Posted by: Paul Gowder | Oct 11, 2014 3:48:16 PM

Nice post, Paul.

The "ethics" of legal scholarship is particularly poignant. You're right; we can't really compare legal scholarship to, say, scientific work, since the law is fundamentally (usually) a normative and creative effort. While funding for scientific research may be normative, the actual research, if it's good, is not. But law, unlike the physical world, is inextricably wrapped up in what humans perceive. And what humans want is what they perceive (believing is seeing, indeed).

So the ethics of legal scholarship should entail, at least, a clear understanding of what the scholar is doing. If she is attempting to discern the genuine contours of an area of law, then she is doing what scientists do: non-normative discovery. She should still be on the lookout for biases, just as scientists need to be. If the scholar is making an advocatory argument, that's fine, but she should be clear about it, and ensure that her advocacy is grounded and embraces all relevant arguments, data, etc. And this type of scholarship, if it is to be good, is exceedingly difficult and time consuming.

If the "all legal scholarship is political crap" argument is valid (and to some extent it is, if you remove the "all" and replace it with "some" or even "a lot of"), I think the source of the problem lies in the systemic need to publish a lot (for tenure), the ability to publish a lot (with hundreds of law reviews/journals), and the push to be theoretical and fancy. All this means that scholars try to find the next splashy theory that resolves everything, and try to do so two or three times each publishing season. There is little systemic benefit to being a workhorse and documenting an area of law that benefits judges and lawyers. And someone who publishes only one really great article every two years, and nothing else, is seen as a slacker.

Posted by: Steven R. Morrison | Oct 11, 2014 3:45:53 PM

Very quickly (because I'm pushing hard against a first deadline for a promised symposium paper---but it's on a related subject, and so I'm thinking about these things)---it's probably not true that scholarship necessarily is advocacy, even in the constitutional domain (for it's potentially possible even to discuss the normative ideas built into constitutional text without having a position in mind to start). But that's not to say that advocacy-scholarship is somehow a less worthy or productive enterprise. Rather, scholarship that proceeds from a particular political position, that comes produced with a specific goal, can improve the intellectual discourse because of the way that a political motivation infuses the scholar with concerns distinct from those who take a "neutral" standpoint and which, for that reason, promotes different research questions framed differently from the ostensibly neutral questions framed by others.

Feminist philosophers of science have made the best defense of this kind of thinking---see e.g. Helen Longino, The Fate of Knowledge (2001), especially the discussion of local epistemologies toward the end, which emphasize that all scientific research starts with purposes and commitments, and more specifically about politically motivated science, Longino, Science as Social Knowledge (1990)---points which, it seems to me, apply just as readily to legal knowledge-building as to scientific knowledge-building.

Posted by: Paul Gowder | Oct 11, 2014 3:31:15 PM

This is so much the tip of the iceberg. Law profs typically write briefs in support of one position or another. The goal of testing a hypothesis or going into a project to find an answer to a difficult issue is way too rare. Part of the problem is, this post points out, that you are expected to find acceptable answers. Other answers, even of based on solid research or sound reasoning, are not acceptable. My own experience many years ago was writing an article about how how the costs of ending terminable at will contracts were spread and making the argument that in some instances it is like a regressive tax. I repeatedly wrote that I thought terminable at will was a horrible rule and that my purpose was to determine how to end it fairly. Oh, the hate mail I got. I had dared to point out something readers did not want to hear, not because the analysis was wrong, but because you should not write anything that could be perceived as questioning the correct position.

I feel certain that the same thing occurs in other fields although not as pervasively. Think about history or certain finding is sociology that, however true, would be "disappointing" to people if published.

Posted by: Jeff Harrison | Oct 11, 2014 1:45:30 PM

Well put Paul. I too find myself increasingly interested in the ethical responsibilities of scholars qua scholars.

Posted by: Ron Colombo | Oct 11, 2014 1:24:12 PM

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