Find a Local Lawyer

Close This Box!

 Let's assume that both articles are compellingly argued and persuasive.  Maybe they take similar normative and methodological starting points and just diverge on particularly difficult issues; or maybe they examine the same issue but with different normative or methodological starting points (ie., one proceeds from an efficiency-oriented standpoint and the other doesn't; or one is originalist and the other is not).  But they are both strong pieces.

Why, then, should we care that the author believes that one article is right and the other isn't, or indeed that she may not particularly share either view?  I understand that people may have different emotional reactions to being kicked and being stumbled over.  Physically speaking, however, the result is the same.  Now, in my supposition and Jay's, both articles are compellingly argued and persusasive.  If read without regard to the author's motives, they would both be seen as at least potentially valid.  So why should it matter that the author actually believes only one -- or neither, or both -- arguments?  Why should we care why the author did what she did?

One commenter, as I said, suggests that such an action would be unethical because authorship implies agreement with the arguments contained in the article.  I'm not sure that's right, and I'm not sure how much motive matters provided the article is written with scholarly integrity with respect to the arguments contained therein.  Let's say the author acted as she did out of perversity -- a valuable motivation, in my view; would that there were more of it!  Is it not possible to be a scholar who is both possessed of integrity as a scholar and perverse in motivation?

I suppose I find this especially interesting because the same commenter also suggests that all this is different from the case of a lawyer writing a brief, who is simply making the best possible argument on behalf of her client.**  What I think this fails to capture is the fact that most law-review writing, whether or not it is true "scholarship," is highly argumentative and normative; as many people have observed, countless law review articles resemble nothing so much as briefs written to a court urging a particular result.  Often enough, the convictions moving the author are ideological, not just the "search for truth" that is the scholar's province in the traditional view.  To that end, I would suggest that law review authors (too) frequently make compelling arguments that they do not believe in -- using a methodology (say, originalism) even though they think it is illegitimate, or making efforts to distinguish cases that, in their heart of hearts, they think are indistinguishable, or arguing that a particular position does not carry certain implications when, logically, it does.  They arewriting briefs. 

I am reminded of the efforts of many academic lawyers to turn headstands arguing that their position in favor of the law school plaintiffs in the Solomon Amendment case in no way required reexamining any of the civil rights cases, like Runyon v. McCrary.  (I won't name names here, but one example can be found in a very long footnote in this article.)  In that case, the arguments were, in my view, unpersuasive in part because they were internally inconclusive; the degree to which the arguments were internally flawed, in my view, also called into question whether the authors had acted with full scholarly integrity or whether they were just acting as advocates, and unpersuasive ones at that.  But if a legal academic makes an argument that is not internally flawed, that is in fact persuasive, should we care if she doesn't necessarily believe it?

Many people seem to have less of a problem with the ideologically driven professor than the hypothetical perverse writer that Jay posits.  But I wonder: aren't authors who fall in the former category as dangerous to the cause of scholarship, if not more so, than someone who writes a wholly compelling argument (or, in Jay's example, two arguments) that she doesn't necessarily personally believe in, for no better reason than perversity?