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Wednesday, March 15, 2017

Law Professor Neutrality in the Age of Trump

So much of what law professors do is cloaked in the language of neutrality.  It is not just Herbert Wechsler who was and is looking for neutral principles, but law professors in their pedagogical and scholarly roles.  But is this performative neutrality merely a function of the usual stakes of law professing and law being relatively low? The presidency of Donald J. Trump certainly raises the stakes of both, and calls for revisiting the role morality of the law professor, on at least two dimensions:

(1) Should we be teaching differently? My desire has always been to maintain as much of my pedagogical neutrality in my first-year constitutional law class as possible.  Other professors are different, revealing their priors and/or their perspectives more often and more vocally.  Should law professors be more willing to reveal their priors in their teaching? Is pretending to stay neutral a form of legitimation of Trump? By simply introducing an action of the Trump Administration, and presenting with a straight face their constitutional arguments defending it, are we legitimating these arguments as “on the wall” in a way that we should not to law students?

(2) Should we be writing differently? So much of legal scholarship is written as if an idea should be evaluated based on its universal and longitudinal merits.  Scholars tend—there are exceptions—not to describe their approach to originalism or living constitutionalism, for instance, as being justified primarily or exclusively because it helps or hurts conservatives or liberals, abortion or gun rights, and so on.  Along those lines, the concerns addressed in scholarship tend (again, there are exceptions) to be less immediate and more longitudinal.  An article is less often about how one case before the Supreme Court now should be decided, but rather more about how the Court should be deciding cases more generally.  The result is that current event proper nouns (e.g. Obama, Trump) are rarely foregrounded in legal scholarship.  Should this be different now, in at least three potential ways: (a) Should a criterion of any argument be whether it helps or hurts the Trump Presidency? Arguments for constraining power tend to wax and wane in the law reviews based on how much law professors like or dislike the president in office.  Should this be made more explicit? The newest idea to constrain power, in other words, is not just evaluated by looking at Federalist 51 but also by mentioning in the text of the article what it means for Trump in 2017.  (b) Is it more acceptable to state the priors of the scholar first because those priors might be under particular threat (“for progressives, this Article is appealing because”)?  (c) Given that basic principles are now being debated and challenged, is it important to state priors regarding basic principles because an argument that used to be universally appealing might now be presumed to be controversial (e.g. “for scholars who believe in the power of courts”)?

Posted by David Fontana on March 15, 2017 at 01:34 PM | Permalink


Yesterday --

Okay. You can come. Bring extra cups, please.

But if your longshoreman joke is the one with the punchline "Angela Lansbury!," please don't tell it. You'll scare the kids. Deal?

Posted by: Marcus Neff | Mar 17, 2017 12:10:00 PM


I think I'm a hoot. Others seem to agree. If you invite me, I'll be able to tell you my joke about the longshoreman that got lost in London. It's always good at a party.

Posted by: YesterdayIKilledAMammoth | Mar 17, 2017 2:25:38 AM

“Does morality exist?”
If you’re asking if there is a universal general moral principle, then yes—treat people the way you would want to be treated if you were them and in their situation.
If you’re asking if
(1) people will ultimately agree on political values, or
(2) there are genuine value disagreements on issues like separation of church and state, term limits, the exclusionary rule, the Miranda warning, etc.
Then (2)—people genuinely disagree on whether or not to have certain political values and they always will.

Posted by: Link | Mar 17, 2017 2:01:33 AM

“Does morality exist?”
Morality is to humans what the four fundamental forces are to matter. We do not see, smell, or taste a gravity or magnetic field, for instance, but we can see their effects. So it is with thoughts, like morality: we can observe peoples diverse interactions and can see the effects of their thoughts, like morality.
Of course there are times when people’s actions are instinctual, or reflexes, or something other than the product of free-will—but when different people act unpredictably differently in the same situations, we can assume that it is not the product of biology, but of will.

Posted by: Link | Mar 17, 2017 1:43:46 AM

Yesterday --

I am. But only fun people can come, cups and ice or not. So should I invite you or what? I really can't tell.

Posted by: Marcus Neff | Mar 16, 2017 7:39:50 PM

US law school system utterly corrupt by socialism. So sorry your country went that way after so much effort. Goodbye.

Posted by: cvcvcv | Mar 16, 2017 6:26:32 PM

Excellent post. Thank you for this. One relevant prior: I'm not a lawyer...but I did stay at a Holiday Inn Express last night, and know that Bayesian probability stats refers to "the prior" as a belief about a probability distribution before any evidence is considered. If we are perfectly honest about it, humans can do nothing perfectly. That includes neutrality. One thing is certain: it's rare in these days of media saturation to have no priors on the matters discussed above. So, it seems that disclosure would indeed be more a matter dictated by conflict of interest implications, especially in situations in which a law professor feels so passionately about a matter that even his/her attempt at neutral presentation of it might betray a preference, or transmit a preference unconsciously. Having read a little Kant, Hume, Sen, Rawls and others over the years, the ideas of "universals" and "neutral observer" have to be tempered by the fact that we just don't know everything yet. Once we've collectively and conclusively reached enlightenment and/or sainthood, we'll likely have a good handle on what is universal and what isn't, and all conflict having been settled, will have no further need of neutrality. In the meantime, we've got to settle for what feels pretty universal, and what imperfectly satisfies the principle of neutrality in the context of relative sovereignty. Try as we might to remove God, the mere act of attempting to do validates God's existence. Thus, the principles and laws which we sense as emanating from God in the form of universals can only be obeyed or disobeyed, not removed. I've enjoyed the study of neutrality for many years now, and found this post delightfully provocative.

Posted by: Rob Jones | Mar 16, 2017 5:29:54 PM

Patrick S. O'Donnell,

I have to disagree. In Hobbes, the commonwealth does not define the laws of nature, it is itself dictated by the laws of nature (Chap. XV, para 1). The commonwealth then gives the "names of just and unjust" or, as Michael Walzer writes, it "fixes the meaning of the moral vocabulary."

However, Law of Nature philosophy leads us into a morass, because Hobbes, Locke, Pufendorf, et al made God the author of the Law of Nature. If God does not exist, or if (as is the case today) law and society do not presume the existence of God, there is no Law of Nature. Even a godless Law of Nature would still require some sort of pantheistic spirituality in which case Nature has the ability to author a universal law that all can know.

Regarding murder, torture, genocide, if one removes law and God, it is not possible to show a natural prohibition against any of these. Indeed, if we accept Hobbes' definition, before the commonwealth imposes a moral vocabulary, I have as much right to your life as you do and vice versa. Thus, these words have no meaning.

Posted by: YesterdayIKilledAMammoth | Mar 16, 2017 3:38:26 PM


My brother dying yesterday hit a nerve, your comment, however, did not. There was no retreat from the claim that "morality exists" in my comment, as I was merely allowing for the few people who might not believe that fact or act as if they don't believe same. As your parsing of what I wrote is fairly poor and your comments strike me as ill-informed, I'm not inclined to further debate or discussion after this comment, so please have the last word.

Hobbes believed quite heartily in morality, in particular and conspicuously, the Golden Rule,* and it is NOT true to state that "commonwealth" defines the "good," but rather the "Laws of Nature" (constrained by Hobbes's reciprocity theorem of reason) which secure mankind's common good. You would benefit from reading two works by S.A. (Sharon) Lloyd: Ideals as Interests in Hobbes's 'Leviathan': The Power of Mind over Matter (1992) and Morality in the Philosophy of Thomas Hobbes: Cases in the Law of Nature (2009) as well as Perez Zagorin's Hobbes and the Law of Nature (2009). All of his laws of nature "reflect the moral principle of reciprocity based on human equality, which mandates that every person should treat others as they would want others to treat them." Furthermore, the "law of nature as an injunction to seek peace is a moral law sanctioned by right reason, objectively right, and addressed to the rational self-interest of every individual [this self-interest is at the same time a common or universal interest insofar as the good desired by all men includes their self-preservation AND commodious living]." As both Lloyd and Zagorin make perfectly pellucid and the latter writes, "despite their [shrewd or clever?] appeal to self-interest, they are genuine moral principles intended to promote and facilitate peaceable social and other-regarding behavior between people, and that anyone who strives to abide by them would be a moral or virtuous person."

There is a concept of morality, and there are various conceptions of morality, which form the basis of human communities and legal systems, and there are common moral propositions or a minimal moralism that have universal applicability (e.g., the prohibition of murder) seen, for instance, in jus cogens norms against torture, genocide, crimes against humanity.... Disagreement arises over what might precisely constitute the "core" of morality or the degree of truth captured in this or that conception, and so forth, but this does not amount to evidence for the proposition that morality does not exist any more than the fact that we don't fully understand the natural world is evidence that the natural world does not exist. I refer you back to the passages from Gaus and Wiggins for ample arguments against moral nihilism.

* Incidentally, Golden Rule formulations (expressed in positive or negative terms) are found in most religious traditions and several philosophical worldviews, north and south, east and west (I have an essay on the Golden Rule at my Academia page).

Posted by: Patrick S. O'Donnell | Mar 16, 2017 3:09:39 PM

Marcus Neff,

Are you throwing one? Because you can find out first-hand. Want me to bring cups or ice?

Posted by: YesterdayIKilledAMammoth | Mar 16, 2017 3:02:03 PM

Before professors can "disclose their priors" — whether in scholarship or in class — they have to accept the concept that they have priors, and identify what they are. This isn't as easy or obvious as it sounds. As an obvious example, consider a lecture or discussion on whether a particular legal (or political) doctrine successfully dealt with a particular circumstance... and, more to the point, whether later developments and/or unintended side effects would change one's opinion. In first-year Civ Pro, there are significant political, policy, and "priors" undercurrents to such seemingly "neutral" issues as asserting personal jurisdiction over particular defendants (e.g., tag jurisdiction such as in Burnham, where an international corporation should anticipate being haled into US court such as in Worldwide Volkswagen, and more other examples than one can shake a stick at without even mentioning ATRA's concept of "judicial hellholes"). Anyone who denies that these questions do not have "priors" inextricably intertwined with them hasn't looked closely enough... but that's the only conclusion I can draw from the way multistate bar exam questions that I've seen have been written.

Posted by: C.E. Petit | Mar 16, 2017 2:37:57 PM


Are you fun at parties? Be honest.

Posted by: Marcus Neff | Mar 16, 2017 1:55:47 PM

Patrick S. O'Donnell, it seems I hit a nerve. I especially like how you immediately begin retreating from the proposition that "morality exist" by saying, "and if they [morality] don't there are 'legal ethics' and professional codes of conduct" that can forcibly inflict morals.

Of course, groups often do conceive of a "good" and use rules to enforce this "good" a la Rawls' statement that principles of justice (or right) "impose restrictions on what are reasonable conceptions of one's good." Except that these restrictions vary society to society, country to country, state to state, even town to town.

As Hobbes' states, there is no single conception of "the good," and even if there was we'd be unable to agree on what it is. Thus, the commonwealth defines the "good" and, thusly, what some call morals (similar to Rawls' proposition). However, just like one legal system cannot declare a separate legal system "unjust" (Kelsen and Hart), one morality system cannot declare another morality system immoral.

Thus, there is no universalism, which is the entire idea behind morals. And so, morality--as a kind of universal imperative to adopt or resist certain behavior--does not exist.

Posted by: YesterdayIKilledAMammoth | Mar 16, 2017 1:17:43 PM

It's not clear to me that law professors actually know what is "on the wall" when the wall intersects with politics. Take, for example, their inability to appreciate how the constitutional challenges to Obamacare would fare. A position almost universally declared outlandish won five votes and would have been dispositive but for the chief's tax rationale. It seems like a modicum of humility might be in order in presenting various positions.

Posted by: Curmudgeonly Ex-Clerk | Mar 16, 2017 1:04:38 PM

Professors as well as parents (and their children!) will be able to discuss from experience the limitations of "editorial comments," but there is probably some degree of influence there. This is especially the case if the people are overall those with qualities that their "students" [children are students too in certain ways] find appealing in various respects.

"By simply introducing an action of the Trump Administration, and presenting with a straight face their constitutional arguments defending it, are we legitimating these arguments as “on the wall” in a way that we should not to law students?"

I gather this concern, if perhaps in a somewhat lesser way in certain respects, was raised in the past. For instance, many law professors found the arguments (including the successful Medicaid expansion one, which has had serious negative effects on many people) put forth against PPACA as downright specious. A lot of verbiage was spent on this.

It was noted by people like Prof. Balkin (IIRC) that over time off the wall arguments obtain a degree of legitimacy. Anyway, I gather other arguments can be cited. I personally, e.g., found certain arguments legitimizing anti-same sex marriage laws specious. Just speaking of them without some negative asides is tricky.

Net, I wonder how much these times are different than the past regarding the subject discussed.

Posted by: Joe | Mar 16, 2017 12:20:45 PM

oops: of course that should be P.F. Strawson (at least I got the son's name right)

Posted by: Patrick S. O'Donnell | Mar 16, 2017 10:26:57 AM

The following is aimed at those with or aspiring to a philosophical temperament and willing to consider the plausibility (including the lack thereof) of moral nihilism:

There’s a wonderful quote from the brilliant philosopher P.F. Stawson (d. 2006) (the father of the gifted contemporary philosopher, Galen Strawson) in Gerald Gaus’ important book, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World (Cambridge University Press, 2011): ‘[I]t is a condition of the existence of any form of social organization, of any human community, that certain expectations of behavior on the part of its members should be pretty regularly fulfilled: that some duties, one might say, should be performed, some obligations acknowledged, some rules observed. We might begin by locating the sphere of morality here. It is the sphere of the observance of rules.” [cf. Hobbes and Kant on this topic]

Gaus himself argues (relying not only upon the history of philosophy in the West, but drawing as well from game theory, experimental psychology, economics, sociological theories of cultural evolution, theories of emotion and reasoning, axiomatic social choice theory…) in the first part of the book that “’social morality’…constitutes the basic framework for a cooperative and mutually beneficial social life,” and proceeds to explain, among other things, how “free and equal moral persons [can] claim authority to prescribe to other free and equal moral persons.”

Should one want a provocative treatment on morality as it bears upon something broader and deeper than “public reason,” see David Wiggins’ Ethics: Twelve Lectures on the Philosophy of Morality (Harvard University Press, 2006). Here is but a wee taste:

“The candidate subject matter must have a point, however inward and imperfectly articulate this may be, and it must engage in a proper multiplicity of ways with things that we can find out about or pursue or care about in the rest of life. But the subject matter of ethics does manifestly do all these things…. That is not all. If we think about this matter from the inside then we shall discover a wealth of further knowledge, however inexplicit, about the inner aim that animates the whole business, and regulates it critically. Morality is not just one among numerous possible ways of thinking about how we are impinged upon from without. It is our response to things which, in the light of distinctive unforsakeable concerns, matter distinctively. Our sense of how they matter and why they matter is something we come to understand progressively more exactly, moreover, as we join with others in the business of applying or refusing to apply one or another ethical predicate to that which we confront or look upon in the ordinary business of work, survival, or participation in shared enterprises. Here is how … we arrive at our sense of what notions emerge from the crucible of shared experience as indispensable to us. Here is how we gain a more and more exact understanding of what considerateness, or callousness, or kindness, or brutality, or proportionality … amount to, and what they count for, in an act chosen or contemplated, in an action done, or in its outcome.”

Posted by: Patrick S. O'Donnell | Mar 16, 2017 9:27:50 AM

So those who have, for decades, had no qualms over "legitimizing" a legal regime that has led to the slaughter of approximately 60 million unborn children since 1973 under the euphemistic banner of "reproductive rights" are having an attack of conscience over approaching the Trump Presidency with a modicum of neutrality? Please.

Posted by: James | Mar 16, 2017 8:31:06 AM

As for the troll-like proposition in third comment that "morality does not exist," thankfully those philosophers (from Plato to Hobbes and Kant), and prominent legal theorists and philosophers of law (including eminent legal positivists like Alfred von Verdross, H.L.A. Hart, Joseph Raz...) who've written on morality and law agree, albeit for sundry reasons, that morality does in fact "exist." One of the more recent and ambitious legal theories, Scott Shapiro's "planning theory," finds law in the modern world to be central to the fundamental moral enterprise of coordination and cooperation. Thankfully, most of those with a serious and sustained interest in law and legal systems, as well as many of those who practice law, believe (or act as if they believe) that morality in fact, and somehow, "exists" (and if they don't there are 'legal ethics' and professional codes of conduct that will serve to remind them gently or, in the case of egregiously bad behavior, through sanctions of one kind or another, that morality does in fact exist).

Posted by: Patrick S. O'Donnell | Mar 16, 2017 1:32:54 AM

Regarding Orin Kerr's point on mirroring the opinions of their educators, I have given this lesson rather explicitly to my own offspring when they encounter leftist (or occasionally Islamic-apologist) dogma in their course material. When the dogma is shrill enough, I make my counterpoint with commensurate crassness: "You don't have to believe any of this s**t, you just have to know what it is and regurgitate it when required."

Posted by: M. Rad. | Mar 15, 2017 10:32:18 PM

Morality does not exist.

Posted by: YesterdayIKilledAMammoth | Mar 15, 2017 8:55:32 PM

On teaching: I think law professors overestimate how much their editorial comments can influence student opinions. Editorial comments signal to savvy students what position to take on exams: The smart move is usually to mirror the professor's politics, so if the professor obviously hates Trump you should write an exam in which you express the same view. But I think students are savvy enough to see their professors as human beings, and to recognize that a professor's political opinions have no more weight than anyone else's. Given that, I don't think professors can legitimize or delegitimize a president either way.

On scholarship: I think the answer just depends on a particular professor's goals. Is the goal to create lasting academic work? Is it to try to save the Republic? To feel better about American politics? To get the best placement possible? It's hard to tell professors what their goals should be, but I think the statement of the goal largely answers the direction scholarship should take.

Posted by: Orin Kerr | Mar 15, 2017 8:40:22 PM

I am not in position to comment helpfully on either 1. or 2., but allow me to mention the fact that "role morality" is just that, and so ethics or other moral values and principles will be of a wider circumference and thus are capable of "trumping" or superseding (or transcending) such role morality. And insofar as politics overlaps (at least it should overlap...) with morality (even with the so-called 'realists'), it should be clear that there's a distinct possibility or, better, probability, that any commitment or pretense to neutrality seems utterly misplaced, if not wrong. Students need not (and often do not, in my experience) share one's views, but it seems questions of consistency, integrity, and honesty would compel one to teach a bit differently during these times, at least insofar as we have a President and his subordinates and lackeys evidencing an appalling aversion to truth telling, to scientific evidence, to basic principles of compassion, distributive justice, egalitarianism, due process, etc., etc. Support for Trump, however "sincere," can only at this juncture be explained by (socio-) psychological phenomena, such as wishful thinking, self-deception, and states of denial, individually and collectively, working on behalf of calcified (and sometimes clashing) ideologies. The circumstances in which we find ourselves are in large measure unusual (even if they only bring to logical and historical conclusion earlier ideologies and trends) and thus attempts at (feigning) "neutrality" strike this reader as feckless, disingenuous, and even quite dangerous. One can, at the same time, be fairly objective dispassionate, analytically speaking, but the nature of law and our legal system is such that one cannot be "neutral," unless one has no thought or concern for real-world consequences (which does not require utilitarian-type knowledge to fathom).

Posted by: Patrick S. O'Donnell | Mar 15, 2017 8:12:17 PM

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