Academics’ Work on Court Cases Is Common and Often Uncontroversial. Now It’s Under the Microscope.

As of Tuesday, administrators at the University of Florida continue to face criticism over reports that they denied the requests of three faculty members to act as expert witnesses in a lawsuit over new voting restrictions in Florida. “As UF is a state actor, litigation against the state is adverse to UF’s interests,” the university’s assistant vice president for conflicts of interest wrote to two of the faculty members, according to a legal filing.

The Florida case brings attention to a common side gig for professors: legal and other consulting, sometimes in the form of expert testimony. In one high-profile recent example, a House of Representatives committee considering impeachment charges against former President Donald Trump heard testimony from four law-school professors.

At its best, paid and unpaid consulting helps bring cutting-edge scholarship to bear on real-life cases, scholars say. Such outside work can bring up questions of conflict of interest, and there are gaps in academics’ understanding of this facet of scholarly life. However, testifying against the state isn’t a legitimate conflict, The Chronicle’s interviewees said.

“If academic freedom means anything, it grants faculty the right to stand up and share their expertise, even when that’s uncomfortable to those in power,” said Thomas P. Lyon, an economist at the University of Michigan who was part of a conference on undue influence in his field in 2019. “The whole point of academic freedom is to prevent those in power from squelching academic research and expression thereof.”

Nor is the mere fact of payment necessarily a problem. In later statements, leaders at the University of Florida have said the three political-science professors, Sharon D. Wright Austin, Michael P. McDonald, and Daniel A. Smith, are free to testify, but can’t take payment. However, earning fairly high fees for outside legal work is not an uncommon practice in academe, and the money doesn’t appear to be a genuine conflict in the Florida case, two scholars said.

Elizabeth Oldmixon is a professor of political science at the University of North Texas who has worked and trained people on the university’s outside-activity policy. At UNT, she said: “A conflict of interest occurs when you have a relationship that affects the way you’re going to do your job, so like a financial relationship that affects the decisions you make.” She gave the example of owning a business that sells to the university. “It has nothing to do with creating a conflict of interest for the university vis-à-vis elected officials.”

“There isn’t a single well-funded interest that stands to make a lot of money by having a lot of people vote,” Lyon said, “so I wouldn’t be very worried about having those folks pay an expert.”

There doesn’t appear to be much data on how frequently professors are paid to be experts in legal trials. Neither Oldmixon, who is vice president of the Southern Political Science Association, nor Steven R. Smith, executive director of the American Political Science Association, knew of any numbers about academic political scientists. Both said the practice isn’t uncommon in their field.

In March 2020, two economists published a survey in the journal Economic Inquiry about outside legal work among academic economists. About two-thirds of surveyed economics professors have done some legal consulting in their careers. Forty percent had done so in the last five years. Their median pay was $200 an hour.

Someone working on a high-profile antitrust case might earn even more than that, on the order of $1,000 an hour, said Joni Hersch, one of the co-authors and a professor of law and economics at Vanderbilt University. She wasn’t bothered by these high rates, which, on an hourly basis, exceed most professors’ university salaries. They are on par with what the lawyers in the cases earn, she said.

Almost no one The Chronicle spoke with had heard of a public university restricting faculty members from speaking against the state. But there was one similar case from two decades ago, which The Chronicle covered. A rider on Texas’s 1998-99 appropriations bill withheld the salary and benefits of any state employee who “is retained or serves as an expert witness or consultant in litigation against the state.”

At the time, Robert Hoover was a marketing professor at Texas A&M University at Corpus Christi. He had been retained by tobacco companies in a suit that the state was bringing against them. They wanted him to speak on his research about how much advertising can make people smoke. (“We are not all Silly Putty in the hands of Madison Avenue,” is how Hoover summarized it.)

When he got a call from the Texas A&M University System’s general counsel saying Hoover was in violation of the new law, he decided to fight back. He sued. Mainstream academe is generally anti-tobacco — many schools of public health refuse to take tobacco money, and the thrust of much research on the industry is negative. But the principles of academic freedom apply regardless of politics and content, experts like Lyon and Oldmixon said, when told about Hoover’s case.

Hoover remembers attending a hearing that took about 20 minutes, it was that straightforward. The initial court decision, in Hoover’s favor, would eventually be upheld and then expanded on.

Stuart M. Benjamin, a First Amendment scholar at Duke Law, thought that the University of Florida would be similarly hard-pressed to make a case for its policy. “I would not want to be the lawyer for the University of Florida writing the brief defending this,” he said.

When considering the situation in Florida, Hoover said: “It is an attempt on the part of somebody to prevent people, who have studied in significant depth an issue, to not be allowed to discuss that, and that is patently wrong.”