The Law Professor’s Role

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3 Responses

  1. Bob Lawless says:

    Thank you. I had the exact same reaction to this NYT article and agree with most everything you have written. And, my intuition is the same and also deserves the label “ill-formed.”

    On the amicus brief issue, courts generally require disclosure of the interest of the amici. If a professor was paid for writing or signing an amicus brief and failed to disclose that, severe court sanctions and professional disciplinary actions should be on the table. I also think it is an ethics issue in which the professor’s home academic institution should take an interest.

  2. nidefatt says:

    Curious. You seem to think there’s such a thing as a disinterested party. It is true that occasionally an expert merely throws light on an area on which there can be little disagreement. But in the law, we rarely need such people, we are after all, perfectly capable attorneys. What academics have that we don’t is the time for doing deep and involved research. If there are judges that see amici as being nonpartisan, they are fools. Even if you have no dog in the ultimate questions presented, all litigation is war, all determinations of truth are battles of opinion.

    If blogs present a problem at all, it’s that academics tend to write when the spirit moves them, prior to doing the research they are generally known for. They start to make assertions they shouldn’t, and then to protect their reputations, they look only for facts that support their stupid assumptions. That is the trend I’ve noted at least.

  3. Frank Bowman says:

    Having spent some 17 years in the trenches as a criminal trial lawyer before coming to the academy, I undertand the “litigation as axe fight” mentality. And I spent many a happy hour up to my knees in rhetorical gore. However, I do think there is, and should be, a difference between what litigators do and what professors do – even when the professors dabble in warfare.

    For myself, at least, I try to make it very clear what role I’m playing. When I am compensated to help in a case, I do so only as an advocate, not as “expert witness.” If I write or sign an amicus, I do so only if I believe that the positions taken in the brief are legally sound and consistent with my own true opinions and not, as might be the case if I were acting as a paid advocate, merely the best legal face that can be put on the client’s regrettable situation. This position allows me at least to hope that a judge seeing an amicus brief with my name on it will give it whatever added weight any small reputation I may have acquired in my field will lend it.

    This is another luxury, in addition to that of time, that professors have and working attorneys do not. You sing for your supper in the dual sense of having to make a living and having an ethical obligation to make the best argument you can for your client even if you don’t privately think it’s either good law or sound policy. We don’t. That is, we don’t have to get into legal fights on the side we disagree with. If we do that very often, then we risk being seen as no different than every other shouter in the legal arena. We may already be so far down that road that, as a profession, we can’t come back. But I’d like to think not.