Legal Opinions For Free
Seldom does a day go by in the thrill-a-minute life of a sports law professor without being asked to give an opinion on Roger Clemens. Did he use performance enhancing drugs? Is he lying? Should he be elected to the Hall of Fame?
I always give an answer, albeit just for fun not the same one every time. Sometimes I point out Brian MacNamee's obvious motivations to fabricate (to get a deal); other days I sum up the direct (MacNamee's claim) and circumstantial (Clemens' late-career success) evidence and pronounce Clemens' guilt; at other junctures I argue that such drugs should not be against baseball's rules to use. But did Clemens use the drugs? The truth is that I'm just as much in the dark as everyone else. The other truth is that I'm reluctant to admit it.
Contrary to popular belief, lawyers have no special training in truth or justice, nor does our limited life experiences make it otherwise. We can talk about evidence and procedure, process and proof, and perhaps we can even hazard an informed guess as to likely jury outcomes, but that's about it. We no more know if Roger Clemens actually doped up than does any other outside observer; indeed, our preoccupation with the technicalities of the law likely puts us at a disadvantage in knowing the truth. We may either be professionally uninterested in the truth or be so distracted by legal matters that we spend little of the time we devote to a particular issue actually thinking about the ultimate issue.
To put it succinctly, WE DON'T KNOW.
Yet we law professors are asked anyway, in person, by phone, in emails, on the radio or even on television, and instead of giving the forthright response (see the capital letters, just above) we fumble around and try to find something interesting to say. It's a weird position we're in. We're professors, whose job description is to take the long view and to give opinions haltingly, with qualification, and only after prolonged contemplation and study. Yet the fellow with the microphone in our face doesn't want to wait six months for what will be at best an equivocal answer. So why do we answer the phone? Why give a reporter (as I just did today, as it happens) all kinds of quickly qualified opinions when obviously he, like most reporters, wanted none of it? He just wanted a punchline he could put my name to and that was that. I guess a professor who spends his days carving out very small pieces of lucidity in the opaque world of legal scholarship, which pieces will one day form the modest insight of modest legal scholarship, wants instead to be relevant to and noticed by a larger audience (speaking for myself, for sure), even when the translation of our thoughts to that audience is necessarily inexact, unqualified, and often even dishearteningly wrong.
Yes, we're often wrong.
1. A lot of what we law professors say in public is wrong, factually so. I see it all the time, at least when the confident opinions of professor/media stars veer into legal issues with which I am intimately familiar. Even my own words quoted in a news story, isolated as they are from the entirety of the sentences that surrounded them when I uttered them, have appeared strange to me, appearing to endorse positions I would deny. Yet it has to be this way. Take, umm, sports law for instance. Sports law is (potentially) all the law in America applied to sports. That's a lot of law. A typical news cycle (I think that means about a week, in journalist-lingo) will find people asking me opinions on the first amendment, the fourth and fifth, criminal law, criminal sentencing, civil procedure, torts, defamation, drug use, and drug testing. Periodically issues will arise in sports that involve international law, antitrust law, labor law, copyright, trademark and broadcast rights, plus who knows what. Not too long ago I was giving an opinion about dog fighting, of all things. Now sure, the research team here at the TSLP website is hard at it around the clock researching all the law in America as it applies to sports. But even our impressive resources (we're funded by several huge multinational conglomerates) are stretched thin. Let's hope this Clemens thing stays as simple as it is. Heaven help me if Clemens resorts to witness tampering or outright bribery to stifle MacNamee; what will I say then? What are those statutes? Worse still if Clemens' conduct raises a tricky choice of law question: what if Clemens, a Texan, purchased steroids from Radomski, a New Yorker, and then was injected by MacNamee, a Californian, while Clemens' ample buttocks were in Florida? Which state law applies? Should I have kept my darn law school notes from twenty years ago? Would I go on television that night to offer an opinion about conflict of law doctrines? Sure, just give me a call.
2. Of course there's a patent psychological aspect to all of this. The hardest answer is the easiest: just admit you don't know. I do this all the time on the telephone with reporters. I can sense the palpable disappointment in the voice of the reporter, but so what: I've yet to see this statement of mine quoted, as illuminating as "I don't know" might be. But on live television or the radio? I can't honestly say I would just admit ignorance. I'd probably dodge the question and try to find something interesting or distracting to say instead. (Perhaps this moment would be an optimal time for me to accuse Clemens of taking steroids or MacNamee of lying, depending on my mood.) Media interviewers seem to think we sports law professors know everything, just because the law has intersected with sports and we're sports law people, so there you go. I have seen law professors on television (like, say, during the Bush-Gore election fight, or the O.J. Simpson trial) dodge questions; like me, these are people who are at times answering questions far, far afield from their areas of particular expertise. Just once I'd like to see a law prof on a live broadcast admit he doesn't know something. I just hope when that happens, it wasn't me doing the admitting.
3. There's also an ethical point here as well. The easy, glib, smug, "correct" observation, which I am entirely convinced is wrong, is that we professors should either refrain entirely from media appearances, or should speak only to those matters that fall squarely within our zones of expertise, and even then only after appropriate reflection. This position sounds nice, but is untenable. First of all, except in very limited circumstances, perhaps where a professor or other expert is merely providing some banal background information ("the formal criminal process begins with an indictment"), never, ever is there enough time for appropriate reflection, at least not in the way my business defines it. Law professors study problems literally for years before offering comments or solutions. The timetable of the professor is wholly incompatible with news journalism. Second, almost never does a salient public matter fit squarely or even substantially within a particular professor's particular specialty. We may teach a basic survey course with a large title (like "Criminal Law"), but every professor within that field is devoting his or her research and writing effort to a much more specialized set of issues within that field. No one is really a specialist in all of the criminal law. Third, however ignorant we are outside of our particular specialized branch (at least as compared to a specialist in that sub-field), we do know more than our interrogator. Thus, our answers, although not informed enough to support academic legal scholarship, are informed enough to help non-lawyers understand a problem and perhaps leave them better informed. We can help these reporters (and by extension their readers/viewers), even on legal topics well outside our field. What should we say, "I don't know"? We do know, we know something anyway, and what we know may help things along a bit. What's the alternative, for the reporter to call on different professors each time the reporter's questions cross over sub-specialties? How would the reporter know whom to call in the first place?
4. Sports law is especially difficult on all these counts. The (theoretical) breadth of the field is enormous, even unwieldy, and thus utterly resistant to any one person's implicit claim of mastery. On the other hand, relatively few law professors venture into this field (the others are cowards), and so the need for those of us who do affix this claim to our bio's to help the media out is acute. To be honest, I have no doubt that the reason I (and I suspect others in this field) tend to draw quite a few media inquiries is because reporters need help, and the label "sports law" seems to fit the bill whenever the law and sports intersect. We can't just shirk; we have to take our share of media inquiries and give some (dangerously offhand) legal opinions for free. So we'll be talking about the law of labor relations one day and criminal trials the next. I'll admit it doesn't always feel good, and sometimes I find myself wishing I had thought through a particular question a little more thoroughly before answering. I'll add that I turn down more chances to comment than I accept, and that television particularly concerns me, because the unstated expectation of omniscience (coupled with my hubristic insecurity) would make me unable to admit ignorance when such admission is fairly required. I have turned down repeated requests to appear again on the various Fox news programs, after being tormented on the Hannity and Colmes show (thanks, I should add, to the many, many, many of you who have written to make fun of me for that; I love you too.) So I guess I sort of put my money where my mouth is, although all opinions could change if I get my own radio show, which I want.
5. So, did Clemens do it? Of course I know the answer. I'm a sports law professor, right?
I always give an answer, albeit just for fun not the same one every time. Sometimes I point out Brian MacNamee's obvious motivations to fabricate (to get a deal); other days I sum up the direct (MacNamee's claim) and circumstantial (Clemens' late-career success) evidence and pronounce Clemens' guilt; at other junctures I argue that such drugs should not be against baseball's rules to use. But did Clemens use the drugs? The truth is that I'm just as much in the dark as everyone else. The other truth is that I'm reluctant to admit it.
Contrary to popular belief, lawyers have no special training in truth or justice, nor does our limited life experiences make it otherwise. We can talk about evidence and procedure, process and proof, and perhaps we can even hazard an informed guess as to likely jury outcomes, but that's about it. We no more know if Roger Clemens actually doped up than does any other outside observer; indeed, our preoccupation with the technicalities of the law likely puts us at a disadvantage in knowing the truth. We may either be professionally uninterested in the truth or be so distracted by legal matters that we spend little of the time we devote to a particular issue actually thinking about the ultimate issue.
To put it succinctly, WE DON'T KNOW.
Yet we law professors are asked anyway, in person, by phone, in emails, on the radio or even on television, and instead of giving the forthright response (see the capital letters, just above) we fumble around and try to find something interesting to say. It's a weird position we're in. We're professors, whose job description is to take the long view and to give opinions haltingly, with qualification, and only after prolonged contemplation and study. Yet the fellow with the microphone in our face doesn't want to wait six months for what will be at best an equivocal answer. So why do we answer the phone? Why give a reporter (as I just did today, as it happens) all kinds of quickly qualified opinions when obviously he, like most reporters, wanted none of it? He just wanted a punchline he could put my name to and that was that. I guess a professor who spends his days carving out very small pieces of lucidity in the opaque world of legal scholarship, which pieces will one day form the modest insight of modest legal scholarship, wants instead to be relevant to and noticed by a larger audience (speaking for myself, for sure), even when the translation of our thoughts to that audience is necessarily inexact, unqualified, and often even dishearteningly wrong.
Yes, we're often wrong.
1. A lot of what we law professors say in public is wrong, factually so. I see it all the time, at least when the confident opinions of professor/media stars veer into legal issues with which I am intimately familiar. Even my own words quoted in a news story, isolated as they are from the entirety of the sentences that surrounded them when I uttered them, have appeared strange to me, appearing to endorse positions I would deny. Yet it has to be this way. Take, umm, sports law for instance. Sports law is (potentially) all the law in America applied to sports. That's a lot of law. A typical news cycle (I think that means about a week, in journalist-lingo) will find people asking me opinions on the first amendment, the fourth and fifth, criminal law, criminal sentencing, civil procedure, torts, defamation, drug use, and drug testing. Periodically issues will arise in sports that involve international law, antitrust law, labor law, copyright, trademark and broadcast rights, plus who knows what. Not too long ago I was giving an opinion about dog fighting, of all things. Now sure, the research team here at the TSLP website is hard at it around the clock researching all the law in America as it applies to sports. But even our impressive resources (we're funded by several huge multinational conglomerates) are stretched thin. Let's hope this Clemens thing stays as simple as it is. Heaven help me if Clemens resorts to witness tampering or outright bribery to stifle MacNamee; what will I say then? What are those statutes? Worse still if Clemens' conduct raises a tricky choice of law question: what if Clemens, a Texan, purchased steroids from Radomski, a New Yorker, and then was injected by MacNamee, a Californian, while Clemens' ample buttocks were in Florida? Which state law applies? Should I have kept my darn law school notes from twenty years ago? Would I go on television that night to offer an opinion about conflict of law doctrines? Sure, just give me a call.
2. Of course there's a patent psychological aspect to all of this. The hardest answer is the easiest: just admit you don't know. I do this all the time on the telephone with reporters. I can sense the palpable disappointment in the voice of the reporter, but so what: I've yet to see this statement of mine quoted, as illuminating as "I don't know" might be. But on live television or the radio? I can't honestly say I would just admit ignorance. I'd probably dodge the question and try to find something interesting or distracting to say instead. (Perhaps this moment would be an optimal time for me to accuse Clemens of taking steroids or MacNamee of lying, depending on my mood.) Media interviewers seem to think we sports law professors know everything, just because the law has intersected with sports and we're sports law people, so there you go. I have seen law professors on television (like, say, during the Bush-Gore election fight, or the O.J. Simpson trial) dodge questions; like me, these are people who are at times answering questions far, far afield from their areas of particular expertise. Just once I'd like to see a law prof on a live broadcast admit he doesn't know something. I just hope when that happens, it wasn't me doing the admitting.
3. There's also an ethical point here as well. The easy, glib, smug, "correct" observation, which I am entirely convinced is wrong, is that we professors should either refrain entirely from media appearances, or should speak only to those matters that fall squarely within our zones of expertise, and even then only after appropriate reflection. This position sounds nice, but is untenable. First of all, except in very limited circumstances, perhaps where a professor or other expert is merely providing some banal background information ("the formal criminal process begins with an indictment"), never, ever is there enough time for appropriate reflection, at least not in the way my business defines it. Law professors study problems literally for years before offering comments or solutions. The timetable of the professor is wholly incompatible with news journalism. Second, almost never does a salient public matter fit squarely or even substantially within a particular professor's particular specialty. We may teach a basic survey course with a large title (like "Criminal Law"), but every professor within that field is devoting his or her research and writing effort to a much more specialized set of issues within that field. No one is really a specialist in all of the criminal law. Third, however ignorant we are outside of our particular specialized branch (at least as compared to a specialist in that sub-field), we do know more than our interrogator. Thus, our answers, although not informed enough to support academic legal scholarship, are informed enough to help non-lawyers understand a problem and perhaps leave them better informed. We can help these reporters (and by extension their readers/viewers), even on legal topics well outside our field. What should we say, "I don't know"? We do know, we know something anyway, and what we know may help things along a bit. What's the alternative, for the reporter to call on different professors each time the reporter's questions cross over sub-specialties? How would the reporter know whom to call in the first place?
4. Sports law is especially difficult on all these counts. The (theoretical) breadth of the field is enormous, even unwieldy, and thus utterly resistant to any one person's implicit claim of mastery. On the other hand, relatively few law professors venture into this field (the others are cowards), and so the need for those of us who do affix this claim to our bio's to help the media out is acute. To be honest, I have no doubt that the reason I (and I suspect others in this field) tend to draw quite a few media inquiries is because reporters need help, and the label "sports law" seems to fit the bill whenever the law and sports intersect. We can't just shirk; we have to take our share of media inquiries and give some (dangerously offhand) legal opinions for free. So we'll be talking about the law of labor relations one day and criminal trials the next. I'll admit it doesn't always feel good, and sometimes I find myself wishing I had thought through a particular question a little more thoroughly before answering. I'll add that I turn down more chances to comment than I accept, and that television particularly concerns me, because the unstated expectation of omniscience (coupled with my hubristic insecurity) would make me unable to admit ignorance when such admission is fairly required. I have turned down repeated requests to appear again on the various Fox news programs, after being tormented on the Hannity and Colmes show (thanks, I should add, to the many, many, many of you who have written to make fun of me for that; I love you too.) So I guess I sort of put my money where my mouth is, although all opinions could change if I get my own radio show, which I want.
5. So, did Clemens do it? Of course I know the answer. I'm a sports law professor, right?
posted by TSLP at 2/09/2008
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