Scholar-Bloggers as Secret Advocates

Over at Prawfs, Paul Horwitz has a provocative post criticizing lawprofs who have commented on the health care cases as advocates without saying so — and specifically, lawprofs who have been formally writing as scholars but really writing as advocates with a goal of “shaping the narrative” of opinion on the constitutional challenge to the mandate:

[T]here is . . . something wrong about yoking one’s reputation as a scholar and expert to the non-scholarly end of “shaping the narrative.” I’m not accusing anyone of doing this last week, although frankly it seems pretty evident to me that it happened and has happened before. And, clearly, not everyone believes there is something wrong with doing so. But I think there are good reasons to be disturbed by such conduct.

Does that mean no scholar is permitted to try to “shape the narrative” through blogging and other commentary, or that there’s something wrong with having a normative legal or political view about such cases and sharing them? Of course not. But it does say something about how one ought to do so consistently with one’s obligations as a scholar. The basic principle, it seems to me, is that your message, and the purpose of your message, should be clear. Someone who writes that current law clearly means X should mean what he or she says; “shaping the narrative” is no defense to asserting with confidence a view that one doesn’t really believe, or doesn’t believe with that degree of confidence. But one can always make clear, implicitly or explicitly, “This is my view of what the law should be, not what it clearly is under current law,” that one is urging a particular result rather than offering an impartial analysis of the issues, and so on.

I can think of a number of posts about the ACA from legal scholars last week that were clearly and openly offered as advocacy and did a fine job of it. And I can think of others that were clearly not offered as advocacy at all, and said useful and interesting things about the oral arguments. (I would put Mark Tushnet’s posts in this category.) But I do believe that some posts last week traded on the authority of their authors, made overconfident or disingenuous claims about the state of current law and the strength or weakness of opposing arguments, and did so for strategic reasons. I see those reasons as more inculpatory than exculpatory. I don’t see the minimal requirements for scholarly integrity that I offered as changing because of the medium, or because of the importance and currency of the case.

Again, that doesn’t mean legal scholars can’t act as advocates. But if they can’t do so openly–if they think it would somehow undermine the effectiveness of what they’re writing if they preface their claim with, “Of course I’m writing this as an advocate and not a scholar; if I were writing this with my expertise or authority as a scholar one the line, I would say something different”–then I would suggest that they are, in fact, doing something wrong.

I have similar concerns, for the same reason I agree with Paul with the Dick Fallon view of law professor amicus briefs. Taking on different roles is fine, but clear labeling to demarcate those roles is important. Of course, it doesn’t change the strength of the argument that individuals are making: Arguments stand or fall on their own. And I realize that the instinct among many legal academics to blend scholarly roles and advocacy roles is often strong one, both on the left and the right, that may be impossible to dislodge. But that blending of roles does create tensions, I think.

One counterargument is that perhaps Paul and I are naive, and it is understood that of course law professors publicly commenting on a high profile case are engaging in spin for their side. That’s certainly possible. That might explain why some have described my views as “pro-mandate” when I oppose the mandate: Perhaps my earlier effort to describe how I see the precedents fall are necessarily construed as secret advocacy in favor of the mandate.