As much as practicing lawyers may disdain the pontifications of the academic elite, who easily spout caselaw and theory as if oracles of the law gods, the tacit reality is that law professors in the well carry that extra bit of credibility when offering their arguments.

They are what we are not: scholars.  We make a highly technical argument that compels a judge to think hard and it’s dismissed out of hand. They make the same argument and, boom, it’s considered. The same is true of outlandish arguments.

To the practicing lawyer, this really burns our butts.  We may be every bit as sound in our position as the prawf, but we’re just plain, old advocates.  But who is a judge to dismiss a scholar with the imperial wave of the hand?  It’s not that they necessarily win the point, but at minimum, they are taken more seriously. A world renown constitutional scholar must know something about the Constitution, right?  He cannot simply be ignored.

Harvard’s Larry Tribe is such a scholar, which is why his representation of Peabody Energy to challenge environmental limitations designed to stave off global warming caught some serious attention.

Laurence H. Tribe, the highly regarded liberal scholar of constitutional law, still speaks of President Obama as a proud teacher would of a star student. “He was one of the most amazing research assistants I’ve ever had,” Mr. Tribe said in a recent interview. Mr. Obama worked for him at Harvard Law School, where Mr. Tribe has taught for four decades.

Harvard. Liberal. Four decades. Obama. Plus global warming. Do the math.

Next week Mr. Tribe is to deliver oral arguments for Peabody in the first federal court case about Mr. Obama’s climate change rules. Mr. Tribe argues in a brief for the case that in requiring states to cut carbon emissions, thus to change their energy supply from fossil fuels to renewable sources, the E.P.A. is asserting executive power far beyond its lawful authority under the Clean Air Act. At a House hearing last month, Mr. Tribe likened the climate change policies of Mr. Obama to “burning the Constitution.”

This is where the equation appears to fail, the math doesn’t work.  Liberal Obamaphile Tribe is, facially, on the side of the devil here.

To many Democrats and professors at Harvard, Mr. Tribe is a traitor.

Academics are lining up to attack Tribe’s arguments:

“Were Professor Tribe’s name not attached to them, no one would take them seriously.”

Mr. Tribe’s legal claims, they concluded, are “ridiculous.”

And while Tribe ripostes that his arguments are entirely consistent with his beliefs, the fact remains that what Peabody Energy bought wasn’t the words on paper of a brief, but the cred of a Harvard legal scholar that magically turns spurious arguments into serious considerations.  And that’s the rub.

At Volokh Conspiracy, Orin Kerr notes in an update to a post on Tribe the problems attendant to academics moonlighting as lawyers.

The article implicitly raises an interesting question about advocacy by law professors: By what standard do you evaluate the legal arguments of a lawyer who is hired to argue a case and who also happens to have an academic job?

Put another way, when evaluating a legal argument made by an advocate who is also a scholar, are we supposed to evaluate the argument as a work of advocacy, a work of scholarship, or some kind of blend of the two?

Notably, Orin does a bit of moonlighting himself, and so frames his question in a different way than I would.  While the answer to Orin’s question should be obvious, that the argument must succeed or fail on its own merits, the fact remains that the scholarly credibility of the advocate affects a judge’s consideration.  And indeed, when the scholar takes an advocacy position on an issue, it carries the same scholarly credibility.  That’s a problem.

From the trench lawyer perspective, the question is whether it’s abusive and improper for the academic to sell his attributed credibility to the client.  Practicing lawyers tend not to be too picky about this subject, as our role is clearly that of advocate. No judge is fooled by the fact that we’re in court representing a client. That’s what we do. While most lawyers are disinclined to argue positions which they abhor, they make their decision up front by not accepting the representation.  Once in, they do their job.

The same problem presents itself when academics decide to embrace “some preferred result or normative theory,” and spin their purported scholarship to promote their cause. A flagrant example of this is seen with lawprof Danielle Citron’s Cyber Civil Rights initiative, and baby lawprof Mary Anne Franks’ anti-revenge porn advocacy.

Both happily argue bizarrely distorted versions of First Amendment law, relying on their academic credibility to overcome the ridiculousness of their positions.  While they may come upon their advocacy honestly, whereas Tribe is accused of selling his scholarly gravitas, both bootstrap their academic credentials to sell snake oil.  Intellectual honesty is abandoned for the greater purpose of scoring points that would be ridiculed had they come from a non-academic’s mouth.

Is it wrong for an academic, a scholar, to abuse his academic credibility by selling it to the highest bidder, or deliberately making glaringly nonsensical arguments based on appeal to scholarly authority?  Of course it’s wrong. But the solution isn’t that a law professor shouldn’t be entitled to serve as advocate, despite the fudging of the line between the roles of advocate and scholar.

Rather, as is happening with Tribe as his fellow academics call him out as an academic traitor, it’s incumbent on the legal academy to note when one of their own has used their academic cred in a way that confuses their roles as academic and advocate, and plays one off against the other.  In doing so, they put the integrity of the academy in issue, and if other scholars value their integrity, they have a responsibility to not allow one of their own to make people stupider, to hide their advocacy behind the ivy covered walls of academia, to use their scholarly chops to pursue personal advocacy that is lacking in intellectual merit.

It would be best if these academics openly confessed their intellectual dishonesty, but that won’t happen, as it would undermine their strongest weapon in the fight.  Since we can’t trust the intellectually dishonest academic to come clean, the duty falls to the rest of the legal academy.  Yet, scholars are loath to call out the dishonest among them as a matter of academic comity.  But if they don’t, then they too have squandered their scholarly credibility, and the academy as a whole is rendered undeserving of being taken seriously.

Law professors can be scholars or advocates, but not both. We need to recognize the roles they assume, and they need to be held accountable when they abuse their credibility as academics to gain advantage in advocacy. When they are advocates for a cause, they deserve no greater credibility than any other lawyer.  And when they fail to call out a colleague for intellectual dishonesty and abuse of their scholarly credibility, they are complicit in the intellectual dishonesty.