Last week, I signed an open letter to the Delaware legislature by a group of corporate law academics addressing aspects of Delaware SB 21, which was then pending before the Delaware House.
This week, as you may have seen, 80 out of the ~120 Harvard law school faculty signed a group letter protesting certain Trump administration actions--especially those targeting law firms--as being detrimental to the rule of law.
Predictably, where Harvard leads, the rest of legal education follows. I hear rumors of similar letters in the works at some law schools or among faculty at multiple law schools.
I have been asked to sign some. But I'm not going to do so.
First, however, let me emphasize that I share the signer's concerns about the way the Trump administration is punishing law firms of which the administration disapproves. The use of unilateral executive action is inconsistent with the rule of law. This is true even though I think some of what some of the law firms did to incur Trump's wrath was seriously problematic. In particular, Perkins Coie played a major role in commissioning and disseminating the Steele dossier, which has been widely and effectively discredited. In effect, they committed election fraud. Having said that, I believe Trump should have had the Justice Department investigate to determine if laws were broken rather than unilaterally imposing punishment by executive decree. If the Justice Department concluded laws were broken by the firm, then prosecute the firm. That is how the system is supposed to work. That is how the rule of law is supposed to work.
But I have three reasons for not signing a version of the Harvard letter. First, I share many of the concerns that Harvard law professor Adrian Vermeule identified in an open letter to his students explaining why he didn't sign the Harvard letter:
- "In virtue of its joint signature list, its collective voice, and its claim to portray itself as a consensus statement of those who otherwise disagree, the letter hovers ambiguously between a statement of the faculty as such and a mere aggregation of “individual” views."
- "It speaks only to the “fears” of some, not all, of our students, and threatens to inflame the fears of other students."
- What signal does it send to students "who support the current President and the legal policies of his administration. What exactly are [they] supposed to think when an overwhelming supermajority of the faculty, although purporting to speak “in their individual capacities,” jointly condemn those policies? [They] might be forgiven for wondering if [they] will get a fair shake during [their] time at the law school.
Second, we have just come through a year of massive campus unrest. In response to which, many universities recommitted themselves to the principles announced in the Kalven Report:
The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars. To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community. It is a community but only for the limited, albeit great, purposes of teaching and research. It is not a club, it is not a trade association, it is not a lobby.
Since the university is a community only for these limited and distinctive purposes, it is a community which cannot take collective action on the issues of the day without endangering the conditions for its existence and effectiveness. There is no mechanism by which it can reach a collective position without inhibiting that full freedom of dissent on which it thrives. It cannot insist that all of its members favor a given view of social policy; if it takes collective action, therefore, it does so at the price of censuring any minority who do not agree with the view adopted. In brief, it is a community which cannot resort to majority vote to reach positions on public issues.
The Report thus advocated that, in most cases, there should be "a heavy presumption against the university taking collective action or expressing opinions on the political and social issues of the day, or modifying its corporate activities to foster social or political values, however compelling and appealing they may be." In other words, a norm of institutional neutrality.
Granted, neither the Harvard letter nor the others reportedly circulating purport to speak for the university. Technically, there is no violation of the letter of the principle of institutional neutrality. But surely there is at least a seeming inconsistency between these letters and the spirit of institutional neutrality. As Professor Vemuele observes of the Harvard letter:
In virtue of its joint signature list, its collective voice, and its claim to portray itself as a consensus statement of those who otherwise disagree, the letter hovers ambiguously between a statement of the faculty as such and a mere aggregation of “individual” views.
Finally, and most importantly, as academics, we cultivate specialized knowledge that gives our opinions particular weight within our domains of expertise. When we sign open letters on matters beyond these domains, we risk lending our professional credibility to positions where we lack specialized insight. This practice may inadvertently dilute the value of academic expertise broadly.
Our professional standing results from years of focused study and contribution in specific fields. When we leverage this standing on issues where we possess only general knowledge, we potentially mislead the public about the depth of expert consensus. This creates an ethical tension: should we use the authority granted to us for one purpose to influence discourse in unrelated areas?
This position doesn't require political silence—we remain free to participate as private citizens. Rather, it suggests that our public use of professional credentials should align with the areas where we possess genuine expertise. This approach upholds both intellectual honesty and the distinctive value of academic contribution to public discourse.
So, when it comes to group letters I am going to continue my longstanding policy of sticking to my lane: federal securities and Delaware corporate law.
