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Tuesday, September 06, 2016

Letters to the powers that be

I am a junior (untenured) assistant professor at Howard University School of Law. Although I do not (yet?) self-identify as a public intellectual, I do produce scholarship that seeks to critically study and reflect upon problems in society and that proposes solutions for those problems. It seems that the very act of seeking to affect the public discourse makes me a public intellectual (at least according to Wikipedia).

I've found myself reflecting on my status recently because I've been offered several opportunities to sign letters that seek to influence rules being promulgated by the Consumer Financial Protection Bureau. See, e.g., this letter. My gut reaction is usually a bit of self-doubt. Do I really know enough about all sides of the issue to weigh in? Have I thought about the problem long enough and adequately reflected on the appropriate solutions? In addition, I wrestle with how much time to devote to getting up to speed on the issue covered by the letter.

I assume that others have much more experience in this area than I do. As such, I'm curious what other folks think about signing (or drafting) such letters. What factors affect your decision to either draft such letters in the first instance or to sign ones that come across your desk? How much time do you invest in making sure that the comment letter you sign is as perfect as it can be? Put differently, do you treat these letters like a blog post or a law review article? Finally, did you think differently about these issues when you were untenured? Should you have?

Thanks for sharing your thoughts!


Posted by Matthew Bruckner on September 6, 2016 at 09:56 AM in Current Affairs, Jr. Law Prawfs FAQ, Law and Politics, Things You Oughta Know if You Teach X | Permalink


Hi Matt, good to have you guest-blogging here.

I have observed the rule that, absent an extraordinarily strong conviction that a particular position is correct, I will not sign any amicus brief or letter that I did not myself draft. I observe this position even for letters and briefs with which I agree. My reason is that, unless I do the hard work of putting words on paper, I cannot know what I really think about a matter. First and even second impressions can be misleading, especially when one reads only one brief or letter on one side of an issue. "How can I know what I think until I see what I say?" is a rhetorical question I recall from somewhere -- I forget where -- with which I largely agree.

This position, however, leads to an awkward position when I ask other people to sign letters or amicus briefs that I draft.

Posted by: Rick Hills | Sep 6, 2016 9:23:43 PM

Thanks, Orin. I look forward to reading this article. The issues do seem similar.

Posted by: Matthew Bruckner | Sep 6, 2016 8:52:33 PM

Some of the issues here seem similar to those raised in the debate over law processor amicus briefs.

Posted by: Orin Kerr | Sep 6, 2016 1:47:47 PM

In a private email to me, Mike Schuster (Assistant Professor - Oklahoma State University Spears School of Business) had an interesting comment. He agreed that I could share it here.

"Regarding the blog v. LR effort level, my gut also says that "blog-level"
is correct (though I am also curious to hear what the commentary has
to say). I also question to what extent you can/should use the list
of other signatories as a proxy for whether the stated position is
"correct." If 10 great IP academics (whose work I like) are signing
onto an amicus that I agree with at first blush, should I sign on? Or
should I worry that there is some level of network-effect going on
where one highly regarded prof signs on, then 2 more will sign on, and
then 7 others will? If that's the case, then the signatories don't,
per se, signal a great argument. I'm not sure what the proper answer is there."

I think using other signatories as a proxy for whether I should sign on is interesting, but it raised a concern for me related to my original post. In short, if the ten most important consumer law scholars sign onto a letter, does it matter that I add a "me too"?

Posted by: Matthew Bruckner | Sep 6, 2016 12:40:53 PM

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