June 4, 2007 · Lessig
I am a law professor. I am paid to teach and write in fields that interest me. Never is my academic research directed by anyone other than I. I am not required to teach any particular course; I am never required or even asked by anyone with authority over me to write about a particular subject or question. I am in this important sense a free laborer.
I also get paid for some of my writing. I write books that are sold commercially. Three (and I hope soon all) of my books are also available freely in electronic form. I have been commissioned to write articles for magazines. But in all cases, while I may contract about the subject matter I will address, I never contract about the substance.
I have (though rarely) been paid to consult on matters related to my work. If I have, I conform my behavior to the NC Principle articulated below.
I am sometimes paid to speak. If I am, I will contract as to subject matter (e.g., whether the speech is about innovation, or copyright, or privacy, etc.). I do not contract as to substance. In addition to an honorarium, I also accept payment to cover travel expenses.
I am not compensated for my work with nonprofits.
I serve on no commercial boards. I don’t take stock-options to serve on boards or advisory boards.
It is a special privilege that I have a job that permits me to say just what I believe, and not what I’m paid to say. That freedom used to be the norm among professionals. It is less and less the norm today. Lawyers at one time had a professional ethic that permitted them to say what they believe. Now the concept of “business conflicts” — meaning, a conflict with the commercial interests of actual or potential clients — silences many from saying what they believe. Doctors too are hired into jobs where they are not allowed to discuss certain medical procedures (See, e.g., Rust v. Sullivan). Researchers at “think tanks” learn who the funders are as a first step to deciding what questions will be pursued. And finally, and most obviously, the same is true of politicians: The constant need to raise money just to keep their job drives them to develop a sixth sense about what sorts of statements (whether true or not) will cost them fundraising dollars.
With perhaps one exception (politicians), no one forces professionals into this compromise. (The exception is because I don’t see how you survive in politics, as the system is, without this compromise, unless you are insanely rich.) We choose the values we live by ourselves. And as the freedom I have to say what I believe is the most important part of my job to me, I have chosen a set of principles that limit any link between money and the views I express.
I call these principles “non-corruption” principles because I believe that behavior inconsistent with these principles, at least among professionals, is a kind of corruption. Obviously, I don’t mean “corruption” in the crudest sense. Everyone would agree that it is wrong for a global warming scientist to say to Exxon, “if you pay me $50,000, I’ll write an article criticizing global warming.” That is not the sort of “corruption” I am talking about.
I mean instead “corruption” in a more subtle sense. We all understand that subtle sense when we look at politicians. We don’t recognize it enough when we think about lawyers, doctors, scientists, and professors.
I want to increase this recognition, even at the risk of indirectly calling some of my friends “corrupt.” Norms are uncertain here. I hope they change. But until they change, we should not condemn those with differing views. We should engage them. I intend this to be the beginning of that engagement.
So, the NC principle:
The simple version is just this: I don’t shill for anyone.
The more precise version is this: I never recommend as policy a position that I have been paid, either directly or indirectly, to recommend.
The precise version need to be precisely specified, but much can be understood from its motivation: “Corruption” in my view is the subtle pressure to take views or positions because of the financial reward they will bring you. “Subtle” in the sense that one’s often not even aware of the influence. (This is true, I think, of most politicians.) The rule is thus designed to avoid even that subtle force.
So: “I never recommend as policy a position“: This is meant to distinguish work as a lawyer from work as an advocate. I don’t do legal work for money. But everyone understands that when a lawyer speaks for his client, he speaks for his client. The corruption I am targeting is a lawyer or academic speaking not for a client, but presumptively, for the truth. And “recommend” means in any public forum — so an op-ed, testimony, or a lecture.
“that I have been paid directly“: This is the easy part of the principle. “Directly” means that I’ve received cash or other such compensation, or that I receive research support, or funding that I otherwise wouldn’t have been entitled to.
“or indirectly“: This is a harder line to draw in general. The boundaries for me, however, seem pretty clear. In my view, I would be “indirectly” benefited if an institution I was responsible for got a significant benefit from an easily identified interest.
So, for example, I do no fundraising for my law school. My position, and the Center I run there, depends in no way upon my raising funds for either. Further, the commitment I have from my dean to support the Center is independent of any fundraising. As Dean Sullivan told me when she recruited me, “fundraising is my problem. Yours is to do the work.”
Thus, if you give a substantial amount of money to Stanford, you don’t, in my view, indirectly benefit me — because you have not made my life any different from how it was before you gave that money. (Indeed, given the hassle that usually runs with such gifts, you’ve likely made my life more difficult.)
Creative Commons presents a different question. A substantial contribution to Creative Commons — an entity which, as its CEO, I am responsible for — would, consistent with the NC principle, limit my ability to “recommend as policy a position” that was directly connected to the contributing entity.
So far, beyond the foundation grants CC has received, there have been two such “substantial” contributions to Creative Commons. With neither would I ever “recommend as policy a position” that benefited either — even if I believed, independently, that the position was correct. This doesn’t mean I wouldn’t help such people, or advise them. It simply means I would not publicly say something about their position, after such support was received.
I acknowledge one might well quibble with the “substantial” qualification here. Why not “any” rather than “substantial”? That may be the right position, at least ultimately. But as I view the matter now, the gifts beyond these two are so small as a proportion of CC’s budget that they don’t meaningfully change my work for CC at all.
Some would say this principle is too strict. That a simpler rule — indeed the rule that governs in most of these contexts — simply requires disclosure.
I don’t agree with the disclosure principle. In my view, it is too weak. The best evidence that it is too weak is the United States Congress. All know, or can know, who gives what to whom. That hasn’t chilled in the least the kind of corruption that I am targeting here. More generally: if everyone plays this kind of corruption game, then disclosure has no effect in stopping the corruption I am targeting. Thus, in my view, it is not enough to say that “Exxon funded this research.” In my view, Exxon should not be directly funding an academic to do research benefiting Exxon in a policy dispute.
(There is a difficult line here that turns upon practice. When I was at Chicago, professors received summer research grants. Those were awarded by the Dean. To make the funders happy, the professor would write “this research was supported by a grant by XXX.” But never was the money given in light of the work, and most of the time, it wasn’t till after you had finished something that you discovered who had “funded” the work. I don’t mean to be targeting this sort of behavior at all. Again, the funding the professor received was independent of the grant by XXX.)
The NC principle is about money. It is not about any other influence. Thus, if you’re nice to me, no doubt, I’ll be nice to you. If you’re respectful, I’ll be respectful back. If you flatter me, I doubt I could resist flattering you in return. If you push causes I believe in, I will likely push your work as well. These forms of influence are not within the scope of the NC principle because none of them involve money. I mean the NC principle only to be about removing the influence of money from the work of a professional. I don’t think there’s any need to adopt a rule to remove these other influences.
Why is money different from flattery, or being a liberal? Good question. Lots of obvious reasons. (For example, think about how hard these other “corruption principles” would be to implement: “I can’t support X because he supports the Democratic party, as I do.” “I can’t testify in favor of Y because its President said something nice about me.” Talk about perverse incentives…)
Someday I hope time will give me the opportunity to say more about why in depth. But for now, I mean only to specify the scope of my principle: It is a principle about isolating one form of influence from the work that I (and I hope my colleagues) do. We (in legal academics, and imho) get paid enough not to have to worry about selling testimony.
Thus, one friend wrote me with disappointment about something I wrote that could be viewed as a favor to someone else. So long as money is not involved, I’m all for this kind of favor. We should be doing favors for people we agree with all the time. Especially people on our side of the debate: we need to become at least as good as the other side in cultivating a community of support.
If you believe I am following my principle, then you can still believe I am biased because I’m a liberal, or wrong because I’m an idiot, or overly attentive because I’m easily flattered, or under-attentive because I punish people who behave badly. All that the NC principle promises is that I am not saying what I am saying because of money.
I have been living these principles for many years. So my purpose here is not to announce any new policy. You can agree or disagree with the principles. You can believe them too strict, or not strict enough. They are significantly stricter than anything within the academy just now. No doubt, many may believe they are way too strict.
But whether you believe them too strict, or not strict enough, I would encourage you to engage them. Consistent with my NC principle, I will reward kindness and insight with at least kindness. I will ignore people whose argument style stopped developing in high school. But because this is an issue I very much want to continue to work on, the only thing for sure is I won’t accept money to consult around it. (And of course, there are millions throwing hundreds of millions at me to do this, so this is a REAL sacrifice.)
Finally, and again, I don’t offer this as a tool to condemn. I offer it because I believe this is a conversation we all should have.