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Monday, April 02, 2012
Is Strategic Blogging by Legal Academics Exculpatory?
Dave Hoffman has an interesting post at CoOp (I'm having some linking issues, so you'll have to surf on over yourselves) titled "Motivated Cognition and the Mandate," about the nature of legal blog posts about the ACA argument last week. It also occasioned some quite fair disagreement on underlying facts. Setting those aside, I want to focus on one part of the addendum to Dave's post. He writes, in response to the argument by Ilya Somin that some liberal legal bloggers last week erred in claiming that the case was an easy one for the government: "There are, of course, many, many examples of liberal commentators predicting this was a slam dunk case on the merits. . . . But there are at least two exculpatory possibilities that Ilya might want to address: (1) like Barnett pre-Raich, such commentators were trying to shape the narrative by displaying more confidence than they felt. . . ."
To be clear, I assume Dave means exculpatory of the specific charge, not generally exculpatory. And it should be added that he is hardly the only person to suggest that a number of bloggers last week were "trying to shape the narrative." My sense, though, which may be wrong, is that a number of people who made this observation did have the general view that such conduct was generally exculpatory of the most critical claims made against these writers, or at least not inculpatory. Is that right? Should strategery be a defense to somewhat extravagant blogging by legal scholars on a contested issue?
This reminds me of the debate over scholars and amicus briefs that occurred a while back in response to a recent paper by Richard Fallon. Quite a few people took a more forgiving view of these matters than Fallon did, although I side with Fallon on this. One might well think that if the standards for impartiality in scholarship apply differently to amicus briefs, then they sure as hell are lighter or inapplicable for blog posts. I'm not quite sure this is right. In either case, I think the focus on the medium is incorrect. The relevant question is one of message, not medium. A scholar who writes an amicus brief that is plainly intended as an act of advocacy can be understood to be doing just that, and his or her claims can be evaluated and/or discounted accordingly. One who writes an amicus brief that, for reasons of persuasion, adopts a false air of impartiality or relies heavily on the scholar's (or signatory's) reputation and expertise as a scholar while saying (or omitting) things that a scholar wouldn't say (or omit) in his or her scholarly work is not just engaging in open advocacy; that person is also using his or her reputation as a scholar to work covertly and for non-scholarly ends. I continue to insist that there is something wrong with this.
I think something like the same conclusion ought to apply to blogging. Of course everyone already discounts for the medium. But there is still something wrong about yoking one's reputation as a scholar and expert to the non-scholarly end of "shaping the narrative." I'm not accusing anyone of doing this last week, although frankly it seems pretty evident to me that it happened and has happened before. And, clearly, not everyone believes there is something wrong with doing so. But I think there are good reasons to be disturbed by such conduct.
Does that mean no scholar is permitted to try to "shape the narrative" through blogging and other commentary, or that there's something wrong with having a normative legal or political view about such cases and sharing them? Of course not. But it does say something about how one ought to do so consistently with one's obligations as a scholar. The basic principle, it seems to me, is that your message, and the purpose of your message, should be clear. Someone who writes that current law clearly means X should mean what he or she says; "shaping the narrative" is no defense to asserting with confidence a view that one doesn't really believe, or doesn't believe with that degree of confidence. But one can always make clear, implicitly or explicitly, "This is my view of what the law should be, not what it clearly is under current law," that one is urging a particular result rather than offering an impartial analysis of the issues, and so on.
I can think of a number of posts about the ACA from legal scholars last week that were clearly and openly offered as advocacy and did a fine job of it. And I can think of others that were clearly not offered as advocacy at all, and said useful and interesting things about the oral arguments. (I would put Mark Tushnet's posts in this category.) But I do believe that some posts last week traded on the authority of their authors, made overconfident or disingenuous claims about the state of current law and the strength or weakness of opposing arguments, and did so for strategic reasons. I see those reasons as more inculpatory than exculpatory. I don't see the minimal requirements for scholarly integrity that I offered as changing because of the medium, or because of the importance and currency of the case.
Again, that doesn't mean legal scholars can't act as advocates. But if they can't do so openly--if they think it would somehow undermine the effectiveness of what they're writing if they preface their claim with, "Of course I'm writing this as an advocate and not a scholar; if I were writing this with my expertise or authority as a scholar one the line, I would say something different"--then I would suggest that they are, in fact, doing something wrong.
Posted by Paul Horwitz on April 2, 2012 at 11:21 AM in Paul Horwitz | Permalink
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