The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
How I Approach Unpopular and Unconventional Legal Views
I try to follow my three guardrails.
In recent years, I have often found myself defending unpopular and unconventional legal views. For example, I argued that the President was not subject to the Foreign Emoluments Clause. I thought the private plaintiffs in California v. Texas had standing-through-inseverability. I claimed that President Obama's deferred action policies violate the Constitution's Take Care Clause. During President Trump's first impeachment trial, I contended that he engaged in politics, not bribery. During President Trump's second impeachment, I wrote that First Amendment should constrain the proceedings. And so on. At this point in my career, I am fairly accustomed to holding unorthodox positions, even where those views put me at odds with scholars in my own camp. So be it.
Still, I maintain something of a checklist to ensure that I have not gone astray. My internal Turing test is not a failsafe. But it keeps me sane.
First, I place myself behind the proverbial veil of ignorance, and ask whether I would hold this view without regard to the specifics of the current controversy. Often, that inquiry is easier: I had reached the view before the controversy arose. Other times, it is tougher, because the issue was so novel that no one—not even me—had considered it before.
I refer to the second checkpoint as the "scruffy-bearded weirdo" test. In Texas v. Johnson, Justice Scalia cast the fifth vote to halt a law that banned flag burning. But Scalia's constitutional commitments differed from his policy preferences. "If it were up to me," he said, "I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag." But, Scalia admitted, "I am not king." This Scalia quote has always resonated with me. I routinely ask myself whether my legal positions line up with my policy preferences. If they do, I redouble my efforts to ferret out motivated reasoning. But if my legal positions diverge from my police preferences, I feel more comfortable that I'd let the "scruffy-bearded weirdo" torch old glory.
The final guardrail focuses on whether I can, with full conviction, debate in favor of that position. I recognize that lawyers are skilled at arguing just about any side of just about any position. Law professors are in a unique position where we don't have to serve as hired guns. We can pick and choose which sides we advocate for. Or we can advocate for nothing at all. The perks of the job are nice. I am very careful about the positions I take. If I am not certain about some position, I will say so. Or more likely, I will stay quiet. Nota bene: if there is ever some contentious issue on which I do not opine, it's likely that the project did not tick the third checkbox.
I don't pretend my work will always satisfy all three guardrails. Sometimes I'm sloppy. Other times I can drink my own Kool-Aid—the homebrew flavor can be quite intoxicating. But I always try, to my best efforts, to carefully think through an argument before I advocate for it.
