June 21, 2023

Yale Law School professor Oona Hathaway wrote an especially revealing Guest Essay in the pages of the New York Times. By aiding the government’s exceptional indictment against a former U.S. president, she may have violated several laws; the American Bar Association (ABA) Model Rules of Professional Conduct; and the American Association of Law School (AALS) Statement on “Law Professors in the Discharge of Ethical and Professional Responsibilities.”

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Hathaway’s essay demonstrates how extreme ideological fervor can make law professors “legally blind” to what the law actually says. However, Hathaway’s essay, which is but one of many such partisan essays by law professors, amounting to a form of public relations (e.g., this essay), should stop immediately.

What the professors themselves don’t generally appreciate is that they undermine their credibility and that of their institutions, and they violate the core principle of the legal system: objectivity. The concepts of objectivity and neutrality are as basic to law as thermodynamics is to engineering. Choosing sides in the pages of major mass media discards that principle and turns a professor into a political mercenary.

Some might argue that Hathaway and others merely demonstrate legal advocacy—but there is a vast difference between law professors who teach law principles in a classroom and lawyers who use those principles to advocate for a client in a courtroom. Regulations address both these functions, but law school professors struggle to maintain a necessary firewall between them or even to understand that academic freedom is intended for the academy.

Image: Yale Law School by Nick Allen. CC BY-SA 3.0.

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As University of Nebraska professor David Moshman explained, “Academic freedom is the freedom to do academic work.” Writing in the pages of the New York Times is not academic work; it is public relations work, and with it comes other professional responsibilities that outweigh all others. The AALS Statement asserts that:

American law professors typically are members of two professions and need to comply with the requirements and standards of both. Law professors who practice law are subject to the law of professional ethics in force in the jurisdictions in which they are licensed to practice. In addition, as members of the teaching profession, all law faculty members are subject to the regulations of the institutions at which they teach and to professional guidelines that are more generally applicable, such as the Statement of Professional Ethics of the American Association of University Professors. This Statement does not diminish the significance of these other sources of ethical and professional conduct. Instead, it is intended to provide general guidance to law professors concerning ethical and professional standards because of the intrinsic importance of those standards and because law professors serve as important role models for law students. (Italics mine).

Some might argue that Hathaway and others are demonstrating rhetoric, which is a major part of law. To an extent, it is, but what exactly is rhetoric? To be rhetorical does not mean to be deceptive, mendacious, or even misleading. Rhetoric matters as an art of thinking coherently because, no matter how convincing a lawyer may believe she is, if the rhetorical device does not convey truth and accuracy to a judge or jury, then it generally fails to persuade or withstand appeal.

Hathaway’s argument in the Times is not meant to persuade but to influence—but not “influence” that educates or stimulates reason among general newspaper readers. Instead, her argument is meant to stop thinking and to be passively influenced. Hathaway does this, in part, by inference, with photos of closed, unverified document boxes stacked in unverified locations; and by association, by showing pictures of an unrelated party accused of a national security violation.

Mostly, Hathway seems intent on building a narrative for sentencing. Her essay includes an image of Reality Winner posing as the Left’s apparent archetype of a rural “deplorable,” complete with barbed wire fencing, a dilapidated van, and a trailer in the background. Winner was convicted on charges involving secure documents in a national security setting and received a sentence exceeding 5 years for a single count. Ms. Hathaway suggests that Trump should receive a longer sentence for his 37 counts (31 under the “Espionage” Act).

As renowned criminal defense attorney Gerry Spence said, “Skepticism, not cleanliness, is next to godliness. Skepticism is the father of freedom. It is like the pry that holds open the door for truth to slip in.”