Wednesday, October 15, 2014

Scholar, Advocate, or Both: With a HT to Prawsblawg

Suppose you are a historian and a great admirer of Martin Luther King. By digging around in various historical documents you discover he was a pedophile. Do you write about it?   Or let's suppose you are a huge supporter of ObamaCare and know it will mean care for millions who go without. You read the law carefully and based on your understand of the Act and the Constitution, you believe ObamaCare is unconstitutional. Do you  stay silent?

Paul Horwitz over on Prawsblawg wrote a fascinating post that opens this can of worms. To some extent, the issue can come down to whether you are an advocate or a scholar, but I am not sure of  this, and the issue extends to what role a law professor should play.

As a preliminary matter let's be clear that an advocate can be passive or active. The pro Obama care professor discovering the constitutional defect who says nothing is an advocate just as the agenda driven law professor who writes thousands of pages on the matter.

But what is the distinction between the advocate and a scholar? The scholar does research to find answers to often difficult question or to test hypotheses. He or she is not driven by wanting to find something that supports his or her point of view but instead, is gratified by finding an answer even if that answer is inconvenient. The advocate presents his or her case for a position with carefully selected arguments. There is no effort to find the truth but, rather, to bring you around to a point of view that has two sides -- otherwise there will be no reason to advocate a position. I do not know if  it is possible to be a pure scholar. I know I sat on a topic for years and did not write about it because I felt the analysis would reveal something that cut against my personal beliefs. I certainly was not a scholar in that case.

What should law professors do? First let's be clear. For many "scholarship" is the process of  having ideas as clients and writing long briefs, called law review articles, in support of the client. In virtually every case the client behind the idea is the law professor him or herself in that the position taken is consistent with purely subjective political beliefs. Thus, a high paid law professor may take the salary from his law school and spend all his time writing in support of his political views in their various manifestations. These folks are simply being lawyers and now they have found a way to express themselves on behalf of themselves on someone else's dime. I know, I have done it too.

The problem is that if law schools are ever going to be viewed as legitimate graduate level colleges the trend needs to be more toward scholarship. This is hard for two reasons. First, unlike other graduate level teachers, law professors are not trained as scholars. The idea of testing an hypothesis is foreign to many.  Second, without question they can point to the hypocrisy  of  so called sciences  in which numbers and outcomes are fudged and then the outcomes reported as scholarship.

In any case, did anyone imagine when law schools started that a professor making 250,000 a year, half or a third of which goes for scholarship, would then believe the money is meant to be used for him or her to promote a particular political position?  The decision to do that is evidence of a powerful sense of entitlement.

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