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Tuesday, January 02, 2018

On Passion: An Addendum on "Law Professors and Twitter"

Carissa's post below discusses her new draft paper on law professors and Twitter. Although, with no little measure of hypocrisy, I dislike Twitter and seize every opportunity to say so (while occasionally posting on it and, worse, reading and commenting on it), her paper is highly relevant these days and adds to the conversation about how law professors should write and behave on Twitter and other public or social media. This is a subset of the question how academics in general should behave on social media. But it may have some added importance with respect to law professors, by virtue of 1) the American tendency to turn political issues into legal issues and vice versa, and 2) the assumption, often shared by law professors and the public alike, that law professors may be particularly well qualified to opine on a wide range of issues. There have also been some interesting (and some less interesting, or less coherent) comments on Carissa's paper and her post here, both on Twitter and on legal blogs. I recommend both her post and her paper. Given that Carissa was one of the co-organizers, I would like to add that her contribution is part of a larger symposium on the ethics of legal scholarship that will appear later this year in the Marquette Law Review, and I recommend it almost in full. (I should have a contribution there as well.)  

I added a comment to Carissa's post but, for varied reasons, I'm going to reprint that comment below, lightly edited but with most of its stylistic imperfections left untouched. I also wanted to add two more notes to what I wrote there. First, the comment:

Although I am on Twitter, a little, I can’t help but sympathize with [commenter] Brad’s view. Fans of Twitter insist that it has value. Maybe so. But I find that more than very brief exposure to it induces a state of nausea. Sometimes it feels like the nausea that might be the first stage in taking an addictive and pleasure-enhancing drug, but it’s nausea nonetheless. A worthwhile question is not whether it has value, but whether its downsides outweigh its upsides. We might also ask whether the addictive nature of the medium, its incentives (to shout, to be too emphatic, etc.), and its capacity to change the person who reads or uses it are themselves factors to be considered.

As another comment on Carissa's commenters, I can’t stress enough the importance of academics, legal and otherwise, recognizing the importance of engaging in the world of politics and public argument, at least some of the time, as citizens, not as academics. It’s not just that many issues on which they opine on Twitter and elsewhere are beyond their actual academic expertise, or involve questions or types of argument as to which even their expertise is not especially helpful. Engaging as a citizen is a good in itself. Declining to assert one’s “authority” in every public debate is respectful of both democratic equality and the limits of the academic function. It may help stanch the erosion of public trust in institutions, including universities, and in expertise itself. And the very fact of engaging as a citizen rather than an academic may change one’s perspective, perhaps for the better. Academics who want to be “engaged,” active, or committed to various political issues ought to consider doing so more often in a way that omits their titles and affiliations and is clearly strictly in their civic capacities. (Many do this on a local level, to be sure: They may do volunteer work or get involved in local political issues without constantly invoking their professorial status. I’m referring specifically to the world of public discussion and argument about current issues, where invocations of status and ostensible expertise or authority are common.) The worst that might happen is that their pronouncements and arguments will be treated by readers as less persuasive and paid less attention, and thus be less “effective.” That’s not necessarily a bad thing.

If (legal) academics persist in both being “engaged” and trying to intervene in public discussion, and doing so in a way that invokes their titles and affiliations and ostensible academic and/or expert status, then yes: Even if the medium is not academic and the discussion is public and not limited to the academic sphere, it makes sense to think about norms or practices that should guide and constrain them when they do so. They will almost certainly be different from the norms and practices of scholarship or the classroom. But they will still be constraining norms reflecting their academic status and function.

Two additional notes: I certainly second her observation that Twitter often incentivizes or liberates people to be coarse and uncivil, and I agree with her that we should expect better, from ourselves if not others. (It is, of course, possible to be blunt, or to disagree sharply, or what have you while being civil.) I don't think, however, that that recommendation is unique to law professors or academics in general. I don't take her to be suggesting otherwise. But it's a broader recommendation that doesn't apply solely to law or other professors.

Second, there is one situation I didn't mention in my comment, which was quite long enough, that is relevant in considering the "problem," if it is one (I think it is), of law professors' behavior on Twitter. I talked about cases where the academic asserts or trades on her authority as an academic, even on issues that are outside her actual expertise, or on questions within their field that don't benefit much from their actual expertise. There is yet another way or instance in which (legal) academics trade on their status and ostensible authority in cases in which that status has little to do with the substance or argumentative style of what they write. That is when they write not in a merely "engaged" fashion, but one that is driven largely if not solely by passion. I say "driven" rather than motivated. There's a difference, for my purposes. One can be motivated by passion to write, while still writing in a way that is not consumed by that passion. But plenty of academics' posts are so driven by the writer's passion that most of their actual expertise and, especially, their critical judgment contribute little or nothing to the post. Such posts, when tied to the academic title, status, prestige, or ostensible expertise and authority of the writer, do great damage not only to the individual writer's credibility but more broadly to the ideas of academic authority and expertise themselves. There is plenty of room for healthy skepticism about authority and status and about the scope and limits of academic expertise. I have no wish to discourage that. But this goes beyond that, to erosion of even the sometimes deserved trust in institutions, in expertise, and in the value of those whose primary job is to think and rethink rather than to blurt or emote. It is most definitely possible for someone to be a genuine expert, and to tweet on a subject that is within their area of expertise, and yet to do so in a way that is so consumed by passion that any expertise or expert judgment on the part of the writer is essentially absent. 

Although I dislike that kind of writing, I'm not making any strong claim that people shouldn't write passionately on current events or anything of the sort. But I think those writers should admit to themselves that such posts have nothing to do with their academic authority and tend if anything to diminish it, and should write those posts expressly and clearly as citizens, with just their names and no fancy titles or academics affiliations mentioned. If they are aware that these posts have little to do with their academic authority or actual expertise and persist in invoking that status, precisely because they think people are more likely to follow them and give greater weight to those opinions if they do, then they won't much like this recommendation. Good. That would be a textbook case of trading illegitimately on their academic status. If that's not what they're up to, then they should agree that the worst that can happen is that fewer people will either read them credulously or read them at all. As I wrote above, that's not necessarily a bad thing, and to me it seems like a good thing: more respectful of the reader and of democratic equality, healthier for public discourse, and probably healthier for them as individuals and citizens too.     


Posted by Paul Horwitz on January 2, 2018 at 11:56 AM | Permalink


Funnily enough, I saw a link to the below speech, which contains the below wonderful passage... on twitter (source: https://twitter.com/daniellewenner/status/948639223166402561 ):

''Let me finish this argument by making a few comments on the obligations of the universities inside this debate; particularly the professors in the universities. In our system, we have something ­called tenure for our professors. Tenure has only one purpose. That is to guarantee the full and unbridled use of freedom of expression to our academics without the threat of losing their jobs. That is the purpose of tenure. There is no other purpose.

And therefore, I think it would be reasonable to expect that professors should daily ask themselves whether they are making full use of their tenure. It is not supposed to be about having a nice house or looking after your family or even being able to go off and research whatever you want. That is not its purpose. And so have one group in society which is actually designated to provide official intellectual leadership. The members of that group are supposed to use that intellectual leadership to go out into the public place – inside the universities and outside of the universities – to be heard. To be heard about what? To be heard about what they really think on the issues facing society. It is their job to be as annoying as possible. Nobody else in society has a contract which says to them that they are being paid in order to be annoying; they are being given a guarantee of employment structured precisely in order to encourage them to be annoying. It's called tenure.

Instead of that, the effect of the chimney, the specialization chimney so beloved in our universities, has been the exact opposite. It has increasingly suggested to the academic world that the purpose of tenure is to give you the time to work as a quiet and closed-in person; as an increasingly isolated specialist in your area – someone who doesn't speak out in public because you're only a specialist in an area which does not have natural public links to other areas; an area which is not broad enough to permit you to speak out on great – or even small- public issues, because they are broader than your specialist expertise.

Now, the Dean is sitting on stage with me, and I know that he speaks out. I've actually been on some public panels with him. There are a few professors who do speak out at this university and in other universities. But let's face it, it's a pretty small group. I'm not even sure it's a double-digit group in most universities. If you actually started making the list of how many of our tenured professors are publicly known for their opinions, I'm sure you'd find it's a pretty low number. In other words, tenure is not being used for its real purpose.

Perhaps the Chancellor will be very unhappy to hear me saying this. I don't know, sir, but I think that it is very healthy in a democracy to have spirited and disorderly debate. And if there are any natural and in fact identified leaders for such a debate, it is the tenured professors. I can see from the smile on your face that you at least partly agree with me.

Because this is not what is happening among the tenured professors, I would encourage them to get out there, into society, outside of their silos and chimneys, and to speak as broadly as they wish and can on the subjects that interest them. I would encourage them to think of their specializations, yes in the habitual vertical terms, but also in unhabitual horizontal terms. Their presence is needed in the public debate. They must not allow the checks and balance system of current intellectual examination to make them feel that they need to be careful about what they say. To imprison their minds in chimneys. It is not actually a central characteristic of intellectual integrity to spend one's time being careful.

I think Socrates made that point pretty clearly. Now maybe you are not interested in drinking a potion that will put ­you out of business. Nevertheless, he made the point. The very fact that we're still talking about his point 2,500 years later suggests that he may have been making a very relevant point. Speak out and take risks.'

From a 2003 lecture by John Ralston Saul at the University of Calgary. http://archive.gg.ca/media/doc.asp?lang=e&DocID=4026

I must confess I think he has a point or two.

Posted by: Paul Gowder | Jan 4, 2018 12:53:33 AM

Thanks for the comments. Some excellent points, some of which suggest difficulties indeed for what I have recommended. A few (but not brief) responses:

It's true that Twitter is a tool, and that Twitter arguably satisfies pre-existing human urges. I'm not sure I would personally equate The Devil's Dictionary with Twitter: the former, among other things, was edited, took time to write, consider and reconsider, and publish, and did not allow for an instantaneous set of reactions. I'm sure there are people who use Twitter well, and who might be modern-day Bierces. They seem few and far between to me. I do tend to think that while it's a mistake to fetishize a new communications medium and treat it as radically different from all that has come before, it is not wrong to think about the ways in which a new medium influences or infects our ways of writing, thinking, and interacting. I certainly feel different--and worse--after a half-hour on Twitter than I do after a half-hour of reading a book, even when I limit my visit to a few people who write well and with reasonable civility (and wit). I certainly agree that there are other ways to use Twitter as an academic that have little to do with the kinds of things I'm writing about here and that have value. (The series of tweets cited above go on to counsel some hesitation about criticizing self-promotion. If you go to my SSRN feed at the right you'll find something I wrote before tenure about self-promotion in the Connecticut Law Review's online supplement, reflecting some ambivalence but certainly not outright rejection. My short take here is not to condemn self-promotion, which I engage in too, but to suggest that there are better and worse ways to do it--not just in terms of strategic success, but in terms of thoughtfulness and self-respect.)

Brad's point is excellent and well-taken, although I think the impossibility of effecting some absolute separation doesn't mean we might engage in *more* separation than we do now, with some positive effects. Among other things, the discipline of asking oneself whether a tweet or other social media post represents a scholarly or expert or authoritative intervention, or an inexpert or emotional or non-scholarly post in which one stands in the same position as any other politically involved citizen may be useful, and encourage valuable self-reflection. In some cases, it might encourage more candor, as in the op-ed I wrote about a couple of months ago that advanced an argument but acknowledged that it was not simply a statement of existing law. In others, it might move one to refrain from writing anything at all. And although you will certainly be aware that the Jones (or Tribe or Chemerinsky) who writes under his title is the same person who sometimes writes without it, there still may be useful effects if Jones sometimes prefaces a post or tweet or op-ed with, "This is not an academic intervention. I'm not making a well-supported legal argument here. I'm just another citizen engaging on this issue." It reduces the seeming authority gap between writer and reader, signals that the writer isn't staking his scholarly reputation on what he is writing, shows that professors can (and have every right to) engage in political debate without having to wrap themselves in robes of apparent authority, perhaps encourages them to speak more circumspectly when they *are* wearing those robes, and so on. You're right that none of this is either guaranteed or an absolute. But it might be better. Note also that there are lots of ways to be engaged, as a citizen rather than an academic, besides tweeting or other forms of public writing. An engaged law professor could, for example, subject her writing on public issues within or near her area of expertise to something like scholarly standards--or, more accurately, write more informally in such media but ask something like, "Would this embarrass me as a scholar?"--but also choose to engage in various concrete actions outside writing for the public, in places and ways that do not invoke her academic affiliations. (It seems to me that *some* amicus briefs are of a sort that deserve to be filed without any mention of academic affiliation. But I'm not taking a strong view on this.)

The "naming names" question is perfectly fair. The draft in my head had a specific reference which didn't make it into the final version. Having thought about it, I *think* the reason I didn't bother was not out of professional ambition and fear. But I'm not sure how deep or true such self-knowledge runs. Sometimes one just doesn't want to start a tiresome, tiring, and pointless fight, especially with the kind of person who, almost ex hypothesi, is happy to waste lots of time and "ink" being nasty. I know part of my thinking was that: 1) examples of the kind of writer I'm thinking about are common enough that the general point is not really controversial; and 2) I don't read everyone, and wouldn't want to seem to pick on particular individuals, especially if it seems to result in partisan imbalance. In any event, to have done with it and provide one example, I think it is pretty uncontroversial to say that many of us in the con law field think extremely highly of Prof. Tribe's scholarly writing (I'd add that my very few encounters with him have been lovely), and are much more ambivalent, to put it gently, about his tweeting. But I'd rather the comments not go off on a frolic about him or others. There are plenty of examples, and I find the general question about how academics should write on social media, and when they should or should not allow their academic authority to buttress the persuasive effect of what they write, interesting enough in itself.

Posted by: Paul Horwitz | Jan 3, 2018 3:05:45 PM

Again, as Brad illustrated, it's amazing that in order to present a contrary opinion in the legal academy you have to establish your anti-Trump bona fides.

Posted by: YesterdayIKilledAMammoth | Jan 2, 2018 10:26:14 PM

Re Orin Kerr's comment, I actually think it's an open question whether using examples to make general criticisms concrete would be a bad thing.

One big reason why it might be perfectly fine is that many of the law professors we have in mind tweet quite often and quite publically, going so far as to re-tweet someone else's quotation of their own original tweet. Their behavior emphasizes that their point is, among other things, to reach wider and wider audiences, not just converse with colleagues in a convenient forum. One's tweets are thus not only a public record, but by the very logic of any support for using Twitter in one's professional capacity in the first place, they are "fair game" for identification and criticism in just the way one's academic writings (or blog posts) would be.

There's no need to "pick" on anyone, of course -- take a single large, well-known law school and you can easily identify tenured professors on both sides of the political spectrum to concretize the various issues here. (And the "performative" element at play in many of these professors' tweets echos the point, I think!)

Posted by: Sam | Jan 2, 2018 9:05:49 PM

A potential difficulty with this exchange is that it could use examples to make general criticisms concrete. And yet for understandable reasons, there isn't much enthusiasm for using specific examples.

Posted by: Orin Kerr | Jan 2, 2018 6:08:47 PM

An example that comes to mind of exactly what you are talking about in terms of hurting the credibility not only of the writer but the field as a whole was the Emoluments debate last year. There were constructions of the clauses being offered by very prominent law professors that, if taken seriously, would have meant every modern President had violated the Constitution. A copy of "The Audacity of Hope" purchased by a foreign diplomat while Obama was President would have fit many of the arguments being made to a T.

Nor did anyone explain exactly how the blind trust solution they kept pushing was supposed to solve the problems created by their overly broad definitions of an emolument. If the ultimate beneficiary of the trust is the President and the ban is on receiving a thing of a value then what difference does it make whether or not there's a blind trust?

The whole episode did nothing but cause me to lose respect for Tribe and Chemerinsky and "prominent constitutional scholars" more broadly. And I say that as someone that loathes Trump.

However, to swing back to the point of your post, I don't see how this loss of respect could have been avoided. If the op-ed and interviews had not included the little blurbs that described who Tribe and Chemerinsky are, I would still have known. And as a practical matter I don't see how they could have convinced reporters/editors not to include them. I think when law professors opine on the law they are inevitably leaning on their authority and expertise and so putting respect for them at risk. It seems like your solution of using one's plain name is a good one for those issues that are clearly outside the ambit of one's professional competence, but for those issues that could easily be confused for inside the ambit, the only reasonable solution is to abstain.

So, for example, if you are an expert on social security law than opine as the J.D Rockefeller Professor of Law at Columbia when interviewed about social security regulations. Opine about how the Mets are doing this year or how terrible a mayor De Blasio is as John Doe, private citizen. And don't publicly opine on the section 199A of the new tax law at all. Not even if you really hate it a lot.

Posted by: brad | Jan 2, 2018 5:52:01 PM

I too have several thoughts but the one I want to focus on is that the urge to Tweet existed long before Twitter. Take a famous book like Ambrose Bierce's "The Devil's Dictionary". That is essentially a book of sarcastic, cynical..even crude...tweets. It is certainly not a nice book. Yet it was named one of "The 100 Greatest Masterpieces of American Literature" by the American Revolution Bicentennial Administration according to the all-knowing Wikipedia. Another example, this time from ancient history, is The Golden Sayings of Epictetus.

I wondered a time or two what we would think of Bierce today if he had access to Twitter--would he be a lesser or greater person because of it? I don't know, it's counter factual, but I ask the question as a way to resist the notion that Twitter invented a problem. It did not. Twitter created a platform for the expression of a human urge that has been around for as long as there has been writing.

Posted by: James | Jan 2, 2018 5:33:57 PM

Alexandra made a very good point (in her twitter response) regarding the importance and value of twitter to build relationships within the legal community. Her contribution relates more to the tweeting-among-professors rather than the more passionate tweeting-by-professors-to-the-public that I think is the primary topic of this blog entry and the original entry. But I wanted to "second" her remarks. I am relatively junior. Engaging with other professors in my area on Twitter has allowed me to build new relationships on the basis of shared interests and complementary expertise, without traveling to more conferences, and it has resulted in invitations to specialty conferences and requests for collaboration that I simply would not have had. This is especially valuable for professors in hard-to-access locations (outside of big cities with big airports) or with family obligations or health issues. I value Twitter for this reason, but I also am frequently dismayed by the sloppy and passionate tweets of some law professors on political issues and on legal issues about which they are not experts. Like all tools, it can be used for good or for ill.

Posted by: anon | Jan 2, 2018 1:32:12 PM

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