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What are the limits of scholarly advocacy?

LIRNEasia’s signature has been a focus, you could even say a single-minded fixation, on taking the results of its research to the policy process. There is a line between evidence-based advocacy and just plain advocacy that we have tried not to cross. The NYT article below, explores that line in the context of Amicus briefs by law professors in the United States.

It is important to think about the line, to worry about it, and to try to stay on the right side. Of course, the safest course is that of eschewing advocacy altogether. That can take two forms. First, just keep writing scholarly articles and books and stay out of the hurly-burly of the policy process altogether. Second, when addressing policy audiences in writing or orally, add every possible qualification that can be found, to ensure scholarly rectitude. You do that a couple of times and the invitation to intervene will dry up.

But from the time I was an untenured assistant professor in the US system (or even before that, while a graduate student in Canada) I believed that my role as a scholar obligated me to effectively intervene in the policy process. That meant not only taking the time to intervene, but to intervene in a form that would be effective, i.e., that had a point of view, that had an emotional component. I am sure Professor Fallon would not approve of some of my interventions.

Would he approve of LIRNEasia’s, such as our most recent rapid response on India’s draft National Telecom Policy? But at least, he can be sure that we do ask the questions about whether we are crossing the line.

The health care brief was just an example of a larger problem, Professor Fallon wrote, one of role confusion between scholarship and advocacy. “Many scholars’ briefs are actually not very scholarly,” he wrote.

In major cases, the Supreme Court receives stacks of friend-of-the-court filings, called amicus briefs. It helps for them to have an angle: The justices may be more likely to read a brief from a group of scholars with specialized expertise than one from, say, a trade group. That, along with an understandable desire by some law professors to help shape the law, may explain the explosion in the filing of such briefs.

In the term that ended in June, the Supreme Court decided about 80 cases after briefing and argument. By Professor Fallon’s count, it received 56 briefs from groups of law professors.

In the term that ended in 1986, by contrast, the court decided twice as many cases, but it received only three such briefs.

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