Paul Horwitz

At least at this moment, one will find no uses of the word “scholactivism” in the Secondary Sources database on Westlaw. Yet readers encountering this neologism here will have little difficulty getting the gist of the word. They will have seen similar terms, like “scholar-activist” or “engaged scholarship.” They may believe the academy is increasingly welcoming of such approaches. They certainly know that in the United States, scholars of this stripe increasingly are targets for legislative interference. But they won’t puzzle over the word itself. That suggests a question worth examining. This is exactly what Oxford’s Tarunabh Khaitan has done, in an excellent article, along with a subsequent response to critics.

Although scholactivism is celebrated by some, Khaitan voices reasons for concern. His take is striking. It’s not the standard argument for “value neutrality in scholarship or pedagogy.” It has no specific political valence. And although it assumes a particular “role morality” for scholars centered on a devotion to “truth” and “knowledge,” it acknowledges that “every human activity—including scholarship—is permeated by power.” Neither, however, does Khaitan proceed by drawing a line between “good” and “bad” scholarship based on its outputs. Rather, he focuses on a motive-based account of scholactivism, and suggests that even scholactivism’s supporters should reject it for “instrumental reasons.”

Of course there are things to disagree with in the article. But I applaud the fact of the article, and its calm and scholarly critical approach to scholactivism. The fact that his article occasioned a good deal of pushback is to its credit. The fact that none of those reactions have appeared in American law journals, on the other hand, is both cause for concern and a sign of defects in the machinery of American legal scholarship. Those defects suggest that Khaitan’s globally oriented critique is especially relevant for American constitutional scholarship.

Khaitan defines scholactivism as scholarship “distinguished by the existence of a motivation to directly pursue specific material outcomes.” Scholarship, we like to tell ourselves, can ultimately change the world. Scholactivism goes a step further. It has the central and immediate purpose of changing a particular thing in a particular way to achieve a specified end. On this view, an article on gun rights, undertaken with no goal other than knowledge and truth, which concludes that the Second Amendment protects the open carrying of firearms is not scholactivism; an article written with the intent to convince a particular legislature or court to craft a statutory or constitutional open carry right is. His response emphasizes the difference between the scholactivist attempt to achieve “direct, proximate, material [ ] impact through one’s scholarship,” and the scholarly motivation to seek “merely discursive” impact.

Khaitan uses two hypothetical figures to illustrate different problems with scholactivism. The “radical” scholactivist is “irrefutably committed to confirming” a position regardless of the research, or pushes an argument the scholar thinks is unsound but likely to convince a judge. His “activist motivation overrides [his] academic commitment to truth and knowledge.” For Khaitan, such a figure is just a strawman. I’m not so sure. I recall a workshop presenter explaining without embarrassment that his article did not fully represent his own views. Rather, he had chosen the argument he thought was most likely to convince Justice Kennedy to cast a particular vote in a specific case.

The “moderate” scholactivist is also motivated by the direct pursuit of material outcomes, but remains committed to “prioritizing the twin objectives of truth-telling and knowledge dissemination.” She presents a “harder case.” Here, Khaitan turns to instrumental concerns.

At the individual level, even moderate scholactivism “usually requires quick responses to concrete problems in particular places.” Scholarship, by contrast, requires “time for reading, thinking, discussing, workshopping, getting peer reviewed, revising, and so on.” The time crunch lowers the guardrails that prevent error. The focus on a specific narrow result risks overlooking “the potential unintended consequences of their normative claims beyond the temporally and spatially proximate issue at hand.” The attachment to a particular goal erodes the scholar’s fundamental “commitment to skepticism and revisability.” More subtly, the scholactivist’s motives makes it harder to admit mistakes, because she is likely to see error as moral, not just intellectual. Finally, since scholactivists, like everyone else, are subject to the lures of fame, “a scholactivist who is celebrated for her causal rule in achieving direct material outcomes rather than her strict truth-telling” will be tempted to move toward radical scholactivism.

Some of these risks apply systemically as well. Khaitan’s vision of scholarship is rooted in a professional role morality, which requires a community devoted to scholarly norms and values. Without such communal norms, it’s harder for us to do things like publicly admit error. Scholactivism “renders a vocational culture premised on robust public criticism by peers,” in which one is expected to accept criticism and confess error when needed, “inherently fragile.” One might add that if scholactivism leads scholars to see their positions as fundamentally moral, not intellectual, we will not only see less confession of error by authors, but also a weakening in the culture of robust criticism by scholarly readers—especially in the absence of political diversity. Scholars won’t want to be accused of benighted views because they dared voice intellectual objections.

The presence of too many scholactivists, even moderate ones, also poses “a systemic risk for the overall health of the academy.” Such a system will lead scholars away from a fundamental attachment to truth-seeking, provide fewer scholarly role models for the next generation, and—as we have arguably seen in the U.S.—erode public trust in scholars and scholarship. Khaitan concludes that “an academy that incentivizes the pursuit of direct material outcomes through one’s scholarship is less likely to lead to a better world than one that self-consciously tries to maintain direct activism as a potential object of a scholar’s inquiry rather than her additional role.”

Khaitan’s article is sober and careful, and notes the many options available to a scholar concerned with justice. It’s also bracing stuff. His response notes that the initial article “unwittingly stepped on a landmine in the culture wars afflicting the academy, and the with-us-or-against-us demands in such tribal culture wars prey upon nuance and the complexity of one’s internal life.” It would dishonor what he actually wrote to praise it for striking a blow in the culture wars—even a blow for truth-seeking. But one side effect of the academic culture wars is that rather than fierce disagreement, there’s sometimes none at all. Right and left talk about each other, but not to each other. And a variety of factors leave scholars on the left—who, if the term is read loosely, surely constitute the majority of American law professors—reluctant to criticize their ideological allies. A progressive empiricist might think, for example, that scholarship based on “lived experience,” not robust statistical data, is problematic. But she’s unlikely to write a piece saying so.

That may be a prudent decision. But it deprives us of the light and heat of the intramural exchanges we used to see. Khaitan shares the substantive views of some progressive scholactivists, and notes in his reply that there is also plenty of politically conservative scholactivism. Yet he is willing to question scholactivism as such, regardless of its political valence, because that is just what a scholar does. The very existence of the piece is thus jot-worthy.

Much of what Khaitan says is widely applicable. But his article deserves notice in this section, and not just because he’s a constitutional law scholar. A fundamental premise of both pieces is that “while the role of constitutional scholars is unavoidably performative to some extent, the two objectives of truth-seeking and knowledge-dissemination apply to them as much as other scholars.” But the fuzziness of the field, its constant interweaving with moral claims—and, perhaps, the professional and financial incentives that might lead an activism-minded individual to choose a well-paid academic perch over a less comfortable life doing constitutional activism directly—all make our field especially fertile ground for scholactivism, and thus demand a critical evaluation of that approach.

Khaitan’s piece is particularly resonant for American scholars, perhaps in ways he didn’t anticipate. He writes that the nature of activism is “in tension with the academy’s need to provide time and distance for research and reflection, inculcate an attitude of skepticism, and reward truth-seekers and knowledge-creators.” Those tensions “put even a moderate scholactivist at risk of failure as a scholar.” The need to publish in a timely fashion to achieve specified goals may lead the scholactivist to, inter alia, “submit the paper to a non-peer-reviewed student-run law review known for its quick publishing decisions and for preferring practice-oriented novel claims over academic rigor.”

For Khaitan, these are perilous moves away from the rigor and role-morality of a true scholar. American legal scholars just call it Tuesday. Seeing these practices through the eye of a non-Stateside scholar reminds us just how few of the ordinary guardrails for serious scholarship are in place in the American legal academy. That strengthens Khaitan’s argument in the United States.

Some responses to Khaitan argue that if a scholactivist takes the short-cuts he worries about, the problem will cure itself, because such work either won’t be published or will be ignored. But the nature of the American legal academic enterprise—the vast number of journals, the reliance on student editors and absence of thorough peer review, the relative lack of political diversity and the two-solitudes relationship between contending sides, the reluctance to criticize the methodologies of one’s friends and allies—exacerbates the risks and weakens the safeguards that both Khaitan and his critics acknowledge. To the usual structural failings, we can add that the current crop of American student law review editors has a marked enthusiasm for scholactivism. They are thus likely to publish more of it, without being able to properly evaluate it (or any other scholarship) for rigor and integrity—and less likely to publish the few critiques of this approach that might emerge from the rather timid U.S. legal academy.

For ardent scholactivists, this might be a plus, not a minus. (They’d be wrong, because these features also weaken the likelihood that any given work will be taken seriously, by courts or anyone else.) But Khaitan’s audience surely includes those who might support moderate scholactivism but are still willing to consider its costs and benefits. For that audience, a look at the actual guardrails for quality within American legal scholarship, in constitutional law and elsewhere—or, rather, the lack of guardrails—will make Khaitan’s arguments much more persuasive.

Some readers may question Khaitan’s framing of scholactivism as “internal and motivational, rather than external and judgmental.” An examination of “an internal dilemma concerning scholarly ethics” is still a worthwhile project. It seems valid to me, moreover, to argue that even a purely internal departure from a scholarly role morality that views truth-seeking and knowledge-dissemination as the “constitutive” traits of a scholar can “be risky (for both truth and justice),” if that sentiment is “widespread and celebrated within an academy.” If he is right that even moderate scholactivism may lead to a rise in the kinds of error that all scholars should worry about, such as failing to engage contrary facts and arguments, then even a motive-centered account that refuses to “give a test for what counts as ‘good’ scholarship” may be beneficial. But I wondered nonetheless whether Khaitan could have said more about scholarly outputs as well as motivations.

More broadly, one might ask whether the systemic risks he warns about require an effort to identify the external indicia of scholactivist work, and a corresponding norm against publishing it. Maybe this is unnecessary, because the indicia of bad scholactivism are the same as those of bad scholarship tout court. But it is possible that we would need to take further steps in the U.S., given our unusual approach to the publishing of legal scholarship. Khaitan argues that 1) scholactivism involves internal motivations that are hard to discern and 2) risks harming the quality of legal scholarship. That suggests an urgent need to pivot away from student editors, who are least qualified to judge both the motives and the quality of scholarship, and toward scholar-edited, peer-reviewed journals. That’s especially true if student editors are both too inexperienced to have assimilated scholarly norms and role morality, and too inclined to favor scholactivism for their own reasons.

Of course, there are compelling reasons to do this regardless of the motives of either scholars or students. The American way of legal academic publishing didn’t suddenly become an embarrassment (which it is) because of the rise of scholactivism. Scholactivism’s rise merely highlights the flaws of the American legal academy’s scholarship structure, reminding us how pitiful our guardrails are.

Regardless, Khaitan has made a valuable contribution, in both his principal piece and his reply, to our thinking about the reasons for and results of legal scholarship. It should be of particular interest to constitutional scholars, and doubly so for American legal scholars. If nothing else, it should encourage and embolden American legal scholars to name and examine the phenomenon of scholactivism—one we are all well aware of, with or without the label—in our own journals. If that doesn’t happen, it will be strong evidence that something has gone wrong with American legal scholars, student editors—or both.