As those who have been following New Legal Realism know, a core question for us is how best to translate social science for law?  Indeed, sometimes we’ve asked whether you can even “get there from here.”  In a provocative New York Times column, Nicholas Kristof called out to members of the academy, welcoming their input to public debate while bemoaning their failure to reach out beyond narrow disciplinary boundaries: “Professors, We Need You!” 

Kristof has received pushback from academics, who have pointed out that he failed to recognize the many professors already actively involved in public debate, the many more who’d like to be if the media would only let them, and the ways the structure of the university punishes those who spend too much time on such efforts: see, for example these posts: 1. Huffington Post; 2. Corey Robin; 3. Scientific American  (and more– see bottom of the page for links to more responses)

We at the New Legal Realism blog were delighted to see this much-needed conversation take off.   Regardless of Kristof’s blind spots, he has called attention to an ongoing problem:  how do we get some of the best-informed views into the public domain, without eviscerating those views in the process??   The “old” Legal Realists shared this concern, hoping to apply the best available social science knowledge to policy issues facing this country during the New Deal era…. and the New Legal Realists are working toward a similar goal today.  In both eras, similar problems persist: easy answers are more palatable than complex ones; a number or quantitative result seems simpler, but by itself often misses the depth of qualitative research; politics and law often warp the information received from careful researchers beyond recognition.  In the following piece, new NLR blogger Joe Margulies replies to Kristof with a challenge of his own, saying in essence: 

Journalists, We Need You Too!

 Have academics abandoned the public square?  Nicholas Kristof apparently thinks so. In his column in the New York Times, Kristof complained that the academy has developed “a culture that glorifies arcane unintelligibility while disdaining impact and audience.”[1] Part of this is old; mocking academic gibberish makes easy sport, and because it is easy, has often been done. But the claim that academics not only speak nonsense but court irrelevance is a more serious charge. Is it true?

Well, yes and no. It is certainly true that a great many academic specialists have deliberately taken themselves out of public life. And that’s a shame, since their expertise could help bring more light and less heat to the issues of the day. But who can blame them? Imagine yourself an authority on climate change at a small Midwestern university. For years, you have carefully studied the evidence. One day, you pen an editorial for your local newspaper in support of some initiative—say, perhaps, a high-occupancy commuter lane on a nearby highway. You point out that, among other benefits, carpooling might help reduce greenhouse gases and slow the rate of global warming.

And for that, you are attacked as an idiot, a climate change clown, Al Gore’s dupe. A week later, your wife, an environmental engineer and a leading authority on the Keystone Pipeline, writes a cautious piece for the Wall Street Journal suggesting that, on balance and when all the evidence is carefully considered, the project poses only modest risks to the environment and is worth supporting. Guess what? She’s an idiot too! A tool of industry, bought and paid for by big oil. So the next time Kristof calls with a question about nuclear power, we can forgive you both if you decide to let the phone ring and take the dog for a walk instead. Who needs it?

My work has put me on the receiving end of this vitriol many times. I was lead counsel in Rasul v. Bush, involving detentions at Guantánamo, and presently represent Abu Zubaydah, for whose interrogation the Bush Administration drafted the infamous torture memo. Periodically, I venture into the public square, usually through columns that appear in local or national outlets. And in an age of social anonymity, when anyone with two fingers and an Internet connection can track you down, my comments invariably produce at least a handful of vicious emails, the most disappointing of which denounce me as a bad Jew—a criticism I find especially ironic.

Yet hyper-partisanship and its ever-present shadow, appalling incivility, are only part of the problem. Many academics would like nothing more than to see their ideas discussed in the Times, if they could be sure their research would be given a fair hearing. But that happens so very rarely. For a host of reasons, some more satisfactory than others, the media is given to telling the familiar story with the simple take-away, the message that reaffirms what its audience believes is the conventional wisdom. This not only rewards ideological extremism, it discourages complexity.[2] Sometimes, journalists are like that guy on the plane with the noise cancelling headphones; they don’t hear half of what we say.

And it’s not just a matter of selective listening. The tendency of the press to favor the conventional wisdom automatically puts them in tension with the work being done by any conscientious academic. Why would a good historian or political scientist want to spend her time reaffirming what everyone already believes? That’s not only boring, it’s a waste. The best academics spend their days testing, questioning, and challenging the conventional wisdom, trying to explain what doesn’t fit rather than simply repeating what does. That means their research might be tentative or incomplete as they take a fresh look at old riddles. This tends to fit uneasily with the need-it-simple-and-need-it-now approach of many journalists.

Yet despite all this, I ultimately agree with Kristof and believe academics have not only a special opportunity to make their voices heard, but an obligation to try. Events occasionally present the moment when academics can influence the great debates of the day. And if we can, we should. I recall, for instance, when Mitt Romney foolishly said that 47% of the voters “are dependent upon government” and “believe that they are victims, [that] the government has a responsibility to care for them, who believe that they are entitled to health care, to food, to housing, to you-name-it. … My job is not to worry about those people. I’ll never convince them they should take personal responsibility.”

What a perfect moment for Suzanne Mettler, my future colleague in the Cornell Government Department, to share her research! Well, Mitt, if you really want to know (and just then, people really did want to know), the fact is that “nearly all Americans—96 percent—have relied on the federal government to assist them,” as Suzanne and her collaborator John Sides explained in The New York Times.[3] Some government support programs are less visible than others (hence the title of her book, The Submerged State),[4] but widespread reliance on these programs is the norm in American life, not the exception. In fact, it seems to be one of the few features of today’s world that cuts across party lines: Democrats and Republicans rely on government benefits in nearly equal numbers, and for nearly equal periods. “Instead of dividing us,” Mettler and Sides wrote, “our experiences as both makers and takers ought to bind us in a community of shared sacrifice and mutual support.”[5]

Nor is it remotely fair to dismiss the media as uniformly unsophisticated. My travels in the post-9/11 world have brought me in contact with a great many conscientious and diligent journalists, some of whom developed tremendous expertise, like Jane Mayer at The New Yorker (whose book, The Dark Side was shortlisted for the National Book Award) and Dana Priest at the Washington Post (who won a Pulitzer Prize for her work uncovering the CIA black sites). Some journalists have devoted decades to understanding a particular problem or institution and their insights are more than a match for any academic. Thomas Edsall on inequality, Linda Greenhouse on the Supreme Court, and Alex Kotlowitz on poverty come immediately to mind.

Yet it would hardly be fair to put the entire burden on academics.  Just as we have an obligation to speak, the media has a duty to listen, which means engaging in a more thoughtful process than slotting sound bites into simple categories. If the media decides it will listen only for the familiar sound of the hackneyed, the passé, and the conventional, soon enough that is all it will hear. Sometimes, Mr. Kristof, the story is complicated, and many in the media just can’t deal with it.

“Ideas have consequences,” Richard Weaver famously wrote, but only if they are shared. Academics know that what passes for informed debate is often little more than well-funded prattle.[6] Journalists know that what passes for truth is often nothing but a simplified mock-up of a much more complicated reality. As privileged members of elite communities, we share an obligation to make it better.

Joseph Margulies

Northwestern University School of Law