Law professor Paul Horwitz discusses whether advocacy infiltrated legal analysis in the commentary about the individual mandate in the Affordable Care Act, which the Supreme Court determined was an impermissible regulation under the Commerce Clause but a permissible tax under the Taxing Clause.
Orin Kerr at the Volokh Conspiracy calls this “a provocative post criticizing lawprofs who have commented on the health care cases as advocates without saying so — and specifically, lawprofs who have been formally writing as scholars but really writing as advocates with a goal of “shaping the narrative” of opinion on the constitutional challenge to the mandate.”
This is analogous to a pair of problems widely observed (but to date never quantified) in which scientists embed their policy views within ostensibly objective scientific work. Because these policy views are cast as “science,” policy officials with different views may find themselves constrained from exercising the policy making authorities delegated to them by Congress. (Policy officials who share the scientists’ views likely will not complain, and indeed, may find it convenient to hide behind the scientists.)
Horwitz and Kerr focus on the extent to which advocacy infiltrates legal briefs and blog posts, both of which are clearly intended to influence policy making and judicial decision making. Horwitz takes the view that the medium in which advocacy and analysis are conflated is immaterial:
A scholar who writes an amicus brief that is plainly intended as an act of advocacy can be understood to be doing just that, and his or her claims can be evaluated and/or discounted accordingly. One who writes an amicus brief that, for reasons of persuasion, adopts a false air of impartiality or relies heavily on the scholar’s (or signatory’s) reputation and expertise as a scholar while saying (or omitting) things that a scholar wouldn’t say (or omit) in his or her scholarly work is not just engaging in open advocacy; that person is also using his or her reputation as a scholar to work covertly and for non-scholarly ends. I continue to insist that there is something wrong with this.
I think something like the same conclusion ought to apply to blogging. Of course everyone already discounts for the medium. But there is still something wrong about yoking one’s reputation as a scholar and expert to the non-scholarly end of “shaping the narrative.” I’m not accusing anyone of doing this last week, although frankly it seems pretty evident to me that it happened and has happened before. And, clearly, not everyone believes there is something wrong with doing so. But I think there are good reasons to be disturbed by such conduct.
He concludes with a call for transparency in the disclosure of policy views:
The basic principle, it seems to me, is that your message, and the purpose of your message, should be clear. Someone who writes that current law clearly means X should mean what he or she says; “shaping the narrative” is no defense to asserting with confidence a view that one doesn’t really believe, or doesn’t believe with that degree of confidence. But one can always make clear, implicitly or explicitly, “This is my view of what the law should be, not what it clearly is under current law,” that one is urging a particular result rather than offering an impartial analysis of the issues, and so on.
That transparency principle certainly does not apply in regulatory risk assessment, though it is required by OMB information quality guidelines in 2002 and was strongly recommended by a committee of the National Research Council in its 1983 Red Book. Scientists refrain from disclosing the where the science in their analyses end and their policy views begin.