Talking Out Of School: Notes On The Transmission Of Intellectual Capital From The Legal Academy To Public Tribunals

Abstract

This Article proposes some conventions for professors who render opinions in the course of public debate, arguing that when academics offer public opinions in their professional capacities they should use the same care and have the same expertise called for in their published work, or else 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 sketches the nature of the collective action problem created by academics who sign opinion letters and petitions indistinguishably on the basis of different levels of expertise, analogizing this practice to abuse of a trademark (here the law professor mark) that is likely to lead either to consumer confusion or dilution of the mark. 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 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. It also adds a few notes on the problem of partisanship, arguing that academics should not take public positions on questions unless they would be equally ready to make the same arguments publicly when they are helpful to their political enemies - unless, again, they disclose that they are serving as advocates for one side or the other.