Academic

Saving the Constitution from Lawyers: Part I

By Bob Spitzer

Despite the apparent gauntlet toss reflected in this title, I revere the law and deeply respect lawyers and the legal profession. Even though I?m a political scientist, I?ve spent many years studying the Constitution and aspects of American law, and I?ve read many, many hundreds of law journal articles. I?m no charter member of any lawyer-bashing club.

            But I do have a beef, and it?s a big one: when lawyers enter the realm of constitutional theorizing, they are prone to produce wayward ? I?d say even ?wacky,? if the stakes weren?t so high ? constitutional theorizing. These false theories are uniquely prolific in the legal profession for two reasons:  the nature of legal training, and the law?s professional publishing venue, law reviews. In this first of three installments, I?ll talk about legal training. In the second, I?ll discuss the pernicious consequences of student-run law reviews. In the third, I?ll briefly discuss two examples:  the current Bush administration?s false, pernicious, and dangerous unitary theory of executive authority as applied to its view of the commander-in-chief power; and a new theory purporting to explain the meaning of the Second Amendment?s ?right to bear arms? that has led to the case now before the Supreme Court, U.S. v. Heller. My posts summarize the arguments I make, in much expanded form, in my recently published book, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning (Cambridge University Press): http://www.cambridge.org/us/catalogue/catalogue.asp?isbn=9780521721721

            I come down on the side of those who believe that America?s adversarial legal system is 1) well suited to American law and tradition, and 2) an effective means to produce a just outcome in a legal setting. But while the adversary system, client loyalty, lawyer-client privilege, and zealous advocacy are well suited to the courtroom, they are poorly suited to academic and scholarly inquiry. The lawyer?s foremost obligation is to the client, not the truth. Truth-telling is not the primary goal. That doesn?t mean it?s OK to lie, but lawyers may, for example, encourage a fact-finder to reach a wrong conclusion to effectively defend the client. And the lawyer?s emphasis is persuasion on behalf of the client, not a neutral presentation of facts. A century ago, Roscoe Pound likened a strenuous legal defense to a sporting event where the primary goal is to win the contest. That analogy to the legal profession is, if anything, even more apt today.

            In the scholarly world, the client isn?t an accused criminal, but an idea or an argument. Yet legal academic writing is rife with Perry-Mason-like defenses of ideas that stretch arguments, disfigure or ignore facts, cherry-pick evidence, use overheated inflammatory rhetoric found in no other academic discipline ? in short, all of the lawyer?s tricks. Fine in the courtroom, but deceptive, even dangerous, in the academic world. For example, lawyers are under no obligation to introduce evidence that undercuts their case ? yet academics have an obligation to not only introduce contrary evidence, but to treat it with equal, even greater respect and care than their own cherished ideas. This is, in fact, a bedrock principle of all academic inquiry, including not only the natural sciences, but the social sciences and even the humanities. Historians have railed against legal writers? treatment of history at least since the 1960s; they call it, derisively, ?law office history.? Legal writers have responded to defend what they have labeled, ?advocacy scholarship.? But the problem is that this phrase is an oxymoron. If it?s advocacy, in the legal sense, it can?t be scholarship.

            Why does this matter? Because it results in entire bodies of constitutional theorizing that are astonishingly, jaw-droppingly, patently false; because these theories are given credence precisely because the legal profession is granted great deference when it comes to matters of constitutional interpretation; and because these theories sometimes make their way into government policymaking.

NEXT:  the law journal breeding ground.

Full post as published by The Faculty Lounge on April 16, 2008 (boomark / email).