LAW LOSES ITS WAY

The field of law underwent its own evolution and maturation during the time that political science developed. Yet law followed a divergent path: as disciplinary political science found and applied its own distinctive core principles and methods, law began with its core values, but eventually lost its way as an intellectual discipline. The legal profession emerged as an academically based discipline (more than just a profession) in the late nineteenth century with intellectual and disciplinary leadership arising from Harvard Law School, where the case method incorporating the use of Socratic dialogue and casebooks instead of standard legal texts emerged.Footnote ³ These and related changes rapidly swept through an ever-increasing number of law schools. Two other dramatic changes occurred at about the same time: the rise of law-school-based, largely student-run law reviews that published the academic writings of law professors, and the transition of legal education from an undergraduate to a graduate curriculum. Concomitant with these changes, law school education supplanted legal apprenticeship as the gateway to the profession. In 1870, about a quarter of those admitted to the bar attended law school, with the rest receiving their legal training by apprenticing themselves to lawyers. By 1910, two-thirds of bar-admitted lawyers had graduated from law schools (Friedman Reference Friedman2002, 33–35). Throughout this period and well into the twentieth century, two key forms of traditional legal analysis predominated in legal writing (and for which the discipline was most well suited): doctrinal analysis and case analysis.Footnote ⁴

This traditional approach to law yielded to major changes in the 1960s and 1970s. One was a vast expansion of what was referred to as “law and …” writing: an increasingly eclectic and intellectually schizophrenic body of writing that came to resemble “a bewildering kaleidoscope of every form and mutation of scholarship” (Friedman Reference Friedman2002, 499) whereby it ever more frantically sought to cobble together insight and analysis from an ever-more dizzying array of disciplines, while marginalizing and diminishing traditional doctrinal and case analysis. Second, and more germane to this analysis, was a vast expansion in writing related to constitutional law, where ever-more writing focused on a relative handful of Supreme Court rulings, neglecting by comparison the thousands of lower federal and state court rulings where law review articles could offer a more welcome and useful contribution to the legal profession. One analysis (Lindgren Reference Lindgren1994) found that constitutional law was the subject most frequently addressed in law reviews, followed by corporate law. Yet this contrasts starkly with the areas of greatest concern to practicing lawyers, whose work normally centers on domestic law, wills, criminal law, and real estate—subjects that receive relatively little attention in law reviews.

STUDENTS CONTROL SCHOLARSHIP

More writing on constitutional law would, in and of itself, hardly seem problematic if the point is to argue that the subject matter continues to be vital to political science. But this ever-burgeoning legal writing did and does occur in a literature that has three unique traits that work against intellectual cross-pollination and a political science return to central legal questions. First, the law journal publishing realm is incomparably vast (more than 600 publications are attached to the roughly 220 law schools in AmericaFootnote ⁵; in all, there are more than 1,100 legal publications), meaning that virtually any sort of writing can eventually find a publication venue. Second, for the vast majority of law journals attached to law schools (and nearly all of the most prominent and prestigious publications (“Writing” 2012), publication decisions are controlled by law students, which means that the work submitted is not, and cannot be, evaluated on its academic merits. Student editors, although hard-working, diligent, and intelligent, do not possess, and cannot be expected to possess, the knowledge to evaluate submitted work on its merits. They can find missing punctuation and erroneous citations, but the correction of these technical errors pales in the light of the fact that they are unqualified to judge whether a submission makes a legitimate argument, reflects proper knowledge of the field, does or does not duplicate existing writing, or even presents arguments and facts fairly, fully, or correctly.

Third, with exceptions, peer review—the gold standard evaluative system of every other academic discipline—is not used. Despite its limitations, peer review possesses two unassailable advantages not found in student-run law reviews: publication decisions are made by professionals with subject matter expertise, which means that the submitted work can be evaluated on its merits; and the review process is normally blind, so that the reviewers (under professional editorial control) can offer full and frank evaluations. While all this is well known to you, the reader, the consequences for law journal writing, and therefore for our understanding of constitutional law, are profound. One other factor further complicates, and endangers, constitutional analysis arising from law journal writing by the legal community: the nature of legal education and training.

THE PERRY MASON SCHOLAR?

The purpose of legal education is to produce lawyers prepared and able to function effectively within the framework of the American legal system. As is well known, the central tenet of American justice is the adversarial system. A practicing lawyer is an advocate, predicated on the belief that the best way to determine an approximation of the truth—or at least a relatively just outcome—is for opposing sides to present their strongest possible arguments to an impartial arbiter. One may well argue that America's adversarial legal system is well suited to American law and tradition, and that it is an effective means to produce a just outcome in a legal setting.

Although the adversary system, client loyalty, lawyer-client privilege, and zealous advocacy are well suited to the courtroom, they are poorly suited to academic and scholarly inquiry. The lawyer's foremost obligation is to the client, not the truth. Truth-telling is not the primary goal. That does not mean it is allowable to lie, but lawyers may, for example, encourage a fact-finder to reach a wrong conclusion to effectively defend the client. And the lawyer's emphasis is persuasion on behalf of the client, not a neutral presentation of facts. A century ago, the noted legal scholar Roscoe Pound (Reference Pound1906) likened a strenuous legal defense to a sporting event where the primary goal is to win the contest. That analogy to the legal profession is, if anything, even more apt today.

In the scholarly world, the client is not an accused criminal, but an idea or an argument. Yet legal academic writing is rife with Perry-MasonFootnote ⁶-like defenses of ideas that stretch arguments, disfigure or ignore facts, cherry-pick evidence, draw in distractions, and use overheated or inflammatory rhetoric found in no other academic discipline. These tactics may be fine in the courtroom where the goal is to persuade, and where the opposing legal counsel is present to rebut, but it is deceptive, even dangerous, in the academic world. For example, lawyers are under no obligation to introduce evidence that undercuts their case—yet academics have an obligation to not only introduce contrary evidence, but to treat it with equal, even greater respect and care than their own cherished ideas. This is, in fact, a bedrock principle of all academic inquiry. As one legal writer noted, “Scholarship … aims at the truth. Advocacy, by contrast, is concerned merely with persuasion” (Kronman Reference Kronman1993, vii).

Historians have railed against legal writers' suspect treatment of history at least since the 1960s, labeling it, derisively, “law office history.” (Kelly Reference Kelly and Kurland1965, 122) Legal writers have responded to defend what they have counter-labeled, “advocacy scholarship.” But the problem is that this phrase is an oxymoron. Advocacy surely has its place in academic writing,Footnote ⁷ but not masquerading as conventional scholarship. Epstein and King (Reference Epstein and King2002, 9) describe the problem this way: “While a PhD is taught to subject his or her favored hypothesis to every conceivable test and data source, seeking out all possible evidence against his or her theory, an attorney is taught to amass all the evidence for his or her hypothesis and distract attention from anything that might be seen as contradictory information.”

Without question, there is much excellent law journal writing, just as there are legal scholars who adhere scrupulously to scholarly standards of research and writing. The difficulty, however, is not that excellent scholarship is not to be found in law journals, but rather that there is no minimum standard for writing that only masquerades as scholarship. Some of this writing has produced entire bodies of constitutional theorizing that are astonishingly, jaw-droppingly, patently false. Even so, this theorizing wins credence precisely because the legal profession is granted great deference when it comes to matters of constitutional interpretation. Such writing influences national legal debate and thinking, as well as judges, legislatures, and executives (including the presidency), and public policy. In other writing, I provide very detailed evidence of these assertions in three examples where defective law journal writing has promulgated wayward constitutional theorizing built on such law journal writing, pertaining to the presidential veto power, the president's commander-in-chief power, and the Second Amendment's right to bear arms (Spitzer Reference Spitzer2008a, Reference Spitzer2008b). Space limitations prohibit an exploration of these three cases here.

LAW REVIEWS AND YOO

In his abundant writing, Fisher (Reference Fisher2006, 1234–44; Reference Fisher2011) has encountered and confronted the phenomenon described here. For example, Fisher has written significantly and insightfully on the related subjects of the Unitary theory of executive power and the impact of University of California law professor John Yoo's writings on presidential power and national security (e.g., Fisher Reference Fisher2000, 1658–68). Yoo is most well known as the author of the so-called torture memos while working in the White House of George W. Bush from 2001 to 2003, as well as other memoranda advancing a highly aggressive view of executive power in foreign affairs that served as the administration's road map to executive power until the memoranda were later modified and withdrawn (Baker Reference Baker2006, 29–30; Fisher Reference Fisher2006, 1242–44). Less well known is the fact that Yoo (Reference Yoo1996) earlier authored a highly influential law journal article that first laid out this very expansive view of presidential power in foreign affairs. This article was not only the wellspring of his subsequent writings both in the Bush administration and in his subsequent return to academic life; it also catapulted Yoo's influence in the Bush administration. By one account, Yoo's “academic background and interests,” (Golden Reference Golden2005) in particular his law journal writing on presidential power and foreign affairs, allowed him to bypass the normal clearance process in the Bush White House to and through which opinions from the Office of Legal Counsel, where he worked, would otherwise normally have been subject (Mayer Reference Mayer2005). Bush Attorney General John Ashcroft was not consulted about these early decisions and “was enraged to discover that Yoo, his subordinate, exercised such influence.”Footnote ⁸ Indeed, Yoo “became the theorist of an insurrection against legal limits on the commander in chief.” (Gellman and Becker Reference Gellman and Becker2007) As Fisher shows, the scholarly dignity accorded to Yoo was unwarranted.

For example, Fisher takes the California Law Review (considered one of the nation's premier law journals) to task because its student editors were unqualified to examine, much less challenge, key assertions in Yoo's Reference Yoo1996 article, such as his categorical (and easily falsifiable) claim that, according to the Constitution's founders, “the courts were to have no role at all” (Fisher Reference Fisher2011, 181) in adjudicating war powers and foreign relations cases, even though the courts did adjudicate several war powers cases as early as from 1800 to 1806, for example (and many thereafter). More generally, Fisher assails Yoo's central contention that the American presidency was modeled after the British monarchy, when, as Fisher and many others have demonstrated, the Constitution's framers emphatically rejected monarchical executive prerogatives as the model for the presidency. Other tenets of Yoo's views of executive power stemming from his law review writing have been similarly found wanting (Spitzer Reference Spitzer, Genovese and Han2006; Reference Spitzer2008b, 103–08). Whether published in the California Law Review or virtually any of the nation's other such publications, the problem is the same: the articles found therein were and are not subjected to the (admittedly imperfect) scholarly rigors attached to the publications found in literally every other academic discipline. Absent such review, the door to constitutional invention and distortion is wide open. And even though Yoo's arguments have been undermined by many specialists in the field, they survive in the world of governance, in part at least because of the imprimatur conferred by the legal academy. As one account noted during the 2012 presidential elections, advisors close to Republican presidential candidate Mitt Romney recommended to him that, if elected president, he repeal Barack Obama's executive orders that repealed Bush-era executive orders that authorized and justified torture—in other words, to reactivate Yoo's theories of hyper-expansive presidential powers (Savage Reference Savage2012).

POLITICAL SCIENCE TO THE RESCUE?

If the last decade of presidential politics has demonstrated anything, it is that public law is not only important, but essential, as a frame for understanding the institution. From the Unitary theory of executive power (Barilleaux and Kelley Reference Barilleaux and Kelley2010; Fisher Reference Fisher2010b), to the expansive use of presidential signing statements (Cooper Reference Cooper2005; Kelley Reference Kelley2007), to presidential “czars” (Sollenberger and Rozell Reference Sollenberger and Rozell2012), to executive orders and other types of direct executive action (Cooper Reference Cooper2002; Howell Reference Howell2003), to executive privilege (Fisher Reference Fisher2004a; Rozell Reference Rozell2010), to the presidential veto (Spitzer Reference Spitzer1988; Reference Spitzer2012), to war powers (Fisher Reference Fisher2004b), recent presidents have doubled down on constitutional and legal bases for their actions. The well-worn Richard Neustadt (Reference Neustadt1990) view of presidential power emphasizing the pivotal role of presidential bargaining and informal powers as central to presidential success, while far from irrelevant, seems naively quaint by comparison with contemporary, muscular public law-based presidential actions. As Fisher (Reference Fisher, Edwards and Howell2009, 813) has written, “More important than how much presidents do something, or why they act as they do, is the source of their authority and limits to it. The president is part of a constitutional system and cannot, or should not, be isolated from it.”

Anticipating these arguments by two decades, Theodore J. Lowi (Reference Lowi1992, 6) was prescient (if more sharp-tongued) in his verdict on what only later became known as the Unitary theory of executive power: “The far right-wing intellectuals are also writing a significant proportion of the new work on the founding intended not only to contribute to historical scholarship but to reconstitute the constitution in such a way as to place the presidency above the law and affirmative action beneath it.” Whether he knew it or not, the writing to which Lowi referred was born and grown in the hot-house of law reviews (Spitzer Reference Spitzer2008b, 92–98).

Political science is by no means absent from important scholarly debate over matters of constitutional law; indeed, a public law renaissance is occurring in our discipline—and certainly in the study of the presidency—just as it is in our polity. But the primary academic player in these debates has been the legal community, and that alone punctuates not only the necessity, but the urgency, that political science resume its key role in this long-neglected field. We would all do well to follow Louis Fisher's example.