Why Do Law Professors Do What They Do?

Disagreeing with Josh Blackman.

|The Volokh Conspiracy |

Last week, Josh wrote, with regard to why law professors write about particular subjects:

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.

I can't speak for law professors, but only for myself. The primary reason I write on the topics I do is, in fact, because I find them interesting. When I write about constitutional history, I get to read history books, and learn about all sorts of things I would be interested in regardless of my job.

I fell into my research on scientific evidence by accident while I was still in law school, and pursued it at first in part because I knew I was more likely to get a teaching job as an "evidence scholar" than as a "constitutional historian." But I came to appreciate the field for its own sake, and I have gotten to learn about all sorts of fascinating scientific issues that I would have otherwise been ignorant about. And best of all, someone actually pays me to learn about this stuff, and then tell others what I've learned!

Even when I've departed from my two main areas of interest, as when I wrote a book on conflicts between antidiscrimination laws and civil liberties, it was the result of an intellectual puzzle I wanted to solve. When I was in law school, I discovered that some aspects of the Fair Housing Act rather clearly interfered with freedom of speech. I asked a bigwig in the ACLU I met at a conference how the ACLU would resolve this tension; he didn't know. I resolved, in turn, to write a book about it when I had the chance. At the time, this issue was largely under the radar for academics. Eugene Volokh later started writing about it in the context of hostile environment law and related matters. Boy Scouts of America v. Dale was decided in 2000. But my book was still timely when it was published in 2003, and has become somewhat prescient as the conflicts have multiplied. It's "cool" to discover and write about an issue before it goes mainstream.

Which leads me to a related motivation for my work: finding issues that academics should be discussing, but have not been. My work on Lochner and minorities was motivated by a simple premise: when minorities had little political power, economic regulation was usually going to redound to their detriment, sometimes on purpose, sometimes simply because their interests weren't taken into account in the legislative process. Yet the academic literature, to the limited extent it discussed the issue, assumed the opposite.

None of that means that I don't have a normative position or perspective when I write. It's just that this is generally not the motivation for writing about those subjects–again, for my academic work. Blog posts are another matter.

Indeed, sometimes I intentionally avoid taking a normative position so that it won't skew my work. When I wrote Rehabilitating Lochner, I did not want to take a position on whether Lochner was correctly decided, because I did not want to be tempted to skew my historical narrative to support a preconceived normative conclusion. (It's also true that I'm not sure I know what "correctly decided" means when you are talking about an ancient case decided in very different times.)

As for litigation, I have never written an amicus brief as a law professor (despite many inquiries), and have no intention of doing so. I don't begrudge those who do, but I consider it an extra-curricular activity, like blogging, not part of one's core job as a law professor. And as I've told those who have inquired, if I wanted to write briefs and litigate, I would have stayed at a law firm; I did not become a professor to be a working lawyer. (I similarly have no desire to work in government, as many law professors do when "their side" takes over in Washington.)

It's quite possible I have a different perspective on this than many law professors. Some law professors may go to law school with the goal of "changing the world," and decide that entering the academy is the best way to do so. In my case, I first decided I wanted to be an academic, to devote my time to studying (and teaching) things that interest me. I narrowed it down to history and law, and chose law for a variety of reasons, including that it gave one a platform to weigh in on the issues of the day. But I never thought that the point of being a law professor, or in particular of my scholarly work, was to change the world. If I did, that would mean that I would have to suppress research findings that did not support my normative judgments, and if I had to do that, I wouldn't want to be a professor…

When I complete an article, or a book, I don't say to myself, "how might this change public policy, and how likely is it to do so?" Rather, and perhaps this is a bit narcissistic, I look at it like an artist might look at his latest artwork; like art, writing is a means of self-expression. Look at that elegant argument on page 23! I can't believe I'm the first one to uncover that important historical fact I discuss on page 45! Uggh, how did I miss that awkward turn of phrase on page 60? Of course, I hope others appreciate my work as well. My favorite type of compliment is when someone tells me that they enjoyed reading something I wrote, because it was well-written, well-documented, and made them think more deeply about the issue. Whether I persuaded the reader or not, much less whether it will meaningfully change the world, is secondary.

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  1. If you were stranded on a deserted island, would you still study law?

    1. Depends. Did a bunch of law books float on the island with him? 🙂

      1. Yes, a treasure chest full of legal documents washes ashore. Or perhaps there needs to be _new_ law created to keep Wilson in line.

  2. @Prof Bernstein: you’ve got some typoes in that last paragraph.
    * “like at artist my look at”
    * “that awkward nice turn of phrase”

    Other than that, I enjoyed reading TFA 🙂

  3. I agree with all of this. And people generally, not just law professors, often find what causes they care about simply because they had a genuine generalized interest in an area or subject in the first place. That natural interest and curiosity doesn’t go away simply because a cause has been discovered due to that interest. People can find things interesting in their own right independent of any causes they may support. And I don’t know about Josh’s law school or undergrad experience, but for the most part my professors seemed genuinely interested in what they taught and researched about and wouldn’t care if it changed the world or not. My contracts professor didn’t become a contracts professor to advance a cause: she just really really really liked contracts and thought the subject was fascinating.

    1. Interest in a topic goes a long way. I have bought a few books simply because excerpts showed how much the author really cared about the subject, and some of them really were fun to read and I did learn things.

  4. …..huh.

    Well said.

  5. Law professors and top federal judges and their top federal clerks are geniuses that do what they do because it’s a game for them. So take Justice Gorsuch and his recent liberal textualism opinion. Gorsuch needed to get to his desired result while maintaining his judicial philosophy because that is the nature of this game. So if it was simply getting a desired result with no judicial philosophy there is no game but maintaining a judicial philosophy is what makes the game challenging and attracts geniuses who enjoy the trappings of being a professor or judge.

    1. You’ve been fishing for compliments. Ok, so you’re a genius too.

      1. Nope, I am a pea brain 125 IQ person. I have several genius friends so I am comfortable around them but I don’t have what they have. So the true geniuses that I know came from families of geniuses but the siblings knew who was the really smart/highly motivated one and that sibling ended up at Harvard or CalTech and the others ended up at other Ivy League or equivalent colleges.

  6. So you’re saying law professors do what they do for the same reason everyone else does what they do; they need to pay the bills, and it is more pleasant to earn money doing something you find interesting than doing something you find unpleasant. You mean there’s no secret agenda to twist the world to your devious plans? Craziness.

  7. And FWIW, to the extent they have a devious plan to advance their secret world-twisting agenda…the plan is to keep doing the things they are interested in.

    1. But that’s my issue with a society that provides incentives for geniuses to enter the legal profession—other geniuses are developing spacecraft and cancer drugs while our society has brain power focused on law…just seems like a waste of brain power/talent.

      1. When I was in high school, there was a guy in the class above me who is almost certainly a genius. 35 on the ACT, super high SAT scores, aced every AP science and math class and test. If he wanted to he probably could have done extremely well in science in college and gone on to be a top scientist or doctor or engineer or whatever. But he really liked classics, so he took all those classes in undergrad then went to grad school and got his PhD in classics. Today he’s a professor who teaches Latin and studies Roman poetry. Now, someone may say that was a waste of talent, but he’s happy, and his students are happy to have him. So it’s not really a waste to him or them. And it’s not really a waste to society either, because what are the chances his brain is going to revolutionize science and technology in a way someone with less raw talent but more interest and passion is?

        So too with law. If geniuses are interested in it, it’s not a waste if they’re happy and the people they work for and with are happy.

        1. So multiple families of geniuses lived around me but the siblings I was friends with were closer to being normal than their true genius siblings. So whenever I would go over to their respective houses the true genius sibling was always working at something….I don’t know what a 16 year old could be working on but they were always working at something while we were playing sports or watching movies. So a true genius loves to work at whatever task they set their mind to. The siblings that went for PhDs were smart and hard working but they weren’t the really smart ones. So I think of the liberal arts professions true geniuses are attracted to are either economics or the law because they are most like science with little IQ games they can play. Now lawyers that make partner are a different breed of people than the lawyers that become law professors. Lawyers that make partner are highly motivated and highly competitive and highly focused but they aren’t necessarily geniuses interested in IQ games and living to a 100.

        2. LTG….really liked the example. I tell my children somewhat the same thing. Just do what you love; the money and the good life will surely follow.

  8. And here I thought they were in it because its a high paying low-effort job.

    1. I’m old enough now that some of my law school friends are law profs now.

      It’s *not* low-effort.

      Maybe once they get tenure, but I doubt it.

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