Simon Stern: Academic Ethics in a Time of Turmoil

Simon Stern
Associate Professor of Law and English & Co-Director, Centre for Innovation Law & Policy, University of Toronto

Rachel Barney’s professional ethics checklist for teachers and scholars is refreshingly different from the codes of professional ethics that I’m most familiar with, the Rules of Professional Conduct that govern lawyers in any particular jurisdiction. Lawyers’ ethical codes relate primarily to questions about loyalty to the client, avoiding conflicts of interest, truth in advertising, giving an accurate sense of the fee, and taking full responsibility for communications to a client, so as to avoid situations in which an unlicensed person is engaging in the practice of law. If you comb through these codes carefully, you can discern some more inspiring messages about providing work on a pro bono basis, for example, but most of the provisions relate to these more technical issues. Rather than look for analogues in other professional ethics codes, in my comments today I’ll briefly elaborate what I see as some correlates flowing from Professor Barney’s checklist.

One correlate has to do with the virtues of intransigence. It’s often thought that one of the primary academic virtues is the intellectual virtue of flexibility, expressed through an attitude of open-mindedness. Open-mindedness is certainly a great virtue, and as the anti-authoritarian code suggests, it’s a particularly important quality in dealing with students (see #10). But when academics are asked to comment on political policies, or legal decisions, or governmental action, and are asked to engage with commentators who make it their business to defend these policies, flexibility is usually a mistake, because it allows these interlocutors, who rarely model the practice of open-mindedness themselves, to seize the opportunity and attempt to set a new baseline as the floor for any further discussion or inquiry. In these discussions, someone who seeks to remain flexible serves inadvertently to allow for a one-way ratchet in the direction of the person who remains inflexible. So I think that intransigence, stubbornness, and obduracy are also attitudes worth adopting, and they have a place in a code of academic ethics. Again, I see this as already implicit in the checklist—such as the sixth provision, which speaks to the importance of “presenting the state of research in my field accurately,” regardless of what the government or apologists for the government want to hear, and the importance of “challeng[ing] others when they lie.”

Another correlate has to do with value of persistence—that is, of persistently drawing attention to what you see as important, despite its lack of glamor. It’s already become evident that the incoming administration particularly enjoys creating media events that revolve around celebrities. When actors, comics, and other entertainers speak out against governmental policies, a predictable round of tweets, editorials, and Sunday morning squawk ensues. In an age when the study of popular culture has become such a significant part of academic inquiry, there’s a temptation to make these events themselves a focus of research and analysis, with the result that these diversionary tactics serve precisely the purpose they’re meant to serve—namely, to keep people from attending to less glamorous questions, such as the qualifications and backgrounds of various appointees to political offices. And as the incoming administration continues to abandon norms that previous administrations have observed, there will doubtless be numerous protests from popular cultural figures, and numerous efforts to divert attention in precisely the same way. It’s no one’s job to tell other scholars what they ought to be studying, but it’s important to recognize these diversionary tactics for what they are, and to persist in speaking and writing on the questions that remain pointedly unanswered while the tweets and the twitterati are attempting to monopolize public attention.

I’ll close with a brief analogy. One of the most successful means of operationalizing the US Freedom of Information Act (FOIA) has come from law school clinics that have the patience to file repeated FOIA requests and to insist on more disclosure when the initial results are incomplete. These clinics have modeled the relatively prosaic virtues that I’ve been describing, and as teachers and academics, we would do well to emulate them.