This article belongs to the debate » #Scholactivism
23 August 2022

Integrity and Independence

Scholarly Responsibilities and Public Writing

Professor Khaitan has written a powerful analysis and defense of the role of scholars in pursuing knowledge; he raises many more important issues than I have space to address here. I write in full agreement with several of the attitudes towards scholarly work that Khaitan emphasizes, especially the need for independence of judgment and an openness to revision, but find his “scholactivism” category too broadly conceptualized. Universities and their scholars must focus primarily on knowledge – its production, preservation, and dissemination – but good scholarship can be directed to material change in the world as well as to changes in understanding.

Khaitan defines “scholactivism” as research “distinguished by the existence of a motivation to directly pursue specific material outcomes (i.e. outcomes that are more than merely discursive) through one’s scholarship”. But what his examples illustrate (and very effectively) is that a motivation to pursue specific outcomes may yield bad scholarship – not that they necessarily do nor that specific material outcomes as a motive are inconsistent with good scholarly work.

Material Purposes and Good Scholarship

Khaitan argues, and I agree, that dishonest scholarship — in which the truth of the state of the law is suppressed, or evidence inconsistent with the thesis ignored, or the writer’s true views about the nature of a proposed position or reform are concealed — is wholly inconsistent with the scholar’s role as a knowledge producer. But as to the “moderate” version of “scholactivism” that Khaitan also critiques as “still wrong”: Is it really generally inconsistent with good scholarship to have a “specific material outcome” in mind? Or is it that under the circumstances developed in the hypothetical – a time-sensitive request to make an argument in the form of a scholarly article, for a specific purpose, under time pressure, and without peer vetting — that create the concern? I want to suggest it is the latter, and not the former.

Many classical works of legal scholarship appear to have material purposes in mind.1) In recent years a number of excellent scholarly works have been written that appear driven by very specific material goals, of resisting governments sliding into authoritarianism. Perhaps Professor Khaitan would say that such works as Wojciech Sadurski’s Constitutional Breakdown were chosen with that subject in mind — which he views as permissible — but not written towards that end, or perhaps that in those unusual circumstances what Khaitan calls “common morality” supersedes the scholar’s “role morality”. But what I think Khaitan really means is that scholarly works must be written with the kind of care, thought, engagement with existing scholarly literature, consideration or awareness of competing views, and independent judgment that good legal scholarship manifests. I read Khaitan’s essay overall as a warning reminder to scholars engaged in research connected with their concerns for justice of the dangers of shortcuts and the temptations to such shortcuts that having specific goals in mind may present.

What Khaitan describes in Part 3, with the scholar Mridula, is, I would argue, not scholarly activism but insufficiently scholarly activism. The problem is not with a scholar “having a motivation to directly pursue specific material outcomes” through their scholarship. The problem is doing so without adhering to basic norms of good scholarship in deciding what (if any) specific material outcomes to pursue, as well as in advancing arguments in support of that position. Good legal scholarship is often quite normative in character. By that I mean that the scholar has an idea for how to improve the law, or for why the law should not be respected, or some other normative position that they want to reflect on and develop. Good scholars bring the habits and culture of scholarship to identifying what they believe to be good (or bad) normative outcomes. Good normative scholarship should reflect thought and time, and not simply first reactions –even of those expert in a field. Good scholarship should show a candid and fair acknowledgment of what the current state of the law is, on the issue being written on. It should be thoughtful reflection on the implications of the principle being argued for in other settings and, if there are limits on the principle, some gesture towards defining what those limits are. Good scholarship should consider opposing views, explaining why they are not well-founded or — at least—having them in mind in crafting affirmative arguments.

Three Points of Concern 

The more important point of Khaitan’s essay, I think, has to do with the integrity of scholarship. Scholarship in law can be justice-oriented without losing its quality as scholarship, in part perhaps due to the mixed character of constitutional law as both positive and normative.2) Khaitan clearly is not arguing that as a matter of role morality scholars should not seek to do justice using their professional skills; his concern rather is that the knowledge advancing function of scholarship is threatened by too instrumentalized a motive in creating scholarship. The point that emerges most powerfully from his essay, in my view, is that in the identification of a material goal the scholarly mindset should be in place – not that it is wrong to write with such a goal in mind.

Khaitan has offered a normatively attractive description of what makes scholarship a distinctively trustworthy source of knowledge.3) First, the scholar takes time, seeks critique, revises, before publication; the scholactivist, as Khaitan describes, works in a “shorter time and space horizon[]”. Second, a good scholar, Khaitan says – in a wonderful turn of phrase – should have an “attitude of revisability”; scholactivism, he suggests, “demands an attitude of certainty”. Finally, he suggests, it is important for universities (and those who can provide rewards and incentives) to reward and incentivize truth-seeking and knowledge creation, rather than celebrating those who realize material changes. He illustrates the importance of these processes over time through a hypothetical example of a scholar asked to write a paper taking a position on a constitutional issue, and then illustrating how and why the scholar might not have taken the position or would have taken a more narrowly crafted view had time permitted her to consider other applications of the position to plausible but different scenarios that critical readers of the work would likely have raised.4)

On Khaitan’s three points of concern — I agree with him that good scholarship takes time, and revision; and I agree with him that good scholars should have an attitude of revisability. As to the incentive structure, I agree with Khaitan that the “celebritization” of some academics poses risks to those scholars who labor in fields of less immediate public interest. But these risks are presented not only by scholars who seek material change in the world but those who take very strong and controversial positions on a range of issues (including such ‘discursive’ issues as Shakespeare’s identity). And for universities that maintain professional schools – of law, or medicine, or engineering – I am not sure it is inappropriate for universities to value the production of knowledge that has practical impacts on improving professional practices and goals.

Thought, Expertise, and Critique

Given my agreement with Khaitan’s two points about the role of time and thought, and revisability, in producing good scholarly work, there is perhaps some irony in being asked soon after Khaitan’s piece came out, on August 8 2022, to submit short responses by August 21, 2022 — a highly short-circuited time frame. But let me invoke my own internal “procedures” for when I speak as a scholar to explain why I am submitting this comment.

My first, and most important, “procedural“ rule for myself in public writing is that I try not to comment on issues of law or constitutionalism or legal education unless I have on my own thought deeply about, researched, and preferably written on them before. If I am going to be identified as a professor of law, my remarks are being given weight because I am a scholar; but if I have not engaged in a scholarly way with the issue, then my remarks should not bear that additional weight. So, I am happy to talk on background to reporters who are trying to understand an area, and give them the benefit of my thinking; I know reporters will try to talk to a range of people and that they are not likely to give undue weight to my views as a professor. But (as a general rule) I do not go “on the record”, with my name and identification as a credential for what I am saying, unless I have thought deeply as a scholar about the subject matter. I have been thinking, researching, and writing on “knowledge institutions” – considering why they are distinctively important in constitutional democracies, and what principles unite them, since the late 20-teens. As I have written elsewhere, those shared principles include i) independence in the ii) application of disciplinary standards appropriate to the field and iii) an attitude of epistemic humility.5) Professor Khaitan’s arguments about good scholarship — and in particular his emphasis on mental independence, and his wonderful phrase, “attitude of revisability“ — are very much along these lines.

Second, as a general rule, I do not sign on to group amicus briefs, petitions or letters unless i) I believe I have expertise in the area, ii) I have helped draft the document, and iii) I agree with the arguments that are made, individually and as a whole. If I am being held out as supporting a position, I must be a sufficient expert on that issue that readers are not mislead by the fact that I am listed as a scholar. My requirement for personally working on the draft reflects my experience that it is only when I try to write down what I think that I fully realize it – and its problems. And the requirement of agreeing with the arguments, individually and as a whole, reflects my sense of scholarly integrity. These turn out to be very limiting requirements – it is sometimes felt necessary in group drafting to include an idea that one member is deeply attached to but that I think is mistaken; or, for tactical reasons, as Khaitan indicates, to omit to say something that I believe is true and relevant.6)

I have in recent years worked hard on a number of amicus briefs but in the end declined to sign on. I think the requirement of having expertise on the subject is one that should be viewed as a general ethical obligation of scholars. The other two of my own internal procedural rules are designed to implement my sense of scholarly integrity and independence. Here, however, I think there are a range of reasonable viewpoints scholars could take about how much of the group document one must personally subscribe to and endorse in order to meet this requirement.7) For myself, my sense of the professional role in which I would be held out requires a very high degree of agreement.

Third, I generally try to seek feedback and critique from colleagues when I write publicly about law, even if on a foreshortened schedule. On occasion in recent years I have circulated short pieces written with great passion, on issues I had expertise on, and received very helpful feedback that led me to think that I needed to think further. I have files of unpublished short blog pieces that may – someday – turn into longer articles; until I fully think the subject through, I am hesitant to publish and typically do not. I may not be striking the balance in the right place, here; maybe discourse would be better if I withheld less and published more. But for now, this is my practice.8)

The Epistemic Infrastructure of Constitutional Democracy

So, why am I writing this short response? I have given considerable thought and research time in recent years to the distinctive roles, rights and responsibilities of knowledge institutions, and their members, in constitutional democracies. This short response involves no group drafting. And I will have tried to elicit reactions from colleagues before sending this in to Verfassungsblog.

In closing, let me highlight one other point Professor Khaitan makes: the very important distinction between an internally generated sense of professional academic ethics and regulatory prohibitions imposed from outside. One of the other principles I have suggested should inform how we look at knowledge institutions concerns the benefits of a pluralism of views and practices.9) Conventional wisdom that may be wrong may endure too long if a single methodology or viewpoint dominates all departments in the field; new trends in scholarship need critical examination. Having a pluralism of reasonable approaches to the ethical demands of the scholarly role articulated (and engaged with each other) will help illuminate the benefits and pitfalls of each. And as Khaitan acknowledges, urgent circumstances may exist that justify some short-circuiting of ordinary disciplinary expectations, in ways that can best be monitored by the application of scholarly self-awareness.

But I share Khaitan’s concern that the efficacy and legitimacy of universities and their communities of scholars can be undermined by engagements with activism that fail to reflect the culture and discipline of scholarship and the primacy, for universities, of their knowledge creating and disseminating roles, a role vital to the epistemic infrastructure of constitutional democracy.

The author thanks Tarun Khaitan, Adrienne Stone, and Mark Tushnet for helpful comments; any errors are the sole responsibility of the author.


1 Among the most often cited law journal articles in the United States, consider Warren and Brandeis’ 1890 effort to establish recognition in tort law of what they termed The Right to Privacy, 4 Harv. L. Rev. 193 (1890); or Anthony Amsterdam’s Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 1735 (1974), arguing for a particular interpretive approach by courts to Fourth Amendment issues; or Burt Neuborne’s The Myth of Parity, arguing that federal courts were superior to state courts for the adjudication of constitutional rights claims, which, he said, “should be the critical factor in …federal-state forum allocation decisions.” 90 Harv. L. Rev. 1105, 1131 (1977). All of these works of scholarship sought to influence the development of the law.
2 Cf. Vicki C. Jackson, Methodological Challenges in Comparative Constitutional Law, 28 Penn. St. Int’l L. Rev. 319, 324-25 (2010) (noting conflation of normative and positive in constitutional claims).
3 On the need for trustworthiness in scholarly work, see generally Richard H Fallon Jr., Scholars Briefs and the Vocation of a Law Professor, 4 J. Legal Analysis 223 [2012).
4 How much this differentiates scholarship from excellent lawyering I am not sure; if one thinks of “moots” for appellate argument, they are designed to put to the advocate the most difficult challenges to their position. And sometimes the most effective lawyering is one that concedes that an issue is uncertain or that there is some force to the other side, but explains why the advocate’s position is the better one. Lawyers are ethically required to disclose unfavorable precedents in making their cases, and the best advocates take account of arguments hostile to the advocate’s position. A more significant difference between legal advocacy on behalf of a client and legal scholarship is that in the scholar must offer arguments and resolutions she believes are the best (so the dishonest scholar, in Part 2 of Khaitan’s essay, is an example of what not to do); but in advocacy it is not the lawyer’s personal view of the merits that must be proffered but the best arguments on behalf of a particular position. Thus, my role as a court-appointed amicus for the purpose of arguing a specific position required me to develop what I thought were the best arguments for one side of an issue, regardless whether I, as scholar, agreed with that side; my role as a scholarly amicus volunteering views in a case is to set forth what I think are the best responses to an issue.
5 Vicki C. Jackson, Knowledge Institutions in Constitutional Democracy, (2021) Can. J. Comp. & Contemp. L. 156 211-17 (2021). See also Liora Lazarus, Constitutional Scholars as Constitutional Actors, (2020 ) Fed’l. L. Rev. 483; see generally Caroline Evans and Adrienne Stone, Open Minds (2021).
6 An example might be an amicus brief arguing that under existing law a particular cause of action against a state may go forward, while omitting to say something along the lines that “this brief takes no position on the merits of the existing rule of immunity, which some of us believe is mistaken.”
7 Compare Fallon, supra note 3 with Amanda Frost, In Defense of Scholars’ Briefs: A Response to Richard Fallon, 16 Green Bag 2d 135 (2013).
8 I would need to think more about whether Khaitan’s proposed distinction between writing scholarship and speaking publicly as a scholar is sustainable. I agree that in blogs or public lectures there may not be room to include all the qualifications and arguments one would in a scholarly piece; but the substance of the scholar’s remarks should generally, I am inclined to believe, reflect serious knowledge, careful and independent scholarly thought, and intellectual honesty.
9 Jackson, above note 5, at 218 (noting role of decentralization of sources of knowledge).