Jessica Litman, the John F. Nickoll Professor of Law at the University of Michigan, has released a transcript of a talk she gave at the AALS mid-year meetings.  The talk, posted on SSRN, questions the role copyright partisanship has played in copyright scholarship, especially among nontenured professors. Says Litman:

I don’t know whether untenured scholars feel some pressure to declare allegiance to (or independence from) some side in this dispute for its own sake, but I wouldn’t be surprised if they did – whether because their senior colleague has picked a side and they fear that he or she will evaluate their work in part based on its recommendations, or because they believe that being perceived to be on a particular side is more likely to generate invitations to speak at conferences and participate in symposia.

Don’t get me wrong: there are people out there who argue that advocacy makes bad scholarship, but I am not one of them. Some of the most illuminating scholarship I’ve read has been advocacy. These days, I find myself going back again and again to the work of L. Ray Patterson, whose later work was almost entirely advocacy. 14 I gave a bunch of Ray’s arguments short shrift when I read them the first time because they were so nakedly partisan.15 A number of years later, though, I’m concluding that there was an enormous reserve of truth underlying that advocacy. 16

Indeed, the kind of article I find it most difficult to respect is the piece that casts itself, implausibly, as the sole occupant of the middle ground, usually by mischaracterizing or caricaturing the scholarship it paints as extremist on either side. So, I’m not suggesting that we’d all write better articles if we started to think non-partisan thoughts. My point is a little different: I think that knowing in advance the conclusion you need to reach – whatever it is–, while the bread and butter of law practice, usually results in legal scholarship that may be articulate and persuasive but isn’t very interesting, and doesn’t in fact advance the ball much. I think the sense that we’re in the midst of a copyright war has increased the incidence of work written to flog a familiar point of view, and has seemed to decrease scholarly risk-taking, especially if the risk might result in writing something that would give aid and comfort to the wrong side.