The interaction between Toobin and Dershowitz on @CNNSotu today was very interesting. Toobin took great pains to point out that Dershowitz was making his constitutional argument about what the Constitution requires as an advocate for Trump, not as an expert.
Dershowitz seemed surprised and annoyed that Toobin made such a big deal about the issue. Dershowitz readily conceded that of course he was acting as an advocate.
But we shouldn’t overlook why Toobin thought it was important to emphasize this point on national TV.
But we shouldn’t overlook why Toobin thought it was important to emphasize this point on national TV.
Dersh is identified as a constitutional scholar & Harvard law professor. Those titles allow him to claim expertise. It gives him an air of neutrality that he wouldn’t have if he were appearing only as a lawyer.
As Toobin implied, people might mistake Dersh as a neutral expert
As Toobin implied, people might mistake Dersh as a neutral expert
For me, this raises bigger issues about the role of law professors in issues of public importance.
I think it is generally a good thing if law profs and other academics are called on to share their expertise on important issues of the day.
We have a lot to contribute.
I think it is generally a good thing if law profs and other academics are called on to share their expertise on important issues of the day.
We have a lot to contribute.
But I worry that many law profs weigh in on those issues without having developed their expertise outside the shadow of a particular public controversy.
When that happens, I worry not only that the prof doesn't have sufficient expertise, but also that the opinion isn't neutral
When that happens, I worry not only that the prof doesn't have sufficient expertise, but also that the opinion isn't neutral
Dershowitz's participation on the President's legal team adds another dimension to this situation--that, whatever his expertise on impeachment, he isn't going to be appearing as an expert. He's appearing *as a lawyer for Trump* not as an expert.
More importantly, I think that Dershowitz's ethical obligations as a lawyer for Trump will conflict with his ethical obligations as a scholar. A scholar would admit uncertainty or concede weakness in her arguments when necessary; lawyers often can't do so.
For more on the ethical obligations of legal scholars, please see this effort that many of us worked on for @MarqLRev
scholarship.law.marquette.edu/cgi/viewconten…
(and many thanks to @oldfatherc and Paul Horwitz for organizing that effort!)
scholarship.law.marquette.edu/cgi/viewconten…
(and many thanks to @oldfatherc and Paul Horwitz for organizing that effort!)
@MarqLRev @oldfatherc I know that there are other law professors who take on clients. (I myself have filed non-amicus briefs on behalf of clients.) And I think that, as a profession, law professors might need to think more about how our ethical obligations as scholars can be squared with that work.
@MarqLRev @oldfatherc And maybe, given the strong feelings associated with impeachment, Dershowitz's representation of Trump in front of the Senate might not be the best vehicle to assess these ethical conflicts.
@MarqLRev @oldfatherc But we need to grapple with these conflicts as a profession.
Not only might the public might be misled when a law professor appears as a lawyer in a situations such as this impeachment; but professors might also lose status as neutral experts if that happens too often. /end
Not only might the public might be misled when a law professor appears as a lawyer in a situations such as this impeachment; but professors might also lose status as neutral experts if that happens too often. /end
Addendum: I’ve collected some of these thoughts & elaborated a bit in this @PrawfsBlawg post:
