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Monday, June 27, 2016

Posner is Much More Right Than Wrong

Three passages from the new Slate Breakfast Table are getting a lot of play today among law professors. I no longer read Slate if I can help it, but this was a fun conversation. The first is from Richard Posner, complaining about a widening gap between the legal academy and the judiciary. This is the subject of his most recent book, which I reviewed here, and one is better off reading the book than the post. 

The second is a reply from Dawn Johnsen. She writes, in part:

I do not perceive law professors as pandering to the justices or as generally reluctant to speak truth to power. It may be that few employ Judge Posner’s sweeping style or reach conclusions as extreme. But the law journals are filled with substantive and harsh critiques. That’s what we do.

A better question is how much of that writing is worth reading. Is Judge Posner right that law professors are, well, too academic? At one level, I would say clearly yes—as have many others, over many years. . . . On the other hand, numerous of my academic colleagues have done serious full-time stints in government and nonprofits, typically by taking leaves. Many more engage deeply with real-world practical experience, even while teaching, be it through litigating and filing amicus briefs; serving on nonprofit boards; working with legislators and other elected and appointed officials; blogging for Slate or SCOTUSblog, Lawfare, Just Security, Volokh, or themselves. The American Constitution Society just announced a new Board of Academic Advisors filled with wonderful law professors who are deeply engaged with the world outside of the academy.

And the third is Posner's response. Again in part:

I don’t doubt that law professors are frequently active outside the classroom and that their academic work sometimes addresses practical issues, but what I’d like to see is evidence of impact. Amicus briefs? Working for nonprofits? Blogging? “Speaking truth to power?” Absurd: speak all you want, professors, power doesn’t listen to the likes of you. 

I think Posner's book is deeply flawed, as I write at length in the review, and that his initial post is overstated. That said, I think his reply is right on the money. Johnsen raises some very peculiar, perhaps tellingly peculiar, arguments in response to him. Whatever the phrase "speaking truth to power" means, it is ill-chosen here. Law professors do indeed sometimes speak truth to power. But most of the time, at best, they speak truth about power, which is not at all the same thing. Speaking truth to power requires one to speak directly to an audience of the powerful and for the powerful to be listening. Burying a criticism of the powerful in the middle of an over-long law review article in a journal likely to be read by few--few law professors, let alone lawyers, law clerks, and judges--does not require much by way of fortitude. It amounts to whispering, with footnotes, into the void.

Whatever the phrase "engage deeply with real-world practical experience" means--how does one engage with experience?--her examples are weaker than she apparently supposes. Without doubt, some law professors--even a large number, although small compared to the total number of law professors and smaller still in the top tiers of the legal academy--have practical experience and continue to make use of it. I applaud them for it. (Provided, of course, that they maintain a distinction between their legal work and their academic intellectual work, which, for better and worse, is supposed to operate by different standards.) And some law professors write amicus briefs--rather than merely signing them, which requires no practical experience and gives one no new practical wisdom. Those are exceptional cases. Some of the other examples are relevant but rare. The activities she cites that are actually most commonly engaged in by law professors have nothing to do with "engaging with practical experience." Writing an op-ed or blog post does not require practical experience and does not conduce to it. The best-placed op-eds I have written drew on my academic expertise and a soupçon of, God willing, wisdom and common sense, but not on any practical experience. I regularly receive emails with recent op-eds by Bruce Ackerman. They're very good and so is he, but they are hardly underwritten by practical experience.

The notion that serving on the ACS "Board of Academic Advisors" has much if anything to do with "engaging with practical experience" is quite absurd. Even as a list of examples of practically engaged lawyers it is questionable, since some of them have little practical experience and, for others, their primary practical experience is in public advocacy and propaganda, not lawyering. As should by now be expected, Johnsen raises as a counter-example to Posner the go-to case of Randy Barnett. He has indeed had a good deal of real-world influence. But I know no law professors who do not believe, openly or quietly (and law professors are even more polite and flattering to each other than they are to judges--far too much so), that Barnett's influence has grown proportionally as he has focused more on public advocacy and meme-propagation and less on genuine academic work. 

You can read my review to see how much I think Posner has strayed recently from his best work, and how overstated I think some of his current claims are. But I think he is generally right in his current complaint, although one can read it descriptively without sharing completely his normative views about what law professors ought to be doing. (That turns out to be, essentially, echoing Posner's own views and serving as adjuncts to the federal judiciary.) And he is right in spades in his response to these rear-guard defenses of the "relevance" and "engagement" of the legal academy. If our defense rests on "speaking truth to power," we are in serious trouble.

Interesting in both cases--with respect to Posner's posts and those of his Breakfast Table critics alike--is the focus on influence at the level of national politics or the federal judiciary. Those law professors most likely to have serious practical experience reside in the "lower" ranks of the legal academy, and they--and all of us--would be better off focusing on gaining experience and seeking for influence at the local and state level. But law professors are status-seekers, and that kind of engagement brings no rise in status. And aside from that, there is a difference, swiftly elided by all the Breakfast Table talkers, between having practical experience and seeking or wielding influence. There are plenty of reasons to favor the former, but also plenty of reasons to question the latter as a goal. I think it is right that more legal academics should have practical experience, and do not except myself from the criticism. But it is hardly clear that they should have or seek influence, especially national legal or political influence. In a moment in which large numbers of people are questioning the arrogance or blindered perspective of elites, and in which academics have lost a good deal of their academic authority by departing from serious academic standards in the interest of political engagement, surely there is room to pause before concluding that it's a good idea to stir hundreds more politically engaged, epistemically-closed elites into the mix. 



Posted by Paul Horwitz on June 27, 2016 at 10:18 AM in Paul Horwitz | Permalink


Thanks for the interesting comments. I'll be largely unavailable for the next little while and wanted to close the loop on my part of the conversation by noting a valid and interesting question that I received via email. The question was what the line is between "lawyering" and "public advocacy," which I distinguish in my post. Let me say at the outset that I agree, and was aware when I wrote the post, that the line between the two is not firm. Presumably the questioner had in mind, and if not I certainly did, that lawyering can involve all kinds of activities that fall under the heading of public advocacy. Public persuasion, galvanizing one's "side," attempting to frame an issue in a particular and advantageous way, and other such activities all can be part of the larger task of lawyering.

Nevertheless, I wrote advisedly. My rough guide in distinguishing the two was to ask whether the skills called upon for one's public advocacy draw much, if at all, on one's legal knowledge and skills and add to those skills (insofar as Johnsen argued that these activities add to legal academic's skills specifically as lawyers), or whether they are the kinds of skills that any Reichian symbolic analyst or political macher ought to have. Sometimes they do, at least in part. Often they do not, and the "experience" the politically active legal academic gains by, say, writing a persuasively aimed blog post requires him only to be a decent generally educated rhetorician or debater. Again I agree that the line is difficult to draw. On the other hand, it seems to me that one should not pride oneself too much on being an "experienced" lawyer, or be too confident that one has refuted Posner's general point, because one has done work that could be engaged in by any advocacy-oriented journalist, press secretary, propagandist, or political apparatchik.

I will note as a related aside that all these activities raise important questions specifically for legal academics. They are not necessarily consistent with academic values, at least as many of us understand them in moments when we are reflecting outside the fray. A legal academic who engages in this kind of activity has to confront the fact that her academic work is supposed to be guided only by the search for truth, and thus may have a duty to complicate in her academic work the story she is trying to sell--and it *is* a sales job--in her public advocacy work. And one should not be unduly confident that one can separate the two, doing one task on one occasion and another on a different occasion. Precisely because the two are permeable and people find it difficult to keep their activities in wholly separate compartments, a legal academic who engages in public advocacy may find her strictly academic work influenced by her advocacy in ways that may not be transparent to herself, let alone to her academic audience. As I wrote in my post, we are currently in the midst of an eruption of the long-standing trend of diminishing faith in elites and experts, and of a reactionary anger or contempt on the part of elites toward the mass of citizens and voters. Law professors and other academics or elites who pride themselves on their "relevance" because they engage in public advocacy should be aware that this work may increase rather than diminish the trust gap. The more the gap increases, the more active they will have to be as advocates to achieve the same or smaller results; and the more they do so, the less likely it is, at least on my view of serious academic standards, that their academic work will remain uninfluenced or unscathed by their advocacy work. They might achieve more in the long run by sticking more closely to their knitting, or by being more willing in their advocacy work to present fully the weak points and flaws in their arguments and give (and certainly not omit) a more charitable description of the other side's strongest arguments. It will certainly give people who are inclined to disagree with them more ammunition for disagreement; but it will also give them more authority in the long run and more room to act as experts or advocates in the first place.

Posted by: Paul Horwitz | Jul 3, 2016 10:24:29 AM

That last line was supposed to read: "In the area of regulation and administrative adjudication, I've similarly found a lot of substantive collaboration between agencies, scholars and the bar--particularly in the work of the Administrative Conference of the United States."

Posted by: Adam Zimmerman | Jun 29, 2016 4:42:09 PM

I had the same reaction as Adam. In particular areas, like complex litigation and administrative law, there are very strong relationships between the bench, bar and the academy. Leading figures in complex litigation -- Sam Issacharoff, Bill Rubenstein, Arthur Miller, Francis McGovern, Ken Feinberg, Georgene Vairo -- also serve as special masters, appear as lead counsel (or advise them) in significant cases, serve as reporters, sit on or advise rulemaking committees, and write major treatises -- while teaching and publishing influential scholarship. Judges in complex cases often also maintain strong ties with academics, teach classes, and work collaboratively with scholars and the bar to develop new procedural rules. These efforts are aided by the Federal Judicial Center, the American Law Institute and other organizations that have helped promote scholarship, pilot programs and other important studies of federal and state courts.

In the area of regulation and administrative adjudication, I've similarly found a lot of substantive collaboration between agencies, scholars and the bar--particularly in the work of the Administrative

Posted by: Adam Zimmerman | Jun 29, 2016 4:40:15 PM

I also wonder how important influence (in the sense that Posner means it) matters. I think it is reasonably clear that the greatest influence I have as a law professor is on the (by now) thousands of students I have taught over the years. Helping them become successful, ethical lawyers is both my principal goal as a law professor and the part of my job I spend the most time on. Why should we not measure our influence this way?

Posted by: anon | Jun 29, 2016 2:04:38 PM

Why do I get the impression that Posner doesn't WANT academic influence in the courts?

Posted by: flip | Jun 29, 2016 12:27:15 PM

Posner is right as a general matter, but he's wrong regarding particular areas of the legal academy. The bankruptcy judiciary is very engaged with the bankruptcy professoriate, for example. It's not coincidental that the leading bankruptcy law journal is published by the National Conference of Bankruptcy Judges and edited by bankruptcy judges. The Delaware Chancery court is also quite attuned to corporate law scholarship. Notably these are two areas in which the Supreme Court's jurisprudence is of little importance.

Posner is also looking for academic influence on the courts, but that focus misses academic influence on the legislature. In the financial regulatory area, that influence has been substantial on both sides of the aisle, where legal academics are a key part of the legislative "brain trust". And it's worth remembering that a new government agency--the Consumer Financial Protection Bureau--is the brainchild of a Senator who was at the time a legal academic.

Posted by: Adam Levitin | Jun 29, 2016 12:54:42 AM

"Interesting in both cases--with respect to Posner's posts and those of his Breakfast Table critics alike--is the focus on influence at the level of national politics or the federal judiciary. Those law professors most likely to have serious practical experience reside in the "lower" ranks of the legal academy, and they--and all of us--would be better off focusing on gaining experience and seeking for influence at the local and state level. But law professors are status-seekers, and that kind of engagement brings no rise in status."

The exchanges in the comments to this post from five years ago (!) are illustrative: http://prawfsblawg.blogs.com/prawfsblawg/2011/07/amicus-briefs-and-the-academic-judge-divide.html

But federal judiciary is far too broad. Many of the "practical" law professors (tenured not adjunct) by and large only want to engage with the Supreme Court. Their amicus briefs are overwhelmingly at that level, or maybe the DC circuit.

The bulk of the federal judiciary are in district courts, the bulk of the american judiciary are in state courts. So we have a situation where "practical" tenure / tenure track professors are a minority and these professors are obsessed with a tiny court that virtually no lawyers ever see the inside of as a practitioner.

In some ways I think it is the economic analysis of the medieval law codes of Bulgaria professors that are more honest and straightforward. They don't pretend to be addressing the bench and bar while actually ignoring 99% of both.

One hundred years ago there was active work on restatements and uniform codes, there were treatises aimed at the bar, there was work with state legislatures in drafting new laws. The legal academy was a part of the legal world.

Posted by: Brad | Jun 27, 2016 3:48:52 PM

“I think it is right that more legal academics should have practical experience, and do not except myself from the criticism.”

It's not too late to get started.

Posted by: Steven Lubet | Jun 27, 2016 1:54:42 PM

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