The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Law professors have almost complete autonomy over how they spend their time. There are a few exceptions. Administrations set class schedules. Faculties dole out committee work. Etc. But for the most part, professors can unilaterally set the direction of their careers. That much is straightforward. The far more complex question is why do professors do what they do.
In many cases, a professor's experience prior to academia will inform her scholarly progression. A former public defender may focus on criminal procedure. A former corporate law may focus on bankruptcy. A former civil rights litigator may focus on constitutional law. And so on. But those decision are merely starting points.
Once in the field, (most) professors have to specialize. (I say most because I haven't quite narrowed down my field of study). What specific areas of criminal procedure, bankruptcy, and constitutional law do they wish to study? This winnowing-down process may happen organically. For example, a professor may write one paper, which leads to a second, which leads to a third, and before you know it, she has become an expert in a specific area.
This process may also happen deliberately. A professor may choose an area to focus on, and direct all scholarship in that area. Why pick that single area? Again, the professor's prior experiences in practice may inform that decision. But that experience is not dispositive. Many professors choose to depart from their experience in practice.
Why? Often a professor may say "I find that area interesting." The word "interesting" is meaningless. What the professor likely means is that area advances some cause the professors favors. Whatever that cause happens to be: criminal justice, textualism, racial equality, the separation of powers, reproductive rights, originalism, economic fairness, etc. There is some normative driver behind a professor's choice to proceed in a certain area. Professors seldom acknowledge that root cause.
Law professors have an additional outlet that other academics lack: litigation. Law professors can participate in litigation through amicus briefs. Often, these briefs are drafted by lawyers, and scores of law professors place their signatures, and not much else on the briefs. Some law professors take the lead, and draft their own amicus briefs. And in rarer cases, law professors actually represent parties as counsel–sometimes as lead counsel.
Why do law professors choose certain legal causes? For the same reason they choose certain areas of legal scholarship. At bottom, everything law professors do–indeed everyone, for that matter–is motivated by their notion of the common good, whatever that common good is. This is a subjective choice, and is hard to pin down precisely. People are complex. They have dueling motivations, which are often at odds with each other. Professors may favor policy X in one context, but policy Y in another, even if those positions are hard to reconcile. That tension doesn't make the professor a hypocrite or a bad faith actor. Rather, the tension merely reflects the human nature of scholarship. I never try to figure out why people do what they do. Most people don't even understand why they do what they do. How am I supposed to figure it out for them?
The choice to pursue certain causes, of course, opens one up for criticism. In academia, as elsewhere, it is always simpler to choose the path of least resistance, and avoid unpopular positions. As the saying goes, "Talk less, smile more, don't let them know what you're against or what you're for." But not everyone chooses that path. I sure as hell don't. I take lots of unpopular causes–even before I was tenured. St. Jude would be the patron saint of my academic portfolio.
I frequently debate at law schools (or at least I used to), and would hear similar questions: How can you defend position X when it will lead to people getting hurt? Here are paraphrases of questions I've received over the years.
- My mother is alive because of the Affordable Care Act. How can you possibly oppose it? (I received this question long before the current ACA challenge).
- My son was murdered by gun violence. How can you possible oppose gun control laws?
- President Trump is a racist/bigot/xenophobe/etc. How can you possibly support any of his policies?
- How can you possibly defend hate speech?
And so on. I do my best to reply, even as I am being protested. I explain that there are other principles behind these issues. The separation of powers. The First Amendment. Etc. And I think these other values are important for the the rule of law. My answers to these questions are never satisfactory. Why? Because the person asking these questions has a different conception of what is in the public interest. And I don't try to persuade them otherwise.
This post was inspired by a recent kerfuffle on Twitter. I have now been off the platform since January, and I am a much happier, and more productive person. I am especially thankful to have been off Twitter during Blue June. Occasionally, friends send me tweets. Rather than respond on Twitter, I'll respond here.
Ilan Wurman, a professor at Arizona State, filed a suit that challenged the Arizona Governor's shutdown order. He argued that order violates the state constitution law. I have no insights into whether his claims is correct. The suit builds on Ilan's work on the non-delegation doctrine.
I find it profoundly troubling to see junior law profs use their time and scholarly work to undermine exceedingly reasonable public health measures designed to save lives. YOLO I guess.
— Anthony Michael Kreis (@AnthonyMKreis) July 11, 2020
Anthony's criticism is one I have heard many times before. And it rings hollow. Everyone has a different conception of the public good. For some people, like Ilan, the structures of the state Constitution are very important. And the Governor may have transgressed those limits in an effort to promote public safety. Maybe Ilan is right. Maybe he is wrong. But it is an empty criticism to say Ilan's work is "troubling." This criticism does not assess the merits of Ilan's work. Instead, this subtweet attacked Ilan's choice to pursue this matter altogether. Anthony's argument is designed to merely dismiss an argument, because of its consequences.
Co-Blogger Orin provides a response:
If that's right, is your objection that another junior lawprof could disagree so much with your view of the public interest? To the specific legal arguments he is making? The idea of law professors taking their views to the courts? Some combo? Thanks. /2
— Orin Kerr (@OrinKerr) July 11, 2020
If Ilan's argument is right, the Court should rule in his favor. Not all public health measures are lawful. If his argument is wrong, the Court can rule against him. And his arguments can be criticized accordingly.
Ilan has courage to take a stand for a cause he believes in. Courage is lacking in our society. It is not courageous to take a position that is popular. Courage is taking a position that you know will be unpopular, and doing it anyway. I wish there were more scholars like Ilan who have the fortitude to talk more, and smile less.