Today’s NY Times (11/15/11, page A19) has a piece about law profs who sign on to amicus briefs filed in the U.S. Supreme Court. It mentions a Harvard professor who usually refuses to sign where he hasn’t had the time to thoroughly check whether the brief is analytically and historically accurate. An academic, he says, has a responsibility beyond that of an advocate.
I sympathize. Mixing law professing with litigation can get kind of messy if you take both seriously.
A while ago, I won a couple of big cases establishing the implied warranty of habitability in California. See Hinson v. Delis (l972) 26 Cal.App.3d 62 and Green v. Superior Court (1974) 10 Cal.3d 616. Then, donning my law prof’s hat, I wrote a law review article about the topic. See The Implied Warranty of Habitability: A New Doctrine Raising New Issues, 62California Law Review 1444 (1974). After it came out, a judge wrote to the law review, saying that they should not have published it – because you can’t trust the guy who argued the case to write an objective, scholarly tome about it.
I bristled, of course, but on reflection I think he might have been right. A professor should be very objective – consider all the facts, all the social considerations, and come to conclusions that follow from those facts and considerations. Let the chips fall where they may. That is not what an advocate does. An advocate has a predetermined outcome – win for the client – and then backtracks to find facts and arguments that supports that conclusion. It’s a totally different way of thinking.
Many law profs think they are somehow exempt from this dilemma, and merrily write law review articles on issues that they litigate for one side only. I disagree, and I’ve stopped doing it. I write a lot, but no more law review articles on issues I litigate.
The conflict can run the other way too. I once wrote a piece – very objective – criticizing a sitting appellate justice. He let me know that he hasn’t forgotten it, so as an appellate lawyer, I avoid handling cases assigned to his court.