Collins and Skover’s essay examines Yale Law School Dean Robert Post’s recent book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State (Yale, 2012). Collins and Skover describe and examine Dean Post’s dichotomy between the realm of “democratic legitimation,” where the First Amendment should offer its strongest protections, and the realm of “democratic competence,” where the First Amendment should yield to the findings of knowledgeable experts. Questioning the theoretical premises of Dean Post’s book, they argue that a “harm principle” may better explain much of the First Amendment doctrine that Post attempts to reconcile with his dichotomy. Moreover, they challenge Post’s thesis at a more operational level: if his theory is to have any meaningful staying power, it cannot be oblivious to the obvious – that the academic centers of knowledge are increasingly commercialized. Colleges and universities, once seen as bastions of learning serving the common good, have increasingly transformed into citadels of industry serving the cause of private profit. In this commercialized environment, medical schools produce bio-medical studies unduly influenced by industry; brilliant researchers earn lucrative consulting fees; and distinguished professors take title to industry-endowed chairs. In the face of this, ironically Robert Post’s First Amendment theory may unwittingly protect the research produced by for-profit experts, even though pecuniary influences corrupt the integrity of the centers of knowledge.
David M. Skover & Ronald Collins, The Guardians of Knowledge in the Modern State: Post’s Republic and the First Amendment, 8 U. WASH. L. REV. 369 (2012).