Shari Motro (Richmond), Scholarship Against Desire, 27 Yale J.L. & Human. 115 (2015):
How do ego-driven fears and ambitions influence intellectual life in our law schools? How do law review placements, promotion applications, and faculty workshops skew the questions we law professors ask and the conclusions we reach? In my own case, they led me to frame my last project before tenure — which at its heart is about intimate relationships — through a tax policy analysis. Instead of writing about “sex against desire” I wrote about “preglimony.” [Preglimony, 63 Stan. L. Rev. 647 (2011).] I stand behind the result, but the exercise also left me feeling incomplete. This article reflects on the price of strategically motivated scholarship and articulates a vision for what a more authentic ethos may bring to students, to the profession, and to the world we help shape.
As an aspiring law teacher on the academic job market and then as an assistant professor on the tenure track, I quickly learned that I would stand a better chance of being taken seriously if I talked law-and-economics rather than law-and-literature, if I asked questions I could solve rather than ones that merely invited a conversation, if I wrote about tax law rather than feminist theory. No one spelled this out explicitly; my institution didn’t tell me what to write about and it supported many of my non-traditional experiments. But it is part of a world, a world in which law review placement is the coin of the realm. I wanted to do a good job, so I wrote in the mode most valued in this world.
In the beginning, making these choices didn’t feel like a compromise. I enjoyed solving puzzles. I enjoyed writing about tax. And I enjoyed the benefits that came along with publishing in top law reviews.
Then I made tenure, and something shifted. I began to see more clearly the subtle ways in which external pressures and incentives had skewed my work. I also discovered that despite the unparalleled security that came with my new title, these influences didn’t disappear. I understood the deal: If I continued to produce within the mold that got me tenure I could stay in the game—I could continue to attract prestigious speaking invitations, queries from hiring committees, and rising-star-type awards. If I tried something new, I risked squandering the platform I’d worked so hard to build. I would dilute my brand.
These personal considerations paralleled institutional ones. If I kept hitting top reviews, my school would be better positioned to continue to rise in the rankings and I would continue to enjoy the warm inner glow that comes when we score for the home team. If I went alternative, what value would I bring? Could I justify pursuing my passion as anything other than selfish?
When I began this article, I didn’t know the answer to these questions. Indeed, spending time exploring them seemed indulgent in itself, and I tried, multiple times, to abandon this project. Over the course of the writing, however, I’ve come to believe that legal academics are not only justified in investing in the work we love; we have a responsibility to do so.
Teacher-scholars have a responsibility to follow our deepest sense of calling because when we give up or delay indefinitely we contribute to the cynicism that plagues many of our students. Former dean of Yale Law School Anthony Kronman believes that students grow cynical through their encounter with advocacy—a discipline that views “truth as, at most, an instrumental good.” Cynicism is dangerous, Kronman believes, because it breeds callousness. Why do we, as a society, link the training of lawyers with the academic study of law? Why allow intellectuals to shape the next generation of counselors? Because intellectuals value truth as an end in itself, and truth matters—to our students, and ultimately, to our profession. To be a lawyer is to be entrusted with nothing less than the survival of our civilization. A less cynical, more honest bar is more likely to help us step away from the brink of self-destruction; a less cynical bar is more likely to steward us toward the “more beautiful world our hearts know is possible.” When law professors allow instrumental, egoic considerations to drive our scholarship, we fail to honor our mission. Instead of modeling integrity, we model something quite dark for our students. We model fear.
The compromised academic also jeopardizes the intellectual mission of the university. Truly creative ideas are often dismissed as wild or impractical. This is one of the reasons we give people tenure. Those of us who have it are duty-bound to use it to explore and deliver the ideas that come through us, regardless of the accolades they may or may not bring our way.
And inauthenticity in scholarship undermines community. When idealistic scholars—like other minorities—withhold or dilute their radical visions, they squander an opportunity to chip away at the isolation that plagues other colleagues at the margins. When eccentrics try to blend in they squander the chance to demonstrate that we are not the problem, that the droves of law students, lawyers, and law professors who crave something else might have something valuable to say to the profession, that our choices are not limited to assimilating or slinking away in shame.
There is another way, there is another story—a story in which we not only belong, we’re critical. True diversity requires not only that insiders accept “others” as guests; it requires an openness to the possibility that change can enrich everybody, an openness to a different kind of conversation. It’s up to those of us who think differently to begin this conversation. Or rather, it’s up to us to continue the conversation that our own heroes began for us, a conversation that at its heart is about broadening law’s tent.
The scholarship I admire most reminds us that the law is always a work in progress, that every lawyer is both reader and co-author. It deepens our relationship with the law as something alive, something that is not “out there” ruling over our small insignificant lives, but is a part of us, something that each of us can not only tweak but fundamentally reimagine. It encourages us to position legal rules and the clever ways we can manipulate them within a context, a context each of us must discern and choose. Great scholarship models a sense of purpose that stems from a different source than the drive toward personal advancement; it models courage.
Alongside the drive to make legal education more responsive to market demands there is a parallel movement toward making it more responsive to human demands. Razor sharp analysis is important, but if not combined with a tolerance for uncertainty, with humility in the face of forces we cannot understand or control, with a type of intelligence that cannot be grasped through intellectual argumentation alone, it can be dangerous. People are waking up to the devastating effects of a legal paradigm rooted exclusively in adversarial, dialectic reasoning. People are dreaming of a new chapter in which a juris doctor is a degree that prepares us to diagnose and treat the illnesses of society, in which the law is a healing profession.
Like Kierkegaard’s knight of faith hiding within the body of a tax collector,14 some of these dreamers are conventional lawyers with conventional law practices who bring what good lawyers always brought to the table—a knack for details and logic as well as Atticus Finch-like emotional intelligence, integrity, and compassion. Others are pioneers of alternative lawyering streams like restorative justice, transformative mediation, integrative lawyering, collaborative law, comprehensive law, mindful lawyering, and the Project for Integrating Spirituality, Law, and Politics. Some are academics who see teaching and writing not only as a career, but as a calling. Champions of the turn can also be found on the bench. ...
This article uses my own experience navigating the law review placement process to reflect on the dynamics that shape intellectual life at American law schools. My recent work focuses on the legal relationship between unmarried lovers who conceive. At its heart, it is about the law’s role in shaping the precursor to pregnancy—heterosexual sex. When I began researching this topic what I was most curious about was how law and culture might conspire to foster connections that are more loving and less violent, more authentic and less alienated. Pursuing this topic—which would entail exploring big existential questions to which I still don’t have clear answers—seemed risky before tenure.
Part I recounts the turn I took instead: a proposal for incentivizing and rewarding “preglimony” through tax reform. Currently, ex-spouses get a deduction when they pay alimony. In my last article before tenure, I argued that the same treatment should extend to men who support their pregnant lovers.
Part II turns back the clock and revisits the lead I would have followed had I not been focused on producing a law review article within the conventional mold. This “road not traveled” explores a category of sex at the margins of mainstream definitions of what counts as “law”: sex that is consensual but not mutually desired, “sex against desire.”
Why describe the thread I abandoned here? Why include so much detail about a category of sex at the margins of what generally counts as “law” in a paper about authenticity in legal scholarship? Because the personal is political. Because like intimate partners who agree to sex they don’t truly desire, professors who adhere to conventions that don’t serve their deepest relationship with truth engage in a compromise that ultimately hurts not only them. It hurts students by breeding cynicism and depression. It hurts the practice of law by producing foot soldiers instead of visionary stewards. Ultimately, our compromise hurts all of society. Part III concludes with my vision of what a more authentic ethos might bring to faculty and students, to the profession, and to the world we help shape.