Monday, April 11, 2016

Advocacy and Law Professors

I have noted prior to this that law professors tend to write advocacy as opposed to scholarship. The key distinction is whether  ahead of time you know what your conclusions are likely to be and whether subtly or with a hammer drive these points home.

In many respects there is  very little to separate law professor advocacy scholarship and expert witnesses who are called to testify on behalf of one client or another. When there are differences the expert witnesses come out ahead on the ethics scale. This may not surprise anyone but me. For years I ranked expert witnesses as the lowest of the low. Having been an expert witness, I observed testimony that only money could buy and the view of many experts that the function of the profession is to support the highest bidder regardless of the truth.

But why are they superior to law professors who write advocacy? Expert witnesses present their version of the truth but almost always face someone who will present the other side. In addition, they know they will be subject to cross examination which includes the possibility of exposing conflicts of interest. Although the truth does not always prevail, it at least has a chance. With the law professor advocate, that is less so.

Perhaps more important is that with expert witnesses the pretense of objectivity -- even though it may exist -- is dispensed with. Law professors can be advocates in their scholarship. In addition, many are on retainer or of counsel to law firms and write so call "friend of the court" (amici) briefs in which they purport to bring their wisdom to bear to one issue or another. Often this includes pleading with other law professors to sign those briefs.  In fact, does anyone actually believe they ever take a position without considering the position that most favors the firms paying them. Or does any think that many do not get their marching orders from their other employers? Finally, does anyone believe this advocacy is not done while on the payroll of tax and tuition payers? In effect, law schools end up subsiding one side of a case they may know nothing about.

Pretty clearly advocacy is not scholarship and no self-respecting institution would treat it as such. But the bigger question is whether law schools should continue to subsidize those who write advocacy and thus, indirectly, subsidize their clients or the firms retaining them. Might as well mail in a contribution to those benefiting.

I have another possibility drawing from ancient history of the regulation of broadcasting. All topics written on by law professors should be publicly announced. When it is advocacy, whether in the guise of scholarship or an amicus brief, those with the opposite position should be given a chance to respond, also on the law school's dime. It is called the "fairness doctrine."

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