Scholars and Public Debates: A Reply to Devins and Farnsworth

Abstract

In the wake of President Clinton's impeachment, a curious controversy has broken out over the proper role of legal scholars in public debates. Neal Devins, Ward Farnsworth and others have argued that letters submitted by law professors to Congress opposing Clinton's impeachment were ill-advised efforts to trade on the impression of scholarly expertise in an area in which most of them had none. In this short article, I reply to the criticisms advanced by Devins and Farnsworth. My basic line of response is that they make a fundamental error in their analysis of what these letters are about. The Clinton impeachment letter did not base its claim to attention on an aggressive presumption of expertise, but by clearly exhibiting the ability of constitutional scholars to create and evaluate constitutional arguments. In Part I, I describe the circumstances that led to the writing of the Clinton impeachment letter and defend it on the basis of a standard of expertise that rests on the ability of scholars to create and evaluate constitutional arguments. I also diagnose the error made by Devins and Farnsworth - they assume they can criticize the expertise on which the letter was based without dealing with the letter's arguments. In Part II, I take up the theories of expertise advanced by Devins and Farnsworth in detail to show how their critiques went wrong. With respect to Devins, I emphasize that he ignores how legal scholars search for the truth through a clash of arguments. Devins's article is also marred by insinuations about the political motivations of those who signed the Clinton letter that are beyond the kind of fair comment that should appear in legal journals. Farnsworth offers a more careful argument, but he is no more successful than Devins in undermining the letter. Specifically, Farnsworth does not understand how public debates work. He offers a convention to govern the signing of such letters that is not necessary given the scrutiny such messages inevitably receive. I deepen my response to Farnsworth in Part III by setting out the circumstances that surrounded the creation of a statement (which I authored) to the Florida legislature, opposing their effort to designate presidential electors in the aftermath of the 2000 Election.