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Monday, December 09, 2019

Segall on the role of law professors

Eric Segall has an excellent post at DorfonLaw about the proper role for law professors in controversial legal and political disputes. The obvious trigger was the four prawfs who testified at the impeachment hearings. But Eric expands it to participation in congressional testimony, confirmation hearings, amicus briefs, letters on public matters, etc. And blogs--he questions whether writing publicly, in our professional (and professorial name) about matters beyond our scholarly expertise either trades on the professorial name or dilutes it.

Two thoughts. First, Eric references the letter that 2000 law professors signed arguing that Brett Kavanaugh's demeanor at his hearing was not judicial and should have been disqualifying. I did not sign for the reason Eric offers for not signing--the question of Kavanaugh's demeanor did not call for any scholarly expertise and was really a cover for political opposition to Kavanugh's appointment.* I had a heated debate with my wife and overly engaged daughter, who did not buy the distinction or the idea of trading on my position to suggest expertise on a contentious political matter on which I could speak not as an expert but as a "concerned citizen."

[*] Which I shared. And which I offered in emails to several Republican Senators (not my own, because I chose not to waste my breath), using my name but not my title or position.

Second, a blog, like other social media, strikes me as a different medium of work. I am trading less on my position and expertise and more taking an opportunity to write for a regular audience about things that interest me and about which I know something (even if I do not know as much about these things as I do about universal injunctions). Regular readers of the blog know and expect that some of what I write about is going to be non-expert interests (baseball, Judaism) or personal matters (family, etc.). And you understand that this is part of the forum and what I like to do here. That is different than using my professorial cache (such as it is) to talk about a non-expert matter to a new, unfamiliar audience in a different forum, such as the op-ed page of the The New York Times or an advocacy letter to a congressional committee.

Posted by Howard Wasserman on December 9, 2019 at 03:11 PM in Blogging, Howard Wasserman, Teaching Law | Permalink


Law schools have courses on courtroom demeanor for aspirin litigators, faculty who purport to be scholars of attorney and judicial ethics, who study judicial conduct, etc., what places judicial demeanor outside scholarship? There are rules of conduct for lower court judges, and scholars who study the topic. It may be that a significant portion of the signers have nothing much to say about judicial demeanor because they have nothing much to do with courtrooms and litigation, but that is not the claim.

Posted by: J. Bogart | Dec 10, 2019 9:03:52 AM

For whatever it’s worth, I believe you are spot on with your analysis here. And in response to those who say otherwise, what sources would you have a legal scholar turn to in evaluating a highly subjective qualification such as “demeanor.” It’s just not a serious field of study within legal jurisprudence. If I am mistaken please correct me.

Posted by: Thomas | Dec 9, 2019 11:42:57 PM

I think your blogging is (appropriately) more casual and less assuming than that of many law professors and that your description of your own blogging practices is accurate. But many law professors are quite obviously, if not explicitly, blogging to influence the courts. Sometimes that's not so problematic, because they're writing about something they're expert on, but there are those professors who trade on their title and modicum of expertise on one subject to offer inexpert views on everything else. That is a problem, if not a very large one (I hope -- that is, I hope judges and their law clerks don't pay undue attention to this sort of writing).

Posted by: Asher | Dec 9, 2019 10:17:11 PM

"I did not sign for the reason Eric offers for not signing--the question of Kavanaugh's demeanor did not call for any scholarly expertise and was really a cover for political opposition to Kavanugh's appointment."

An argument that a judicial nominee's demeanor would interfere with his ability to serve a higher court would appear to me to be partially a legal matter that legal scholars (or John Paul Stevens who at first supported the nomination) would have some expertise over & not merely be cover for "political" opposition.

Posted by: Joe | Dec 9, 2019 3:23:00 PM

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