What is going on with Laurence Tribe, professor at Harvard Law School, mentor to Barack Obama, and one of the most venerated legal scholars in the country? Over the past month, he has come under widespread and sometimes vicious attack. He has been called a sellout and a traitor whose arguments are “baseless” and “far-fetched” by professors at New York University, Harvard, and Georgetown. Most of the specific criticism arises from his representation of Peabody Energy, a coal company, in its effort to squash the Environmental Protection Agency’s regulation of carbon emissions. Of course, it is natural, and part of the job of an academic, to have people disagree with you. But there is a more serious question here: Is Tribe being unfairly indicted for a deviation from liberal orthodoxy, or has he taken steps that justifiably undermine his credibility as a scholar?
Tribe has long been among the nation’s most highly regarded law professors. He is a gifted writer and thinker; his treatise “American Constitutional Law” gained deservedly canonical status in the nineteen-eighties. Over that decade, Tribe also built a strong reputation as a practitioner of constitutional law by arguing a series of high-profile Supreme Court cases, the best known of which was probably the gay-rights case Bowers v. Hardwick. This left him in a unique position. “Never before in American history has an individual simultaneously achieved Tribe’s preeminence both as a practitioner and as a scholar of constitutional law,” William Powell wrote in 1986.
Tribe’s dual role of scholar and practitioner is uncommon, but not unheard of, in legal academia. In some countries, legal academics are thought of as neutral expositors of the law and therefore barred from legal practice. But that is certainly not the case in the United States, where many scholars take work as paid consultants, expert witnesses, or even active counsel. This “scholar-warrior” model has historical pedigree and advantages of its own. Legal scholars with at least some connection to practice tend to have a deeper, more impressive feel for their area of expertise. Professors are always in danger of becoming too disconnected from reality—of spending their time throwing pseudo-light onto non-problems, as Kingsley Amis once put it.
But it would also be foolish to ignore the inherent tension in searching for truth while also working for paying clients. The scholar-warrior may lapse into a far more contemptible figure: the scholar for hire, who sells his name and his title for cash. A subtler danger comes from the well-known and nearly unavoidable tendency lawyers have of identifying with their clients. As the law professor Rebecca Eisenberg wrote in 1993, “The role of advocate calls for constructing persuasive arguments that will generate favorable outcomes for clients. This is very different from the function [academics] perform as scholars.” In this manner, working for a client, over the long term, can prove corrupting, not just because of the money but because of natural human loyalty. “If consulting activities distort the views that law faculty espouse as scholars, then academic freedom is failing to perform its essential function,” Eisenberg said.
The signs of this more subtle distortion are obvious once you know what you are looking for. A progressive scholar who believes that large corporations endanger democracy begins to make inexplicable exceptions for Microsoft or Google. Another, who made his name as a conservative libertarian, supports regulation that also happens to be useful to A.T. & T. Alternately, a scholar may become entrenched in his or her views to the point of absurdity. Nothing can change his mind, for going soft might endanger his inflated income and anger his friends. If this kind of thing goes too far, academia can become thoroughly corrupted.
The seeds of the present controversy can be found in the late nineteen-eighties, when Tribe enlarged both the scope and the intensity of his litigation practice. He began to operate what was, essentially, a small law firm, located in a building next to his Cambridge home that happened to be a well-known Philip Johnson house. His practice was staffed by law students, working as if they were associates, and recent graduates, some of whom actually lived in the office. Sometimes, Tribe worked alone; other times, he worked in partnership with corporate law firms.
Most universities put some limit on the amount of time that faculty may spend on “outside” activities. Harvard’s conflict-of-interest policies are vaguer than most, but they roughly suggest that outside activities remain secondary to serving the university’s academic mission. While Tribe surely spent much time and effort litigating, few would deny that Tribe continued to perform his academic job very well. Indeed, he has been widely praised for his teaching, and beloved particularly by his research assistants, many of whom have gone on to important careers in practice, academia, and politics.
Over the years, Tribe has represented many clients for free, such as in the gay-rights movement or when he lent his talents to the State of Massachusetts in its suit against the tobacco industry. It may come as a surprise for those who regard Tribe as a progressive hero to learn that he also began to devote much of his time and effort to working for large corporate clients. In particular, Tribe developed a lucrative practice often premised on invoking his clients’ constitutional rights as “corporate persons” to try and avoid federal and state regulations.
Tribe has had far too many clients to describe fully, but it is possible to give some examples. He helped General Electric argue that being ordered to clean up hazardous waste sites on the Hudson River was a violation of its constitutional rights. He aided Pacific Gas and Electric in complex bankruptcy proceedings, and defended Nike in a suit that claimed the company was lying about its sweatshop practices. Tribe also helped American Trucking Associations and the Petroleum Marketers Association of America fight common-law claims related to global warming. More recently, he assisted a hedge fund named Bulldog Investors in trying to block the enforcement of certain securities laws; his argument was based, in part, on the idea that such laws violated the fund’s First Amendment rights. In the nineteen-nineties, he worked on multiple cases helping the Bell companies try to avoid or nullify telecommunications regulation, and in the 2009 he helped Time Warner Cable fight net-neutrality rules, based on a theory of corporate First Amendment rights. In short, Tribe’s representation of Peabody Energy is nothing new. It is rather representative of his work over the past two decades.
How you feel about this work probably depends on how you feel about the use of the Constitution as an anti-regulatory tool and the idea of corporations as constitutional “persons.” Tribe has taken a strong view of individual rights; his view of corporate rights is similar, and in this capacity he has at times advanced constitutional arguments that might invalidate great parts of the administrative state, in a manner recalling the Supreme Court’s jurisprudence of the nineteen-twenties and thirties. In that sense, the current condemnation of Tribe can be seen as part of a larger progressive backlash against the use of the Bill of Rights to serve corporate interests.
If some of the opposition to Tribe, then, is a disagreement with his views, there is a different objection to Tribe’s work based not on the merits of his claims but on his devotion of so much time and energy to what are very well-represented clients like Nike and General Electric. At present, Tribe’s disclosed list of clients includes the American Petroleum Institute; an investment fund whose identity “must remain confidential for now”; the Alliance to Protect Nantucket Sound, an anti-wind-power group chaired by William Koch; PokerStars, on whose behalf he argues that gambling regulation is unconstitutional; 7-Eleven; and, of course, Peabody Energy.
When I asked Tribe whether he thought that his practice might have deviated too far toward the service of private interests, he responded, “My litigation practice over the past three decades includes only cases in which I thought I was advancing an important public interest through my advocacy.” Tribe, in other words, isn’t saying that his work is justified just because legal scholars should be given some latitude for paid work. He’s arguing, instead, that his work is part of his academic mission.
Public litigation by scholars does indeed have a long and often distinguished history. Felix Frankfurter was a professor at Harvard when he worked on habeas briefs to free those detained during the Palmer raids, in 1919-20. Anthony Amsterdam, then at Stanford Law School, argued in a series of cases in the nineteen-seventies that the death penalty was cruel and unusual punishment. And the idea of public-service litigation is not limited to a liberal agenda: the category surely includes the University of Utah professor Paul Cassell’s work to establish that Miranda v. Arizona could be modified by Congress. What these efforts have in common is the representation of marginal ideas that otherwise might not be heard or argued.
It seems much harder to swallow the idea that Tribe’s paid work on behalf of Peabody Energy or Bulldog Investors is properly viewed as work in the public interest, at least in this tradition. Tribe says that because he sincerely believes the arguments he is making on behalf of such clients, he is advancing his academic views and therefore performing a public service. As he said to the Times, in reference to the coal case, “Somebody wanted my help and it happened to coincide with what I believe.” He clarified his stance in an e-mail to me: “In my litigation, I have deliberately taken on only cases that fit squarely within my writing and teaching interests and in which my position would be consistent with the conclusions I had reached in my purely academic work.”
Should Tribe be let off the hook if he sincerely believes his positions? That surely matters somewhat. It would be much worse, as an academic, to simply sign one’s name to views not really held, in exchange for money. But for work to be considered in the public interest, it ought to be, at least in part, on behalf of clients who are in some way underrepresented, or present views that would not be heard. This is true of some of Tribe’s work; but in much of it he is empowering the powerful. Tribe usually buttresses the work of corporate defense attorneys, as in the arguments he has made against net neutrality. In the Peabody Energy case, his constitutional arguments, including the idea that the regulation of carbon is an unconstitutional “taking,” are well-worn anti-regulatory bromides. As two of his Harvard colleagues wrote, “Were Professor Tribe’s name not attached to them, no one would take them seriously.”
Underlying that quote is the suspicion that Tribe might very well hold different, if equally sincere, beliefs had he not been loyally representing so many corporate defendants for so long. None of us, of course, is truly objective or beyond being influenced by those for whom we work or with whom we associate. Hence Tribe’s corporate work has created skepticism about where his views come from, even if they are sincere (which I believe they are), and this is what is creating the reputational damage.
Rebecca Eisenberg, in 1993, warned that law professors who work as lawyers may “tarnish their reputations as scholars, and perhaps even diminish their future effectiveness as advocates, if they publish patently foolish or disingenuous views.” It is not so easy to preserve one’s reputation for pursuing truth and justice at a leading American law school while simultaneously working as a top-billing attorney in service of the nation’s richest corporations. I continue to believe in the merits of professors who engage in their fields, and Tribe has pulled off his brilliant balancing act for years. Having demonstrated the potential, however, he is now demonstrating some of the perils.
