Ethics Quote of the Week: Prof. Paul Horwitz

“I can think of a number of posts about the ACA from legal scholars last week that were clearly and openly offered as advocacy and did a fine job of it. And I can think of others that were clearly not offered as advocacy at all, and said useful and interesting things about the oral arguments…But I do believe that some posts last week traded on the authority of their authors, made overconfident or disingenuous claims about the state of current law and the strength or weakness of opposing arguments, and did so for strategic reasons. I see those reasons as more inculpatory than exculpatory. I don’t see the minimal requirements for scholarly integrity that I offered as changing because of the medium, or because of the importance and currency of the case.”

Hey, Professor! We assume you're smarter than we are: don't play games with our trust!

—-University of Alabama Law Professor Paul Horwitz, writing about the confounding number of liberal law professors and scholars who wrote internet posts professing that the constitutionality of Obamacare’s individual mandate was obvious and undeniable, and that the provision’s Supreme Court approval was assured. As Ethics Alarms did regarding other commentators, Prof. Horwitz suggests that some of the commentary was designed as spin, or to use his term, to “shape the narrative.” He argues that in cases where the scholar was deliberately over-stating the case for constitutionality, this constituted a breach of integrity and honesty. Hie professor-speak for this is “inculpatory.” He means that it was unethical.

Which, of course, it was.

After the disastrous oral arguments before the Supreme Court made it seem very possible, and perhaps likely, that President Obama’s signature legislative accomplishment would be invalidated as an over-expansion of the Commerce Clause, many commentators and scholars who had always believed that the mandate was dubious began asking why so many in the legal scholarship field appeared to be taken by surprise. Some suggested that the field was so overpopulated with liberals that it was a classic echo chamber effect. Others patted themselves on the back and took the misreading of the legal tea leaves as proof that their liberal colleagues were just inferior analysts. But to the extent that some of the law professor bluster about the constitutionality of Obamacare (or Affordable Care Act, to be formal) last week and earlier was just that, it means that scholars were and are trying to mislead the media and thus the public by essentially denigrating the Supreme Court’s majority in a preemptive strike..

If doing this is despicable on the part of a left-biased legal analyst like Slate’s Dahlia Lithwick—and it is—it is infinitely worse when done by a scholar whose opinions, unlike those of a pundit, have special weight and perceived integrity. Such scholars are, simply put, stating that what he doesn’t believe is true is true, in order to “shape the narrative,” that is, to create public perceptions more conducive to accomplishing a political  or policy goal that the scholar favors. True: law professors are lawyers, and lawyers are professional advocates who routinely, properly and ethically argue a position that is their clients’, and that they personally may not hold. Lawyers, however, always make it clear who they are representing, and that their advocacy position is just that. Legal scholars know that their opinions will be relied upon by others and cited as authority; thus they have an obligation to mean what they say, as they say it. To say “There is no merit to the position that the individual mandate is unconstitutional, and if the Supreme Court so holds, it must mean that it is putting partisan considerations over the law of the land” when what one believes is, “I think the mandate should be upheld, but it is close call and I can see it going down. It’s critical, if it is rejected, that the opinion is seen as an ideological strike rather than a principled one, to give the ACA’s supporters a rallying cry,” is intentionally dishonest and an abuse of a scholar’s perceived authority.

Equally as bad, such over-stated opinions don’t just mislead the media, they mislead policy-makers and Obamacare’s defenders as well. Yesterday, President Obama told reporters that he had no “Plan B” if the courts struck down the law, because he was sure that it would be upheld. Personally, I don’t believe that for a minute , since that would be criminally incompetent and irresponsible, but if it was true, the fact that all the scholars Obama follows have been saying that a favorable ruling is a slam dunk would obviously be a factor in causing the Administration to be unprepared. Trusted professionals shouldn’t misrepresent the truth, including the truth of what they believe. To do so causes unpredictable as well as predictable harm.

Pop Quiz: Can we perhaps think of other public policy areas where scholars and authorities have over-stated the certainty of their analysis in order to manipulate public opinion?

 

4 thoughts on “Ethics Quote of the Week: Prof. Paul Horwitz

  1. I read Professor Horowitz’s essay earlier and his points are well taken. However, it also illustrates that it’s not only jurists who have a word-entangling lexicon of their own, but the academians as well. Both need to learn to speak plain English when dealing with those outside their usual circles.

  2. Regarding your pop quiz, I always thought the arguments that lead to the Don’t Ask Don’t Tell policy in the military were about pandering to, or manipulating, public opinion in one of those other policy areas.

    I long pined for the opportunity to ask Oliver North a hypothetical question about his getting rescued from certain death from hostile fire in combat by another trooper – who, he later found out, was homoerotically inclined – to explain why that heroism nevertheless would not be sufficient to justify allowing that trooper to serve in the military.

  3. As for the quiz, you should add a NOT to make this shorter.
    •Global warming
    •dangers of tobacco, drugs, and alcohol
    •the repressed memory witch hunt involving child molestation
    •health issues such as ADD, ADHD, and autism
    •illegal immigration
    •welfare
    •Social Security
    •counting “missing” people for the census
    •abortion
    •and so on

    As far as President Obama’s statments about the health care act, I am astounded he hasn’t read the Evil Overlord list. I guess that’s what happens when you hang out with the Hollywood types.
    Some relevant rules from the list:

    #17 When I employ people as advisors, I will occasionally listen to their advice.

    #12 One of my advisors will be an average five-year-old child. Any flaws in my plan that he is able to spot will be corrected before implementation.

    #24 I will maintain a realistic assessment of my strengths and weaknesses. Even though this takes some of the fun out of the job, at least I will never utter the line “No, this cannot be! I AM INVINCIBLE!!!” (After that, death is usually instantaneous.)

    #61 If my advisors ask “Why are you risking everything on such a mad scheme?”, I will not proceed until I have a response that satisfies them.

    #85 I will not use any plan in which the final step is horribly complicated, e.g. “Align the 12 Stones of Power on the sacred altar then activate the medallion at the moment of total eclipse.” Instead it will be more along the lines of “Push the button.”

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