Why Do Law Professors Do What They Do?
Disagreeing with Josh Blackman.
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.