Legal Commentary

Dan Solove has a great post ripping the punditocracy for their lacks of principles (or what Matt calls their hypocrisy) in spouting the talking points and arguments of "their" side, even if the person affirmatively does not believe what she is saying or said exactly the opposite a week ago when talking about the other side. Dan ends with the following:

[S]top giving these pundits all the airtime. Yank them off the air. Don't print their drivel in the papers. Let's just assume that the pundits for each side are just going to spout off whatever they find expedient. Do we really need to hear more of it? Let's just say that they cancel each other out, and then start with a fresh slate. So please give the airtime and op-ed space to people who are willing to express opinions with integrity, who actually care about developing principled positions rather than merely churning out debate club stock arguments.

There is a lot here. At a visceral level I agree with Dan and wish they all would shut up. But I am not sure that is possible.

Dan's complaint says something about the adversary system, although I have not quite figured out what it is. The adversary system is based on the idea of the competing views colliding and "canceling each other out" and letting the audience (the jury or the voting public) decide which of the diametrically opposed views to believe. So one point may be that an unbridled adversary system cannot work without some ethical or professional code controlling just how far afield one can go in making arguments.

On the other hand, lawyers in an adversary system are not required to make consistent arguments from case to case or to develop "principled positions" on the law; the arguments one lawyer makes and the legal positions she advocates often change "depending on who's paying me." For civ pro profs, think of Asahi and the commerce/commerce-plus line. Or the lawyer who, when representing West Virginia University in Case # 1 argued WVU was an arm of the state for diversity purposes, then when opposing WVU in Case # 2 argued it was not an arm of the state for diversity. Lawyers are not required to believe everything they say on behalf of their clients nor are they required to make arguments that will produce the "best" or "most principled" law--only the best law to benefit their clients in this case. The limitation (underenforced in any event) is only that all arguments be well-grounded in fact and law. Are the pundits doing anything different? Either of Karl Rove's arguments (picking an inexperienced governor/former mayor is a purely political choice that reflects disinterest in governor v. picking an outside governor/former mayor is smart politics to appeal to a new audience) make sense and both are legitimate arguments. The problem with Rove's move is not the inconsistency/hypocrisy, but the substantive point that Sarah Palin, based on experience, is more ready for the national stage than Tim Kaine. But that is, if you will, a factual argument.

So what about Dan's suggestion that the networks just get rid of the pundits, figuring they cancel each other out? At one level I wold agree, since most of them are not really worth listening to anyway. They are mostly out-of-work political operatives for one side or the other who bring "expertise" because of that experience, but do not (and probably cannot) separate themselves from their political loyalties. In that sense, the pundits (and political operatives) may be more consistent than lawyers--few if any work across party lines for different candidates.

The problem is that the pundit class (at least on television) is a product of the 24-hour news cycle. The cable networks simply have too much air time to fill and no other way to fill it. "Analysis" is necessary, if only to fill air time, although I also think it relates to an unwillingness among journalists to let events speak for themselves. And, under journalism's informal guidelines since the rise of the popular press in the 1840s, so is balance.The solution they came up with is competing analysts--adversarialism. I am not sure how else to resolve that problem.

Dan's solution is for the networks to go find "people who are willing to express opinions with integrity, who actually care about developing principled positions." That, of course, is us--academics who, it is assumed by the nature of what we do, want to see the "best ideas" put forward and accepted, regardless of which political candidate benefits from the argument. I am not sure that is true of what academics do--many "academic" pundits, on both sides, are among the least consistent and most partisan. In any event, I am not going to wait for CNN to call.