The Volokh Conspiracy

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Tribe considered "a traitor" for advocacy in climate change case


The New York Times has an interesting story about Harvard Law Professor Laurence Tribe's controversial work as a lawyer in an environmental case. Tribe represents Peabody Energy, a coal company, in an effort to stop an EPA regulation that would cut CO2 emissions from coal-fired power plants. The reaction has not been mild:

To many Democrats and professors at Harvard, Mr. Tribe is a traitor. "The administration's climate rule is far from perfect, but sweeping assertions of unconstitutionality are baseless," Jody Freeman, director of the environmental law program at Harvard Law School, and Richard Lazarus, an expert in environmental law who has argued over a dozen cases before the Supreme Court, wrote in a rebuttal to Mr. Tribe's brief on the Harvard Law School website. "Were Professor Tribe's name not attached to them, no one would take them seriously."

Mr. Tribe's legal claims, they concluded, are "ridiculous."

Mr. Tribe dismissed the criticism and said that his brief and comments reflect his views as a constitutional scholar, not as a paid advocate for the coal company. "I'm not for sale," he said. "I'll say what I believe."

"I feel very comfortable with my relationship with Peabody," he added. "Somebody wanted my help and it happened to coincide with what I believe."

But a number of legal scholars and current and former members of the Obama administration say that Mr. Tribe has eroded his credibility by using his platform as a scholar to promote a corporate agenda—specifically, the mining and burning of coal.

The article continues:

Anger from within the Obama administration about Mr. Tribe's actions is particularly fierce, although officials declined to comment on the record for fear of escalating the situation.

"Whether he intended it or not, Tribe has been weaponized by the Republican Party in an orchestrated takedown of the president's climate plan," said one former administration official.

More from Greenwire:

Tribe's advocacy has sparked a maelstrom of criticism from environmentalists and, notably, law professors who are lambasting Tribe's motives and questioning his legal theories. They have called him a "mercenary," "sellout," "pathetic" and "outlandish." More than one dubbed his arguments "complete bullshit."

"Tribe is, in my view, destroying his reputation as one of the most important and thoughtful constitutional scholars in the country," UCLA environmental law professor Ann Carlson wrote in a blog post.

UPDATE: The article implicitly raises an interesting question about advocacy by law professors: By what standard do you evaluate the legal arguments of a lawyer who is hired to argue a case and who also happens to have an academic job?

Is the relevant standard whether the argument is a winning claim based on existing doctrine? Or whether it is the best argument for the result that the client needs? Alternatively, is the standard whether the argument has a chance of working in the courts? Or, perhaps, is the standard whether the argument is consistent with some preferred result or normative theory—and if so, what normative result or preferred theory?

Put another way, when evaluating a legal argument made by an advocate who is also a scholar, are we supposed to evaluate the argument as a work of advocacy, a work of scholarship, or some kind of blend of the two?