I do not find it all disturbing that academics engage in advocacy and do not
present their positions in an objective, neutral way — or in a way that some
others might think objectivity and neutrality require. Nor do I object to
their being advocates, tailoring arguments to the particular audience, making
ones that are less controversial but might be more effective. Nor do I think
that any of us needs to or even should disclose to this list our various
advocacy activities.
I think our obligation in scholarship is somewhat, but not entirely, different.
If we are describing the law as it is, we should strive to be as clear and
fair and objective as possible and clearly disclose where we depart from that
standard. But much scholarship is not about the law as it is, but rather is
about the law as it could be and to some should be. For that all that we
should do is be clear that we are advocating for what should be and not
describing what is.
We also should be fair in our use of precedents and try to be fair in our use
(or more often “abuse”) of history. But that is harder due to complexity and
conflicting readings and sources.
Even in scholarship we can be advocates, but as professors and scholars we a
have an obligation to be clear about when we are doing what.
--
Prof. Steven D. Jamar vox: 202-806-8017
Director of International Programs, Institute for Intellectual Property and
Social Justice http://iipsj.org
Howard University School of Law fax: 202-806-8567
http://iipsj.com/SDJ/
Example is always more efficacious than precept.
Samuel Johnson, 1759
On Mar 12, 2014, at 2:40 AM, jim green ugala...@gmail.com wrote:
I find it very disturbing that Laycock, et. al. basically acted as cheer
leaders for a bill they knew was controversial, to say the least, among their
fellow scholars. The analysis proffered to the legislature did not mention
the potential non-discrimination hazards at all - that issue was completely
ignored - in fact, there were no downsides mentioned at all. In this
political climate, this sort of intervention seems naive at best - cynics
might suspect more base motives. (See
http://www.peachpundit.com/wp-content/uploads/2014/02/RFRA-Letter.pdf).
As for the constant appeals hearkening back to the unity of the post-Smith
right-left coalition that rushed through RFRA, if anything, history has shown
that maybe more dissent and reflection during that time would have revealed
that these tensions were there all along. In the rush to paint Smith as some
sort of historical aberration, there seems to be a tendency to canonize the
scholarly response as symbolized by RFRA.Seems a bit Whiggish to me...
---Jimmy Green
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