Paul L. Caron

Tuesday, March 24, 2009

Is Legal Scholarship Dead?

Pierre Schlag (Colorado), Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the State of the Art), 97 Geo. L.J. 803 (2009):

American legal scholarship today is dead—totally dead, deader than at any time in the past thirty years. It is more dead, vastly and exponentially more dead, than critical legal studies was ever dead during its most dead period. ...

Now it’s true that we’re producing at a vastly faster rate than ever before. More papers. More conferences. More panels. More symposia. More blogs. And faster and faster too. More and faster. Over seven thousand American legal academics—and all of them cranking out those talks and papers as fast as possible. The speed of legal scholarship is just off the charts right now.

And yet, nothing’s happening.

How could this possibly be? The short answer is that, all around us, there is more, vastly more, of nothing happening than ever before.

Daniel R. Ortiz (Virginia), Get a LIfe?, 97 Geo. L.J. 837 (2009):

What a depressing prospect! Many years short of retirement, I’m condemned, Schlag says, to generate necessarily (but, I hope, excellently) mediocre “legally cognizable material” at an ever-increasing pace. Like a hamster spinning on a wheel, my only hope is that my audience—and that’s probably only my dean—will applaud my display of energy as I move ever more quickly nowhere.

Richard A. Posner (7th Circuit; Chicago), The State of Legal Scholarship Today (A Comment on Schlag), 97 Geo. L.J. 845 (2009):

Might it not be a good idea for law schools, just as they have separate clinical departments, with clinical faculty whose credentials, job descriptions, and career tracks differ substantially from those of the “regular” faculty, to have a department of legal analysis? The members would be legal doctrinalists, and their salaries would probably exceed those of the other professors in the law school (because lucrative private practice would be a close substitute for what they would be doing in law school, which is not the case for more “academic” law professors), but they would have somewhat higher teaching loads and the school would have different and lower expectations with regard to their scholarly publication. The practice of law has become a team effort—so has medicine— so why not legal education? Already regular law professors and clinical law professors work side by side in general amity. Why not have a third group of specialists, the legal analysts, working alongside them?

Richard H. Weisberg (Cardozo), Daniel Arises: Notes (Such as 30 and 31) from the Schlagaground, 97 Geo. L.J. 857 (2009):

Before you orphaned me, I thought law professors would guide me towards some notion or another of justice. This fatuous idea in part came from those “popular understandings” you so deride. Most folks interested in medicine want to cure people. Most folks interested in the law want to do justice. (You’re right; they also might want to make money in the process or from time to time.) My upbringing inspired me to think our legal system would do more than create the unholy mess it is in now, a system currently uninterested in economic disparities, outsiders, history, the Constitution, etc. ...

This privilege—in a far more modest form—I wanted for myself when I entered law school: a small piece of the pie, a chance to add to what was there, to improve the mix, to refine the recipe for justice. I wouldn’t have cared if your lesson to me after awhile was that I would be no Cardozo. Or even that you thought there were better ingredients than those he provided. Instead, the pie disappeared under your tutelage.

Robin West (Georgetown), A Reply to Pierre, 97 Geo. L.J. 865 (2009):

Legal scholarship, Pierre Schlag tells us, is dead. Live scholarship, by contrast to the stuff we produce, aims for truths that are both important and hard to uncover—the latter is what requires discipline, and the former distinguishes scholarship from ordinary observation. The “life” in lively scholarship lies partly in the quest but also in the substantial payoff: growth, when we have been convinced of something important and previously unknown; change, when we see the world differently because of it; restoration, when old truths are revalidated; breath itself, when new insights pry open up those proverbial doors of perception, and let in the cosmos. Legal scholarship, Pierre charges, has none of this. It is dead, dead, dead.

Dead scholarship, of which legal scholarship is an example, also aims at truth—dead scholarship is scholarship, after all—but the truths are banal. They don’t rejuvenate; they open no pathways. ...

Legal scholarship is dead, then, because it’s spam scholarship. Why? Pierre’s explanation—his autopsy report so to speak—is that legal scholarship made the fatal mistake (way back when) of adopting, basically, the judicial opinion (and the lawyer’s brief) as its essential form. And the judicial opinion, for better or worse, aims quite intentionally for spam. Legal scholarship aims to imitate adjudication. And adjudication aims for spam-like truths. Ergo—legal scholarship does likewise

Is this right? The first part of Pierre’s argument—that adjudication aims for spam-like truths—is entirely right, I think, and by no means new, although the metaphor is, as well as the condemnatory tone. ...

Assuming Pierre is right about adjudication, is he right about the legal scholarship that imitates it? I think his account is mostly (but not entirely) right, although I don’t think the situation is quite so dire. I also think, though, that he is wrong in the cure he implicitly proposes.

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The most interesting comment on ever heard on tax (and implicitly legal) scholarship was from a professor who noted that the majority of law professors were hired to teach specific subjects rather than write about them. They then produced scholarship that nobody particularly wanted or needed because, well, that's what law professors do. Given this reality, I think Posner's suggestion makes some sense. But I would broaden to say that a substantial percentage of law professors would do something outside of scholarship--clinics, law reform, what have you--leaving the scholarly writing to those who really wanted to do it. This is already happening in the academy, but largely by the ruse of substituting non-tenure track (and primarily nonscholary) faculty for the more traditional variety: why not do it openly?

Posted by: mike livingston | Mar 24, 2009 8:39:25 AM