Professing for pay has become a serious problem, with many academics--including a lot of law professors--making huge bucks serving as expert witnesses and affiants in both judicial and legislative proceedings. As I've noted before:
I quit doing consulting and expert witness work six or seven years ago precisely because I too had "an ill-formed intuition" that there was something sleazy about getting paid to put my academic reputation on the line for the specific benefit of private actors. All too often, I felt my name and expertise were being used by people engaged in some form of private rent seeking. Today, my income comes pretty much exclusively from salary and book royalties. So if I take a position (here or elsewhere) it's because I believe it, not because I'm getting paid to say it. That way, the only reason there will ever be "no doubt about ... [my] conclusions" is that a long-time reader will have been able to guess them based on the legal and political positions I've taken in the past. And it will never be "fair to assume that" I am "very well placed to make a lot of money" by having taken that position.
At a bare minimum, the conflict of interest inherent in these situations requires disclosure to one's university employer and to the readers of one's scholarship. In business law, moreover, disclosure of a conflict of interest is not enough. An agent with a conflict of interest must not only disclose the conflict, the agent must get approval from the employer before undertaking the conflicting activity. In my book, that means that before an academic gets paid to "testify in Congress, appear on television news, testify in a legal case or regulatory proceeding, give a speech, or write an opinion article," the university ought to make a determination whether the activity in question passes ethical muster.
So I am pleased to see that the Washington Law Review has adopted a dislosure of interests policy:
For any work accepted for publication, all authors, co-authors, contributors, and student authors must disclose all interests material to the main topic(s) of the contribution, and which could be reasonably seen to significantly influence the author’s views as set out in the work. An interest’s materiality and significance should be assessed from the perspective of a reasonable reader. Covered interests may include professional, business, and institutional affiliations; funding sources; and personal financial holdings. Only interests occurring within the last five years need be disclosed.
All journals should have such a policy.
