The Law Professor’s Role

I read this morning about Eugene Volokh’s engagement by Google to write what amounts to pre-litigation brief for the position that Google can be both a mere information intermediary for some purposes (allowing it to avoid liability for copyright infringement or libel) and a “publisher” with First Amendment protections (thus allowing it to privilege certain possible search results over others based, not on a neutral algorithm, but on considerations like Google’s own commercial interests).

I have no substantive dog in this fight because I know little of First Amendment law and less about the nuts and bolts of the way an internet search engine works. But Professor Volokh’s role does raise some questions with me. To what extent should we as professors sell our academic reputations to act as advocates? As the Times article notes, Eugene candidly avows that his paper is a work of advocacy in his capacity as lawyer and not a work of scholarship in his capacity as professor. And I sometimes represent clients in federal criminal matters or provide adversarial arguments to counsel on questions of federal sentencing law myself. So I don’t question the propriety of Eugene’s conduct here. But I have an ill-formed intuition that this sort of thing can be a problem.

One phenomenon that I see with increasing frequency, and that gives me pause, is the participation by academics in writing amicus briefs – and then rounding up signatures from other academics – in cases where the writer may previously have been consulted and paid by a party. The value, if any, of an amicus brief from legal academics is presumably that we provide disinterested expertise on which the court can rely with particular confidence. Moreover, in former times, it could reasonably have been assumed that an amicus brief from a professor was uncompensated labor untertaken out of concern for proper development of the law. But if our arguments are either directly paid for by a party, or follow chronologically a period in which the party paid for our advice, then the value of the amicus is diminished, as potentially is the value of all such briefs once judges begin to suspect that they are not really manifestations of disinterested scholarly opinion.

One obvious response to this concern would be a hard and fast rule that any prior connection between persons drafting or signing amici and any party must be disclosed. Certainly, at a minimum, this should be done. But even with disclosure, amici authored by academics paid by parties (or their supporters) seem to me a troubling phenomenon. At a minimum, such briefs seem to circumvent courts’ ordinary rules limiting briefs. Why, for example, should the government in a criminal case get only the briefs allowed by rule, while a well-to-do criminal defendant can get his own brief(s) PLUS more from academics on his payroll? Of course, so long as the academics disclose the connection, the courts can choose to police their own briefing limits.

But even if the courts don’t get up in arms, I worry that the proliferation of this practice devalues the institution of amicus briefs and risks devaluing legal academic opinion. If we are just another set of guns for hire, why should courts listen to us more than any other lawyer?

A second set of questions arises for professors like Eugene who have attained a high public profile through a combination of intellectual excellence and deft use of internet platforms. If one blogs as an academic and public intellectual and then publicizes the work one does as an advocate through the same internet platforms, is that kosher? Or does it, despite whatever disclaimers may be offered, somehow undesirably commingle the role of academic and advocate?

I candidly don’t know the answers to these questions. I’d be pleased to hear others’ thoughts.

Frank Bowman

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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.