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Thursday, June 16, 2011

Who Should be the Audience for Legal Scholarship?

“Modest” is not the first word that comes to most people’s minds when asked to describe me.  (“Pasty” and “bald” are popular choices.)  That’s pretty common for law professors, in my experience.   (That is, the self-confidence, not the baldness.)  Nonetheless, this post is in praise of the modesty of contemporary legal scholarship.

Many practitioners, from C.J. Roberts on down, have been heard to complain (read the comments!) about the “irrelevance” of recent legal scholarship to their work.  These complaints are, in a sense, factually wrong.  There is tons of doctrinal scholarship being produced today, much of it quite fine.  But to find it, you probably have to read a journal with “of” in the title, or a general-interest journal from a law school with a relatively low U.S. news ranking.  So really, the complaint is that gate-keepers at the most selective journals do not value the same things practitioners do.  It’s not an invalid complaint: being able to rely (at least to some extent) on gate-keepers to screen for quality is highly valuable for time-constrained actors.      

Perhaps, then, there is a need for some signal of quality for highly practical scholarship.  (The ABA’s journals seem a useful step in that direction.)  I nonetheless want to defend the status quo in which such scholarship is not highly prized by the academy, and therefore not prized by the gate-keepers who have internalized our norms. 

In short, I believe doctrinal scholarship should be viewed with some wariness because, in speaking directly to legal policy makers, it partakes of a perilous immodesty.  Purely theoretical scholarship, on the other hand, by whispering in the ears of other ivory-tower dwellers, is better suited to our limited capacity as scholars.  Lots more after the jump.

My basic assumption is that law is policy, and choices of legal doctrine have consequences.  Much of the modern intellectual trend away from judge-made law rests on those claims.   (Though I don’t want to discount the role of ideological efforts to entrench the politically powerful against the threat of litigation, and to diminish the influence of trial lawyers.)  While courts have strengths, the fact remains that their judgments typically represent at best an agreement among a handful of smart people.  And that’s a problem when the world is as complex as it is.  

We could say the same thing about scholarship.  Brandeis was brilliant, but on and off the bench he missed a lot of important points, too.  (E.g., about that laboratories of democracy business).  For any one of us to claim that we’re clearly right about what the law “is” (or, implicitly, should be) just strikes me as overwhelmingly likely to be wrong, or at least perilously incomplete, most of the time.  Yet it isn’t clear that this limitation is apparent to policy makers who consume “doctrinal” scholarship – the scholarship that speaks directly to lawmakers and makes claims about legal policy should be.

“Theoretical” scholarship, then – scholarship that speaks to other scholars, and not to a lay audience – is insular, but appropriately so.  That is the modest course.  (It is also is more consistent with a modern understanding of statistical inference.)  We debate with each other because that is how we move closer to a fully-informed truth, or at least to a position we can agree is most defensible given the limited information available to us.  Doctrine emerges at the end of this process, in spinning out the consequences of consensus theoretical positions for discrete applications.  We do what judges should do, would do, if they had endless time.  (I leave for another day the question of whether the optimal institutional design follows the u.s. in joining theorizing to teaching, but separating out judging and lawmaking.)    

Of course, sometimes crises demand immediate answers.  Sometimes the best guess is better than doing nothing.  Sometimes doing nothing leaves in place an existing baseline that is clearly inferior to most other options.  But given the stickiness and path dependence of legal choices, in particular, it is often wiser to measure twice and cut once.                         

To be clear, “doctrine” and “theory” as I’ve sketched them are points at the ends of a continuum.  Nearly all legal scholarship is considerably more “practical” or doctrinal than the median of any other major academic discipline.  In many ways, I see that as the emerging role for legal scholarship: moving foundational ideas from elsewhere in the academy closer towards some possible real-world implementation.  That “translational” task suits our skills as explainers, negotiators, institution-builders, and problem-solvers.  But even translators should be cautious.

Posted by BDG on June 16, 2011 at 02:47 PM in Law Review Review | Permalink

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What are the chances that law profs defending the status quo, parsing words, and explaining to practitioners that they're wrong is likely to make lawyers and judges read their articles?

Posted by: shg | Jun 16, 2011 3:19:00 PM

Precisely. Also, professors of medicine should publish solely on matters having nothing to do with life and death, professors of business should avoid anything bearing on the markets or the operation of businesses, and theologians should avoid anything relating to the soul. The stakes are too high, and the risk of error considerable. Our institutions and students should pay us a bounty for doing whatever work keeps us out of harm's way.

Posted by: Anon3 | Jun 16, 2011 6:20:15 PM

"So really, the complaint is that gate-keepers at the most selective journals do not value the same things practitioners do. It’s not an invalid complaint: being able to rely (at least to some extent) on gate-keepers to screen for quality is highly valuable for time-constrained actors.
...
For any one of us to claim that we’re clearly right about what the law “is” (or, implicitly, should be) just strikes me as overwhelmingly likely to be wrong, or at least perilously incomplete, most of the time. Yet it isn’t clear that this limitation is apparent to policy makers who consume “doctrinal” scholarship – the scholarship that speaks directly to lawmakers and makes claims about legal policy should be."

Seems to be something of a missing gap in logic here. All lawmakers may well be practitioners, but the vast majority of practitioners are not lawmakers.

So while it might be presumptuous to expect to influence Judges and Legislators directly, it would be quite helpful to provide useful analytical material for the 99% of your students who did not go on to become lawmakers. You know those people who your schools are constantly begging for money?

Posted by: Brad | Jun 16, 2011 6:43:42 PM

These are difficult issues; no one should claim that only narrowly doctrinal scholarship has value. But elevating theoretical over doctrinal scholarship has its own perils.

At the outset, I have serious doubts about whether those whose orientation is primarily theoretical are qualified to teach law -- doubts I have expressed in a recent article. http://ssrn.com/abstract=1630574 But even putting the interests of students aside for a moment, if one starts with BDG's "basic assumption" that "law is policy," the problem, of course, is that legal scholars are not trained in "policy"; their training is in law. Some have multiple degrees, to be sure, but that is no guarantee that they would be highly regarded as scholars in the non-law field in which they are not teaching, and in which they are not subject to professional scholarly norms such as peer review and promotion and tenure review by experts in the field. If we wind up with a bunch of J.D.'s writing "policy" scholarship, whether "modest" or not, it seems to me that we are likely to get a lot of bad "policy" scholarship.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jun 16, 2011 8:10:41 PM

These comments, and Gio's post, I think miss my main points. I'm not arguing that legal scholarship should be useless. That would of course be stupid. Note, for example, that I claim that we do what judges would do if they had time, and that the end product of good scholarship is doctrine. Brandon Garrett's fantastic work will I hope be an example of that process. Basic science research might be a good analogy (which, by the way, is much more highly prized by the medical academic community than "clinical" investigations).

Yes, academia does ask for donations. We have to. Discerning past and near-future doctrine has commercial value. One doesn't have to ask for a donation to support a treatise; one sells it or uses it to build a professional reputation that attracts clients. That is why "basic science" work is more inherently scholarly -- because, as a public good in the economic sense, it could not thrive anywhere else in society but is still an important contributor to society's long-term well-being.

Finally, as I did try to make clear, the question of whether scholars who eschew doctrine are a good choice for teaching future lawyers is a complicated question (though as I think I've already hinted, I think the claim that students are poorly served in encountering legal theory is implausible).

Posted by: BDG | Jun 17, 2011 9:04:00 AM

I think you open yourself up for (mis)construction when you say "I believe doctrinal scholarship should be viewed with some wariness because, in speaking directly to legal policy makers, it partakes of a perilous immodesty. Purely theoretical scholarship, on the other hand, by whispering in the ears of other ivory-tower dwellers, is better suited to our limited capacity as scholars."

Anyway, your view takes on two burdens. First, to defend your redemption of the utility of scholarship, you need to how "the end product of good scholarship is doctrine" despite good scholarship being non-doctrinal. What is the production function? How does doctrine emerge? Is the final conversion done by more lowly scholars feeding on table scraps, or the boundary-crossing judge?

Second, to make this like basic science, we would need a grant system -- basic scientific research isn't run off of tuition. Is the choice of subsidizer irrelevant, and how is merit evaluated?

Posted by: Anon3 | Jun 17, 2011 9:32:26 AM

As Anon3 points out, there are many confusions in this post. It is hard to understand how BDG thinks that doctrinal scholarship is immodest and then cites Brandon Garrett's work as an exemplar of the kind of scholarship he advocates. Garrett is highly prescriptive about how interrogation policy should change, without making much effort to assess the extent to which his proposed reforms will make it harder to convict the guilty. Whatever the value of his scholarship (and I do think it has value), it is hard for me to understand how it is characterized as free from BDG's sin of immodesty. And, if scholars should not address doctrine because it is immodest to make proposals directly to policymakers, who should? Would it be a better world if we left doctrinal debate to the briefs of the parties?

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jun 17, 2011 9:56:14 AM

A few comments:

1. "So really, the complaint is that gate-keepers at the most selective journals do not value the same things practitioners do." I agree with that entirely.

2. I think debates about the relative value of legal scholarship need to keep in mind the Sturgeon hypothesis: 90% of everything is crap.

3. Attempts to shame legal academics into writing more doctrinal scholarship through the liberal use of snarky blog comments (or even semi-snarky comments to New York Times reporters) are largely futile. Prestige for legal scholars is largely accorded by other legal scholars. Want to change what legal scholars write? Change the incentive system.

Posted by: Bruce Boyden | Jun 17, 2011 11:18:21 AM

"the question of whether scholars who eschew doctrine are a good choice for teaching future lawyers is a complicated question. . . ."

It is, really? I like theory and think it's an important part of a legal education. But I would also say that, at least in general, scholars who "eschew doctrine" are not a good choice for teaching future lawyers.

Posted by: Joseph Slater | Jun 17, 2011 2:03:59 PM

Bruce Boyden:
"Attempts to shame legal academics into writing more doctrinal scholarship through the liberal use of snarky blog comments (or even semi-snarky comments to New York Times reporters) are largely futile. Prestige for legal scholars is largely accorded by other legal scholars. Want to change what legal scholars write? Change the incentive system."

What about all the lectures on law as a ethical pursuit?

I should only keep privileged communication privileged if I am properly incented to do so? Zealous representation, so long as it has useful signaling effects?

Or is it a case of ethics for thee and not for me? I'm at a loss to figure out who or what - if anything - the tenured law professoriat feels any duty of loyalty, good faith and due care towards.

Posted by: brad | Jun 17, 2011 4:05:58 PM

Brad, I have no idea what you are talking about. There are, as far as I'm aware, no rules of professional responsibility that govern a law professor's selection of article topics.

Posted by: Bruce Boyden | Jun 18, 2011 12:18:37 AM

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