March 30, 2011
The Two Year Tour: When Academics Return from (or Depart for) the Beltway?
Posted by Erik Gerding

In 2008, a number of Professors joined the Millionaires and Skippers (and perhaps a few Gilligans, Mary Anns and Gingers) for the fateful trip to go work for a new Administration.  Because of many University leave rules, their cruise will soon end as a two year tour.

What happens when law professors return to the academy after a stint in public service?  Does it give them a fresh perspective after seeing the sausage in production, one that enriches their scholarship?  Might the experience occasionally have some offal results - if a professor feels compelled to dull a critical edge and engage in political apologia? 

I respect the integrity of the professors I know who went to work for the Administration.  But a close examination of the experience of policymaking professors remains ripe for exploration.  What happens when professors can't just theorize about the "tensions" inherent in a rule, but need to make hard decisions about concrete rules?  What happens when these same professors return to the academy?

These types of issues came to the fore when academics returned from the George W. Bush Administration.  But the highly charged nature of law professors involvement with that Administration's national security policy may frustrate a careful examination of the broader phenomenon of academics as policy makers.

Similar concerns about the critical edge of legal scholars extends to other non-academic endeavours.  I had a professor in law school whose criticism of some of his colleagues active in appellate advocacy stuck with me, even if I didn't agree with it.  He argued that the prospect of returning to argue in front of the bench meant that these professors necessarily were careful not to make scholarly commitments that might come back to haunt them in future oral argument.  One reason this criticism may have stuck with me is that it struck me as slightly odd coming from someone who believed law was not at all distinct from politics.

But this criticism came back to me last month when I was drafting an amicus brief (more on that in a subsequent post).  Although I did not have a client (the brief was on behalf of law professors), the brief needed to be true to my scholarly views and the views of the other signatories.  At the same time, legal scholarship is an inherently critical enterprise.  The same exercise in the Socratic classroom of exposing the inconsistencies and difficult application of legal rules marks good scholarship.  But judges need to make decisions.   

The tensions between scholarship and policymaking or advocacy also come to the fore when scholars are nominated to executive positions and they face questions about their scholarly positions.  Elizabeth Warren, again a lightning rod, serves as Exhibit A.  Of course, nominated professors can offer the defense that their role as an academic differs fundamentally from their would-be role as judge or official.

Yet the example of Elizabeth Warren and the criticism of her scholarship also merits closer examination.  Aside from the substantive criticism of her views and work, there may lie an unease with the vein of advocacy itself in her scholarship.  Of course, advocacy is a part of much if not all legal scholarship.  Legal scholarship is not natural science.  Moreover, it is by nature a lot more applied than much of the social sciences.  We would delude ourselves if we would think rhetoric and advocacy could be neatly removed from legal scholarship.  But we would also be deluded if we thought there were not some deep tensions between advocacy and truth-seeking inherent in legal scholarship.

A better explication of these tensions will have to come from more scholars with more philosophical training.  But for now, consider the proposition that scholars embarking or returning from policymaking can lead us to ask some very intriguing questions about the nature of our enterprise and what we do when we do scholarship.  We can't answer the question about whether political experience affects the quality of scholarship (or whether scholarship is a barometer for fitness for a policymaking position) without confronting the the legal academy's unease about what makes scholarship "good" or without looking anew at old questions about the law's relationship to politics and ideology.  Those law professors passing through the veil of the academy offer very personal vehicles to explore these questions.

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