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Thursday, June 04, 2009

Scholarship, Relevance, and Division of Labor

I recently read these pungent remarks by Brooklyn's Aaron Twerski in connection with his receipt of the Robert C. McCay Law Professor Award from the Torts and Insurance Section of the ABA.  Twerski observes and endorses criticisms of contemporary legal scholarship as "out of touch" and "lack[ing] relevance to the work" of  judges and lawyers.  He writes,

If interdisciplinary work is to have an impact on the changing face of the law, it must be made accessible to the lawyers and judges who are not schooled in other disciplines.  And the scholars must demonstrate that the theories they set forth have real-world relevance -- that they make a difference.

Relatedly, he criticizes prestigious law reviews for not publishing, and tenure committees for not adequately recognizing, traditional doctrinal scholarship.  In his view, the academy's inattention to doctrinal scholarship has led to plummeting citations to law reviews in judicial opinions.  He contrasts this with high citation counts for the Restatements of Law, and holds out Restatement drafting as an example of relevant work for law professors to do.

I am sympathetic to Twerski's position.  (Indeed, Twerski's remarks are similar enough to some comments I recently delivered in a similar setting that they were linked together in this blog post by Joseph Kearney.)  I do think that law faculties ought to be generating work that is seen as accessible and useful by judges and lawyers.  I also think it unfortunate that direct engagement in important law-reform efforts is so devalued in the academy relative to placing articles in top-twenty law reviews.  Twerski's comments brought to mind a conversation I had a few years ago with a senior colleague at another law school who has managed in his career to be both a prolific scholar and a significant player in several national law-reform initiatives.  After making similar observations to Twerski's about the irrelevance of much legal scholarship, my friend argued that tenure candidates should be evaluated based not only on their track record in generating good ideas, but also on their efforts to get policy-makers to pay attention to their work.  I think there is something to his proposal (although, I should hasten to add, I myself have fallen far short of living up to the example set by my friend in this regard).

Still, I think it is possible to overstate the extent of the academy-practice disconnect.  In particular, care should be exercised in generalizing from what is happening in the top-twenty law reviews and what untenured law professors are doing with their time. 

There is, I think, a rough division of labor in the academy, albeit one that is far from transparent to outsiders.  Let's assume that an important task of the legal academy is to produce insights and information that are useful to judges and lawyers, drawing on both interdisciplinary and traditional doctrinal methodologies.  It would seem a rather elementary proposition that this task is more efficiently performed if the diverse sub-tasks are disaggregated and different individuals and institutions specialize in handling different ones.  And such a division of labor is indeed apparent to me along at least three dimensions.

First, there are the law reviews themselves.  Twerski posits that William Prosser's influential 1960 article "The Assualt upon the Citadel" would not grace the pages of the Yale Law Journal if submitted for publication today.  That may be true, but there are far more venues for publication now than there were in 1960, and there can be no doubt that a good exercise in "case-crunching" like Prosser's would find a respectable home somewhere.  Not surprisingly, the explosion in the number of law reviews has been accompanied by specialization.  This is most vividly apparent in the proliferation of subject-matter-specific journals.  More subtly, though, it's my impression that the "general" journals at some law schools (particularly those outside the top tier) tend to specialize in traditional doctrinal pieces.  Now, perhaps someone has done an empirical study that will prove me wrong.  But, when I do Westlaw searches of the JLR database, I am consistently struck by the different methodologies employed by articles that appear in the journals of top-twenty law schools and the journals of schools ranked, say, 75-125.  I also recall a conversation about acceptance criteria with an articles editor at one of the latter journals: I was told point-blank the journal was only interested in doctrinal pieces and that "theory" articles were rejected out-of-hand.  True, this is only one journal, but it seems consistent with the pattern of articles placement I have observed over the years with friends and colleagues.

Second, there is specialization among law professors.  We all know of law professors whose work is so firmly grounded in some other academic discipline (economics, philosophy, etc.) as to be useless to a reader lacking some expertise in that other discipline.  We also all know of law professors who write only for other law professors -- their work only really engages with the work of other academics, who are themselves only writing for other academics.  But there are others who specialize in spinning out the implications of work in other disciplines and of high theory for practice and doctrine.  (I fancy myself among their number.)  And, yes, I look around myself in the academy, and I still see a great many law professors who specialize in case-crunching.  To be sure, such academics tend not to be at the top of the prestige ladder -- which may or may not be a problem -- but the fact is that one can still make a pretty decent career in this profession (even as a younger scholar) through traditional doctrinal scholarship. 

Third, there is differential specialization even within a single academic's career.  Tenure standards, for better or worse, do push younger scholars to specialize in law-review publication.  But, post-tenure, people tend to head off in a variety of different directions.  The dark side of this, of course, is the occasional tenure-abuser who doesn't do much of anything besides show up to teach his or her classes.  I think everyone should still be writing post-tenure, but people can and do specialize in diverse ways with respect to the type of writing.  Some continue along the law-review track or move into other forms of academy-oriented writing.  But others specialize in writing that is particularly intended to reach lawyer/judge audiences: treatises, some blogs, Restatements, amicus briefs, and so forth.  Moreover -- and I think this is a wonderful feature of tenure -- one can change one's focus periodically across one's career.  Again, there are prestige differences here that may be a matter of concern, but the point is that the orientiation of most untenured scholars to publication in the top-twenty law reviews is not necessarily representative of the type of writing that most tenured professors do.

Are there legitimate concerns about how well legal scholarship is serving the needs of the bench and bar?  I tend to think yes -- but also that perceptions of the academy-practice disconnect are sometimes greater than the reality.

Posted by Michael O'Hear on June 4, 2009 at 05:55 PM | Permalink

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As a general proposition, law professors are much more influential in shaping legal doctrine in civil law countries where judges are relatively less influential, while judges are far more influential in shaping legal doctrine relative to professors in common law countries.

Interestingly, it is also the case that judges in civil law countries typically have little or no experience as attorneys, instead starting off right out of college as traffic judges and working their way up, while civil law professors typically engage in private practice for many years, at least part time, before they are able to support themselves as professors (and often continue part-time law practices even after securing professorial posts).

In contrast, in the U.S., at least, law professors typically have minimal experience as attorneys (indeed experience as a practicing attorney is frequently considered a minus in hiring process), while U.S. judges almost always reach their posts as second careers after managing distinguished careers as attorneys (frequently politically well connected ones) first.

While one can certainly point to elements of civil law practice that give professors an edge (like the doctrine that the Code matters more than precedents), and to elements of common law practice that favor judges (which derives its very name from judge made law), one has to wonder if the degree of connection of the respective professions to the practicing bar, and a result the tendency of the respective professions to be oriented towards "practical" legal scholarship isn't an important factor in relative influence on the law as well.

Posted by: ohwilleke | Jun 5, 2009 2:34:40 AM

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