The Legal Academy and the Temptations of Power: The Difficulty of Dissent
Files
Description
Academic institutions, in theory, should be among the most robust sites in which dissent against conventional or widely shared views of policy and law ought to find easy expression. Indeed, that has long been part of the justification for the general principle of institutional academic freedom that protects these institutions from certain types of political interference, as well as the justification for specific organizational features of the academy, such as tenure. On the surface, the costs of such dissent should be relatively minimal compared to those of dissent in other sites: few institutional structures exist within which potential dissenters are as structurally protected in their ability to form and express dissident views. Academics are not vulnerable, for example, to economic retaliation for the expression of their views. The benefits of dissent should also be large: academics have better access to platforms for recognition of their dissent than do many other potential dissenters. And when it comes to issues of politics—defined broadly and loosely as the substance of law and policy, or the design of governance, legal, and policy-making institutions—the legal academy ought to be a principal source of criticism, challenge, and reexamination of dominant or widely held orthodox views. Yet the legal academy is more compromised, and increasingly so, in its ability to play this role than I believe those in the academy or outside recognize. The reason has to do with the paradox of the relationship of legal academics to actual political power. Many legal academics directly study the substance of public policy or law, or the institutional contexts in which policy is made and implemented, such as agencies, courts, legislatures, or the executive branch. Thus, many legal academics develop precisely the expertise most relevant for challenging the processes, structures, and substance of law and policy. Yet unlike academics in most other disciplines (with the exception, perhaps, of economics), and certainly unlike most humanities academics, legal academics can, if they wish, have the opportunity, and often the reality, of effective influence over policy and law. They can do so directly by being appointed to office, including judgeships and executive branch positions. Indeed, when the Obama administration came to power, seven or so professors at Harvard Law School alone went into government. But even those who do not directly move back and forth between formal roles in government can become direct participants in the systems of government and litigation in ways few academics in other positions can. They might testify before Congress regularly as experts in a field. They might be involved in partisan political campaigns, where their expertise on policy can be much desired. They might sign amicus briefs to courts or otherwise be involved in the litigation process. Some legal academics, for example, are experts on class-action litigation and regularly provide strategic advice or participate as experts in these high-stakes, high-money contests. Others perform similar roles in areas like labor-management conflicts. Those who do so inevitably work always on one side or the other of these kinds of conflicts, given the importance the main players in these areas put on being on one side or the other of these conflicts. These various forms of practical engagement surely have enormous benefits, both in the classroom and in scholarship. But they also come with significant risks, including risk to the ability to play one of the most important roles that justifies academic institutions, the role of being able to stand apart from existing constellations of power or interest or conventional wisdom on issues of moment. In this chapter, I first identify the various ways in which the paradoxical position of the legal academic and the temptations of access to political and legal power threaten the ability of the legal academy to be a source of dissent, and then I explore how legal academics ought to think about the benefits and risks of the unique position of academics closely connected to the institutions and actors who wield actual political and legal power. This chapter is not intended to be a moralistic exercise, nor an exercise in criticism. I have participated in many of the forms of practical engagement I discuss. Instead, the chapter is meant to prompt self-reflection about how we ought to think about the appropriate role of legal academics and self-consciousness about the trade-offs and risks involved in practical engagement for a discipline so closely connected to political power and the centers of commerce in American society.
Source Publication
Dissenting Voices in American Society: The Role of Judges, Lawyers, and Citizens
Source Editors/Authors
Austin Sarat
Publication Date
2012
Recommended Citation
Pildes, Richard H., "The Legal Academy and the Temptations of Power: The Difficulty of Dissent" (2012). Faculty Chapters. 1953.
https://gretchen.law.nyu.edu/fac-chapt/1953
