Institutional Pluralism and the (Hoped-For) Effects of Candor and Integrity in Legal Scholarship

Abstract

This Article is a contribution to a symposium on the ethics of legal scholarship, held at Marquette Law School in September 2017. It has two goals: 1) to consider whether it is possible to contribute to debates on the ethics of legal scholarship while favoring an institutional pluralism in which different forms of legal scholarship are possible and legitimate; and 2) if one concludes (as I do) that it is possible to for an institutional pluralist to hold and advocate views on the ethics of legal scholarship, to explore the implications of the core values of ethical legal scholarship that I focus on here — candor and integrity — for different models or visions of legal scholarship.

On the first question, the Article describes institutional pluralism. It rests on two propositions: 1) Various essential institutions in public life and discourse, such as universities or the press, perform distinctive functions and follow different norms. Those norms show some stability and continuity but are subject to change over time, as a result of both internal debate and external influences. These institutions should be judged primarily on their own terms, and should not be required to follow the “logic of congruence.” 2) There is room for a plurality of approaches and models within those institutions. Not all newspapers, for instance, must follow the model of disinterested reporting; not all universities must privilege the disinterested truth-seeking model over a model that favors thicker substantive goals such as justice or equality. There may be outer limits to these variations, but within them there is room for different models of and approaches to scholarship — including legal scholarship. An institutional pluralist within the academy is certainly free to argue in favor of a particular model of scholarship and scholarly ethics, but should do so with a certain spirit of modesty and charity and not insist that competing visions or approaches be expelled from the “academic” sphere.

The two core values I single out as essential to ethical legal scholarship are candor and integrity. The Article asks how those values would apply to, and improve, different models of legal scholarship. They include the normative model that remains the most common form of legal scholarship; legal scholarship that sees its primary goal as “speaking truth to power”; and advocacy or “engaged” scholarship, particularly when it involves not just traditional scholarship but the pursuit of advocacy across a variety of formats and platforms, such as social media, op-eds, and amicus briefs or scholars’ letters. In each case, I do not reject these forms of scholarship or advocacy, but insist that their authors should be clear and transparent about their goals, arguments, animating premises, and argumentative or persuasive tactics. Doing so may sometimes reduce the persuasive power of such arguments, but it will allow readers to better understand the aim of the scholarship or public advocacy and its potential limits or omissions, and judge its arguments accordingly. Some scholar-advocates may consider these rules too confining. They might consider engaging in such advocacy in a purely civic capacity, without invoking their academic positions and ostensible academic expertise or authority. In extreme cases, they may decide that they ought to leave the academy and engage in full-time advocacy.

Keywords: ethics of legal scholarship, legal scholarship, institutional pluralism, universities, scholarship, legal academy, social media, twitter, scholars' briefs, amicus briefs, scholars' letters, critical thinking, speak truth to power, engaged scholarship, advocacy scholarship, credentialism, normativity