Chillin'Competition

Prof W. Simon (Stanford Law School) has a controversial, amusing, piece on academics providing legal advice. In essence, Simon argues that the incentives’ structure and informational opacity surrounding academics’ advisory work leads to “bad legal advice“. In his paper, Simon seeks to provide empirical evidence of this. To this end, he actually trashes three US colleagues, who allegedly delivered bad advice in a case he was involved in.

To correct this market failure, Simon suggest a remedy consisting in increasing transparency and publicly “shaming” colleagues (disclosing their names) with poor performance. Prof. Green (Fordham University)wrote a strong rebuttal.

I paste hereafter Simon’s conclusion.

The defining characteristics of quasi-third-party legal advice – the absence of a strong duty of care to the ultimate addressees and secrecy – create a market for bad legal advice. Of course, the market does not invariably produce bad advice, but it consistently encourages bad advice.

The market for bad legal advice is a problem for professional and academic morality. Professional responsibility norms are designed to encourage demand for and reliance on legal advice by prescribing safeguards that deter bad advice. However, these norms have largely been pre-occupied with first party advice, and to a smaller extent, traditional explicit third-party advice. However, quasi-third-party advice involves the kinds of stakes that have traditionally motivated professional regulation. The advisor invokes the authority of the profession to encourage reliance that has public consequences. The social value of good legal advice is usually understood in terms of enforcement or vindication of law. Bad advice tends to impair enforcement and vindication and to undermine the status and authority of the profession.

When academics give quasi-third-party advice, there is a parallel problem for the academy. Academic norms focus on conduct with respect to scholarship. Quasi-third-party advice usually does not take the form of scholarship. However, it characteristically invokes the reputation of the University in order to encourage public reliance, and this reliance often has significant public consequences. Quasi-thirdparty practice is thus in tension with academic norms holding that openness, and especially exposure to peer criticism, is a fundamental safeguard of the soundness conclusions.