Abstract

This country's law schools taken together comprise a significant legal institution in their own right, one distinguished from all others by the extent of the intellectual capital it can create and by the weakness of its power to effect legal change directly. The transmission of such capital from the academy to tribunals making decisions thus ought to be a significant concern for anyone generally interested in the legal system and problems of coordination between its constituent bodies. But while law professors often sign their names to amicus briefs, letters, and petitions addressed to courts and other decision-makers considering questions of public interest, there are no common understandings of what a professor's signature on such a document means. Likewise, there are no shared definitions of expertise to which anyone might appeal in deciding when it is appropriate for an academic to render or join a professional opinion. In effect those questions all are left to the individuals who sign the documents to sort out for themselves however they see fit. This Article argues that the result is a collective action problem that threatens to undercut the valuable contributions to public debate that legal academics legitimately can make. It probably is not desirable or feasible for the profession to make rules about any of these matters, but it may be possible at least to arrive at some conventions that, if followed, would benefit both the legal academy and the institutions that law professors sometimes attempt to advise.

This Article will use as its principal case study the most prominent and controversial recent instance of such an academic contribution: the letter to Congress that several hundred law professors signed arguing that President Clinton should not be impeached. The letter may be part of a trend toward greater use of documents submitted to tribunals with large numbers of signatures from legal academics; there have been a number of significant recent examples. Even if one disputes the existence of such a trend, this is a timely moment to consider the issue because e-mail and similar technologies are rapidly driving down the cost of circulating such documents widely and soliciting signatures on them from thousands of professors. While the impeachment letter no doubt may come to be seen as an extreme case because of the very large number of signatures it attracted, the recent exchange between Professors Neal Devins and Cass Sunstein suggests its usefulness as a case study on the role of law professors in public debate in general and the impeachment controversy in particular. The debate was noteworthy for the absence of standards to which either side could point in arguing about whether the academics who signed the letter had sufficient expertise. Sunstein supposes that the signers of the letters opposing impeachment "probably believed that they knew enough-from training and from substantive conversations with colleagues-to have a reasonably informed opinion;" they "likely thought, in good faith, that they knew enough about the constitutional provision to conclude that an impeachable offense had not been made out. It is hard to see why there is anything untoward here." Devins replies that a good faith standard of that sort would allow academics to hold themselves out as experts on all sorts of issues that they have not studied. But having said what expertise is not, Devins does not quite say what it is; he just says that academics only should sign letters that they would be ready to defend in public. Yet with this Sunstein fully agrees. Devins adds that "academics should embrace both ideological diversity and dialectic reasoning (where each thesis is challenged by a counter-thesis)," and that they should have a "commanding knowledge of the relevant sources" bearing on the positions they take. This sounds right, but is likely to be too vague a standard to have much practical use.

This Article suggests that the impasse Devins reached with Sunstein arose from the absence of norms about expertise to which anyone can appeal in these sorts of debates. Its purpose is to initiate discussion of-and to propose-conventions for law professors who render professional opinions in the course of public debate. Specifically, this Article argues that when academics offer opinions in their professional capacities, they should use the same care and have the same expertise called for in their published professional work, or should disclose that they are adhering to a lesser standard. Equivalently, they should not sign documents unless they would be ready to defend them orally in the tribunals to which the documents are being presented.

Part I of this Article sketches the nature of the collective action problem created by academics who sign documents indistinguishably on the basis of different levels of expertise. Part II demonstrates that some contributions of academic opinion to a tribunal are more valuable than others, even if the academics making the contributions are equally confident that what they are saying is correct; there are important differences in value between contributions made by generalists and specialists, and contributions made on the basis of "hard" expertise (involving factual representations) and "soft" expertise (involving normative judgments). Part III applies these distinctions to the law professors' letter to Congress opposing the impeachment of President Clinton. Part IV discusses the proposed convention for legal academics to follow in deciding whether to sign an opinion addressed to a court or legislature, and adds a few notes on the problem of partisanship.

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Ward Farnsworth Contact Information

wf@bu.edu
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
USA
(617) 353-4008

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Presentation and Publication Information:

This article will be published in 81 B.U.L.Rev. 13 (2001).

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