February 07, 2013
Pildes on the Legal Academy and the Temptations of Power
Posted by Erik Gerding

Richard Pildes (NYU) recently posted on ssrn a thoughtful book chapter that confronts law professors with a series of tough questions about the trade-offs of becoming engaged in the policy process, which ranges from co-authoring an amicus brief to serving in a President’s Administration or even running for office. (The abstract is at the end of this post).

Pildes intentionally seeks to raise more questions than answers. Although much of his essay may not strike the reader as new, it renders an invaluable service nonetheless by renewing the call for legal academics to reflect on the inherent conflicts between critiquing the law and helping interpret, apply, or construct it. This is itself a variation of the ancient tension between describing how the law is and how it ought to be.

Pildes sees a generational divide among legal scholars. On one side, he places the generation of scholars like Bruce Ackerman, with a legendary disdain for engaging the political process. On the other side, Pildes claims younger scholars are more likely to write to shape policy and to be active in litigation, consulting, and government service.

I’m not so sure this is factually correct. (I can think of numerous older and mid-career professors on the Harvard faculty when I was a student who served in Presidential Administrations, worked on law reform, or argued before the Supreme Court). Perhaps the trend is cyclical. Pildes surmises that the generational shift he sees may stem from two Democratic Administrations in the past two decades. The existence of this generational shift seems like an area ripe for empirical study.

Pildes follows a provocative essay by Richard Fallon (Harvard) two years ago critiquing the standards for law professors co-signing or authoring amicus briefs (here are both a draft and final version). Fallon’s essay generated both NY Times coverage as well as equally incisive replies (e.g., Amanda Frost’s (American) essay).

The Fallon debate yielded a particularly useful harvest. It prompted many academics to articulate their standards for writing or co-signing amicus briefs. The academy needs a similar debate to offer guidance to professors (particularly, but not exclusively, junior professors) on other aspects of policy engagement. What should professors consider in testifying before Congress or an agency? When to take on consulting or litigation work?

The questions Pildes raises assume a greater urgency because of institutional pressures he does not address in the essay. Budgetary pressures will undoubtedly pressure law schools and professors to seek more soft money grants and big hard money donations to fund programs and professorships. To what extent will this put pressure on the valuable role of academic dissent that Pildes rightly cherishes? This institutuional economic pressure may present more of a challenge to dissent than revived questions about academic tenure.

It is, however, by no means a new challenge. Bruce Ackerman, for example, holds the Sterling Professorship at Yale, which was funded by John William Sterling, founder of Shearman & Sterling and counsel to Standard Oil, Henry Ford, and Jay Gould. But institutional pressures on law schools and professors merit re-examining again and again with fresh eyes.  

Here is the abstract for Pildes' chapter (after the jump):

This essay is meant to prompt professional self-reflection for academics, particularly legal academics, on the appropriate relationship between the pursuit of knowledge and the pursuit of power. 

Academic institutions, in theory, should be among the most robust sites in which dissent against conventional or widely-shared views of policy and law ought to find easy expression. That has long been part of the justification for the general principle of institutional academic freedom, as well as for specific organizational features of the academy, such as tenure. 

Yet the legal academy risks being more compromised, and increasingly so, in its ability to play this role than is often recognized. The reason is the paradox of the relationship of legal academics to actual political power. Legal academics are not just independent scholars of public policy, law, legal or political institutions. They are also often direct participants in the systems of public and private power they study. Unlike academics in most other disciplines (except, perhaps, economics), legal academics have greater opportunity for effective influence over policy, law, and politics. The various forms of practical engagement which legal scholars undertake -- consulting, litigating, testifying to Congress or courts, service in government -- have significant benefits, both in the classroom and in scholarship. But they also come with significant risks, including risk to the ability to play an essential role that justifies academic institutions, the role of being able to stand apart from existing constellations of power or interest or conventional wisdom on issues of moment.

This essay identifies the various ways in which the paradoxical position of the legal academic and the temptations of access to political and legal power threaten the ability of the legal academy to be a source of dissent. The essay then explores how legal academics ought to think about the benefits and risks of the unique position of academics closely connected to the institutions and actors who wield actual political and legal power. I emphasize that the foundation for considering the role of legal academics as potentially important sources of dissent must be a belief in the existence and importance to collective decision making of expert knowledge about the kinds of questions legal academics teach, research, and write about. This premise needs emphasis because many forces press against it. American democracy since the Jacksonian era has always contained a strong strand of anti-elitism capable of being mobilized by political actors against various claims to specialized knowledge and expertise. 

In my view, Intellectual independence, and the capacity to dissent from various orthodoxies and structures of power is more difficult to attain and maintain than academics often recognize. That is so even though academics are institutionally and structurally situated to be in most able to resist the political or ideological conventions of the moment. As one example, I discuss the political scientist Arthur Schlesinger Jr.’s distortion of history in his public attempt to legitimate President Truman’s unilateral decision, without congressional authorization, to commit massive military force to defend South Korea against North Korea’s attack in the 1950s. The unauthorized Korean War was a turning point in American political practice regarding unilateral presidential commitments of military force. Twenty years later, during the Vietnam War, Schlesinger publicly recanted and acknowledged that he had distorted the history to support Truman’s war. 

This necessarily brief essay is meant mainly to raise and provoke further discussion of these issues, rather than to offer a comprehensive analysis. It is not offered as a moralistic exercise, and I have engaged in many of the practical activities I describe. But power -- political, financial, and other -- is seductive, and the tensions between it and intellectual independence are central to the modern legal academy and warrant fuller discussion.

 

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