Sunday, October 03, 2010

Questions and And Answers on Law Prof Advocacy

[Al Brophy commented on a previous post of mine, "Follow up On Rent Boys and Adoption." With his permission I have reprinted the comments here.]
Alfred Brophy said...
You say "The UF policy of finacial support for a cause based on faculty prerogative strikes me as a policy that one would never adopt under a Rawlsian veil of ignorance. It is one that says whoever controls the school get to use its resources to promote his or her idea." First, I think you mean whoever's employed by the school, not who controls the school. Second, it seems as though you are saying that UF faculty should not be permitted to argue against a state statute. So aren't you saying that people who "control" the school -- the state legislature -- can stop people from arguing against them?Are you drawing any distinction here between scholarship that criticizes legislation and advocacy against that legislation? Is there any distinction between advocacy that takes place on a faculty member's own time and that done on "company time"?
3:23 PM

Thanks for writing Al. I will try to answer what I think are four questions or at least address them although I cannot say I have this all figured out.
1. I view law schools as being controlled by the faculty. They decide who to hire, who to tenure, what scholarship is valued, what courses are in the curriculum, what programs are offered and whether a dean stays or goes. We probably disagree on this. My position is consistent with my arguments that law schools are, in effect, captured by faculty. I wrote about this several years ago.Sure, I guess a legislature could vote to close a law school (I doubt it could ban the expression of a particular person) but I do not think that is realistic.
2. On whether the legislature "can" stop someone from arguing against them I am not sure I follow. It seems like a legislature cannot stop anyone -- faculty or not -- from arguing against them.
3. I view scholarship and advocacy as quite different. To me scholarship occurs when an open minded person who is not out to prove a point, tests an idea by doing research. The product is a report that presents both sides of the issue and carefully explains the scholar's conclusion, if one. Advocacy is an effort to represent one side of an issue or a client. It means putting forth only the information that supports one's side and distinguishing adverse evidence. Advocacy and scholarship both appear in law reviews.
4. The last question is hard because you have framed it in terms of time. I don't think many of us make a sharp distinction. I do think a more useful distinction can be made between company resources and personal resources and the use of the company's institutional authority and an indication that the institution is unrelated to the view expressed.

Two final points that may not be responsive but may be useful as background. I personally would prefer more scholarship but I know there will be advocacy and it's fine. I would not stop it. I just cannot make the connection between being a law professor and, consequently, having a right to have his or her expression of political views subsidized unless others are offered a similar opportunity. This is especially true since I believe, as reflected in my last post, that the selection of the these speakers is basically a function of class and status.Finally, I am told that at my school some outside political efforts have been discouraged. Don't know if it's true but if it is I do not think we have a procedure for deciding what is in or out of bounds.

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