Consistent Legal Scholarship?

Eric Posner has called attention to his occasional coauthor Adrian Vermeule’s forthcoming article-length critique of Philip Hamburger’s most recent book, Is Administrative Law Unlawful? (If you don’t want to wait for the review to appear in the pages of the Texas Law Review you can access a copy at SSRN here.) Over at The Originalism Blog, Michael Ramsey opines that Vermeule’s critique of Hamburger is inconsistent with Vermeule’s defense of the imperial Presidency in the last book he coauthored with Posner, The Executive Unbound. Vermeule has since shot back that there is no inconsistency between Executive and his current critique of Hamburger (though without explaining why). Interestingly, Vermeule has “den[ied] that consistency is a virtue for academics.” Does he mean all academics or just legal academics? And regardless, why?

Perhaps Vermeule doesn’t mean much by the statement, or at least not mean anything more than that academics should not feel bound by their earlier work, especially if that work contains empirical, theoretical, or other scholarly shortcomings. Fine. While many young scholars are bashful about owning up to weaknesses in their work (especially if they don’t have tenure), age sometimes has a way of tempering pride. To stick with the legal realm for a moment, both Richard Posner and Richard Epstein — two towering quasi-conservative legal thinkers whose works have influenced several generations of judges, lawyers, and other law professors — have recanted earlier views. Epstein, who began his career as a deontological libertarian suspicious of the Law & Economics (L&E) movement, is now a full-fledged proponent of L&E, which has, perhaps surprisingly, cooled his youthful libertarian instincts a bit. (Epstein now defines himself as a consequentialist classical liberal.) Posner, much to the chagrin of some of his (former?) colleagues, has steadily distanced himself from muscular iterations of Chicago School-style L&E, even going so far as to promote a return to the work of John Maynard Keynes following the 2008 financial crisis.

What stands out about both men is not so much that they have shifted their views but that they have been upfront about it. Posner, through eight editions of his pioneering Economic Analysis of Law, has documented changes in his thinking while leaving to the side ideas and positions that he no longer finds tenable. Epstein, for his part, regularly comments on the ideological shift he underwent in the early 1980s. One of his more recent works, Design for Liberty, even demonstrates a bit of warming toward government administration.

So no, perhaps consistency isn’t a virtue, but if a thinker’s newer work is out-of-synch with earlier output in a substantial why, shouldn’t they be open about it? Maybe Vermeule (and others) wouldn’t agree. Perhaps he takes a far more relaxed attitude toward inconsistency, meaning that an academic could argue for one year and not-the next. And why not? If both arguments will land one in an elite journal such as the Harvard Law Review or the Yale Law Journal, isn’t that “the point” of being an academic? Or maybe Vermeule would conflate legal academia with the legal profession. Lawyers, after all, argue contrary positions all of the time depending on the client, and some law professors even turn against their own academic work when there’s big money involved. After all, Robert Bork, who first made a name for himself attacking the overinflated and impressionistic nature of U.S. antitrust analysis before going on to write The Antitrust Paradox, eventually came around to calling the Justice Department’s infamous monopolization case against Microsoft “rock solid.” (To be fair to Bork’s legacy, some scholars, such as Harry First, have come to Bork’s defense, arguing that his antitrust views remained consistent over time, even if that claim is hard to accept on its face.)

I for one would like to know more about Vermeule’s take on consistency in legal scholarship and, more specifically, whether he believes he has been consistent over the course of his fascinating — and some might say pathbreaking — academic career. That doesn’t mean there aren’t plenty of opportunists lurking around legal academia who are only more than happy to write a “publishable piece” contrary to their real views if it can land them an elite placement and assist in their career advancement. Some scholars probably never realize when they are being inconsistent, and their rather low-level contributions to legal studies means that few, if any, notice. I still remain attracted to the view that if one does change their views or alters a position champed earlier in one’s career, then just say so. It demonstrates far more intellectual and personal maturity than playing the caginess card.