As a lawyer, I would line up a thousand law professors to write or sign on to an amicus brief supporting my side in an appeal. I would do the same with cute kittens if it would help me win. You see, unlike the prawfs, my job is to prevail, and I would use whatever support I could muster to do so, and despite everything I’m going to say below, if I can bootstrap their scholarly cred to my advantage, you can bet I will.
But that’s because I’m a lawyer, and my job isn’t to do what’s best for society but what’s best for my client. What’s their job? Georgia State lawprof Eric Segall raises some sobering questions at Mike Dorf’s blog.
As the impetus for his post appeared at the witness table before a House impeachment committee hearing, Eric wasted no time putting the players in their place.
As I watched three of my favorite colleagues and Jonathan Turley testify in front of Congress last week, I couldn’t help wondering what should be the appropriate role for law professors in current political and legal disputes. Obviously the impeachment hearings raise this issue but so do amicus briefs, letters signed by law professors taking positions on major policy questions, and even media appearances and professorial use of social media platforms.
Brutal, but with panache. For an academic, Jon Turley has been very public, from his blog to his op-eds to his congressional testimony. As Turley is a person interested in political and legal issues, why shouldn’t he be allowed to opine on whatever interests him? Don’t I do the same? Don’t others?
But then, Turley’s a prawf, which implicates two distinctions. First, there’s the problem of collegial humility, that the Legal Academy has a love-hate relationship with media whoring; they absolutely adore their names in lights, while simultaneously looking askance at those whose writing or TV appearances are unbecoming. How they decide what’s unbecoming is a trade secret, but they know it when they see it.
The second problem is trading off their scholarly cred when it comes to opinions beyond their scope of expertise. If a prawf teaches tax law, should he be on the tube opining about immigration? Is his opinion any more valid or knowledgeable than any other random person’s outside his specialty? Then again, one might similarly question whether writing a bunch of barely read and potentially dumb law review articles makes one an expert on anything. Nobody ever questions whether getting hired by a law school and publishing a few tedious articles makes one a scholar for realsies.
But Eric takes it to the next level with the Impeachment Letter, “to Congress from Legal Scholars.”
Last week I received a request to sign a letter on behalf of a group of law professors, many my good friends, taking the position that President Trump engaged in impeachable conduct (disclosure Mike signed that letter). These requests have been coming much more frequently. Over 2000 law professors signed a letter saying Brett Kavanaugh’s demeanor at his confirmation hearing should have disqualified him for getting the nomination (disclosure: Mike and Neil were two of them). That demeanor question, quite obviously, does not implicate legal expertise.
I think letters like the ones above are different than requests for law professors to share specific expertise. For example, I have been teaching federal courts for 28 years and feel fairly comfortable with most federal jurisdiction issues, especially standing, which I have written a lot about. I have assisted litigators in the past with standing issues related to the filibuster and recently the Emoluments litigation. My intuition is that work is different than opining on Kavanaugh’s demeanor, or whether Trump’s efforts to get Ukraine to announce an investigation into the Bidens is an impeachable offense. But maybe that is an arbitrary line.
As noted in his opening, the four academics testifying before the House committee were immediately led into the mix of should Trump be impeached rather than the legal question of what are the bases for impeachment. Their opinions are no better, nor more credible, on whether to impeach Trump than anyone else’s. Yet there they were, wearing their pristine Scholar Caps, opining away.
The impeachment letter goes right to the heart of the matter.
We, the undersigned legal scholars, have concluded that President Trump engaged in impeachable conduct.
Well, that’s clear enough, except it’s not entirely true. There are over 750 signatories at the moment, but they’re not all prawfs (I might have seen a professor of interpretative dance in there somewhere) and not exactly legal scholars. As to their opinion on impeachment, not to mention the basis for their opinions, they have no greater legitimacy than anyone else. Yet, there they are, some big names like Chemerinsky and Tribe, lending their academic cred to the cause.
Should law professors aspire to be, at least in some sense, public intellectuals? I try very hard to distinguish my opinions based on scholarly expertise from my non-scholarly “I’m just a concerned citizen,” opinions. But do the former dilute the latter? Maybe. Also, who am I to spout off on non-constitutional law, non-federal jurisdiction questions? There is a little arrogance in all of that, and at times I wonder whether the negatives outweigh the positives.
Eric’s angst aside, he’s at least as entitled to “spout off” as anyone else. As for concerns about pissing off alumni or creating the appearance at public university law schools that he’s taking sides that reflect on his employer, why not? If I can do it, and you can do it, why shouldn’t he be able to do it too? Putting on a scholar cap doesn’t require Eric to forfeit his concerned citizen freedom to express an opinion.
But that’s not really his point, as he’s not speaking as Eric Segall, concerned citizen, but as Law Professor Eric Segall, whose opinion matters more than others because he’s a legal scholar, even if not on the subject about which he’s opining. As for me, I would take Eric’s opinion and use it without blinking if it served my cause.
As for the elasticity of scholarly cred, Eric is right to be concerned about how far it can be stretched, and should be wary of those who will stretch it as far as they can and, should it break, will walk away without barely a shrug. For real scholars, cred is their stock in trade. For lawyers, scholarly cred is just a commodity, to be bought and sold as needed, and discarded when it wears out or breaks.