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Thursday, October 04, 2012

Defending Legal Scholarship

I like a good silver lining. And I think one benefit of the increased scrutiny that the taxpayer subsidy of law school loans are about to receive is that we -- the legal academy -- will be forced to defend the value of legal scholarship.

Many recent, public justifications for legal scholarship -- and student funding of it -- have been on instrumental grounds. The argument goes like this: We need to be doing excellent legal scholarship so our school will have a strong reputation, which is important to U.S. News rankings, which is important to students who want jobs. Vik Amar's recent column is an example of this.

I've always found this justification kind of depressing, in part because it appears to be false. As far as I know, the only factor that has been shown to affect a a school's peer assessment score in the U.S. News rankings is the previous year's movement...in the overall U.S. News score! There is no evidence that the reality or perception of strong (or improved) legal scholarship, quality or quantity, has an effect on the U.S. News rankings. Deans know this, and have for a while. The key determinant of movement in U.S. News has been incoming students' credentials, and increasingly, it is employment outcomes.

So legal scholarship has to be defended on its own terms, and that's a good thing. Because despite the caricatures, we have a good story to tell. I just look around my own faculty at William and Mary, and see Alan Meese challenging the Justice Department's conclusion that stronger enforcement of the Sherman Act's ban on monopolies would mean greater economic growth, Jim Dwyer working with a local prosecutor to explore what does and should happen to child witnesses of domestic violence, and Vivian Hamilton presenting a forceful case for lowering the voting age in the U.S., drawing on cognitive psychology, democratic theory, and her own prior work on the state's role in the development of young people.  I could go on. And as in science and medicine, foundational -- not just applied -- research is critical as well.

So my eloquent response to the claim that law professors don't write on things of importance to the real world is: "Really?" I just think the critique is off-base, and we ought to defend the value of legal scholarship more forcefully and explicitly.

Without academic study of the legal system, debate on important legal and policy issues would be driven exclusively by interested parties -- a phemonenon that torts scholars like me are all too familiar with, as the punitive damages debate has been dominated by research that Exxon created by funding Cass Sunstein and others.    

What have you seen that defends the value of legal scholarship? One of the best things I've seen recently is by Marcia McCormick at Workplace Prof Blog, and I'd love folks to post links in the comments to more.

Posted by Jason Solomon on October 4, 2012 at 01:43 PM | Permalink

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You also have professors at your school writing "Civil Recourse as Social Equality," a dense piece that few practitioners are likely to value at first blush. My point is this: the academy has to do a better job of explaining why articles that may not have obvious or immediate application to the daily practice of law or to government or business still have value. It must be true that articles that advance knowledge generally, or that might fall in the category of "discovering knowledge," which has to be one responsibility of a law school, have value. After all, Professor A might write Article A that spawns subsequent articles that, over time, significantly influence the law in some major practical way. At the same time, I once had a law school dean tell me that too many professors write articles that amount to counting the number of angels dancing on the head of a pin. Long story short, your point is a good one, but professors have seldom (if ever) done a good job of defending foundational scholarship, and there is good reason to worry that their ability to effectively do so now is limited. I hope not, because foundational scholarship can have great value, but many, many of your constituents do not appreciate this.

Posted by: Doug Richmond | Oct 4, 2012 2:37:55 PM

It seems to me that you're attacking a straw man here. Even Chief Justice Roberts regularly cites law review articles in his opinions. And there are legal academics whose work has been cited in thousands of legal opinions (think Wayne LaFave of Illinois) and others whose work has led to major cases (think Randy Barnett of Georgetown). I think the complaint is not so much that no legal scholarship has relevance to the legal system, but rather that the prevailing values among today's legal academics often make engagement with the values, realities, and experiences of the legal profession only of marginal interest -- and sometimes a subject of dismissal if not outright suspicion. I'm reminded of hearing a paper presentation by a tenured professor at Yale Law School that ended, "So what does this have to do with law? I don't know; maybe nothing. I'm hoping you can help me with that in the Q&A." Now maybe that attitude is a good thing, and maybe it's a bad thing. But the more legal academics intentionally create a big gap between what we're doing and what practicing lawyers are doing, the more we should expect practicing lawyers to perceive a big gap between what they're doing and what we legal academics are doing.

Posted by: Orin Kerr | Oct 4, 2012 3:12:01 PM

I propose a different question: What is the optimum amount of legal scholarship?

Posted by: Steven Lubet | Oct 4, 2012 5:11:19 PM

I believe the optimum amount is 7.

Posted by: anon | Oct 4, 2012 7:31:58 PM

It seems to me that there are two substantial advantages to doing scholarship. First is its direct advantage to the stock of information and insight that other profs, policymakers, attorneys, and lay people can access in determining the best course to take in any given legal situation. Each article is like a scientific study on, say, the airspeed velocity of the African swallow: individually, it may not matter much, but it, combined with the insight gleaned from other articles, might say something very important about the law.

Second, scholarship can translate into better teaching. This assumes that profs are doing scholarship directly in the areas in which they teach--and there's probably substantial overlap there. By doing scholarship, profs allegedly come to greater insight into their field. Thus, those ten Fourth Amendment cases that you used to teach separately now appear to be a part of a larger system subject to fewer than ten separate overarching rules. Good textbooks do this, but nothing compares to a prof who has come to these overarching rules, at least partially, independently.

Posted by: Steven R. Morrison | Oct 4, 2012 9:19:07 PM

I think the core of the complaint about legal scholarship lies in the incentives and the practitioners perception that much legal scholarship is written and published for the sole purpose of having citations - no one really cares if it is read, other than by a "circular mutual-citation squad" of professors.

That is not to say that there is not useful legal scholarship - but that there is simply too much bullshit masquerading as legal scholarship, or even for that matter legal thought and legal anything!

In that regard I have from time to time in legal research dug up the odd law review article (there are some honorable exceptions) that on the topic I am specifically concerned about - the articles are a festival of prevarication and inconclusive statements. In much of their writing professors remind me of one of my associates for whom I jokingly attributed the statement:

"one of these days I have to get around to doing something about my ambivalence."

To my consternation it summed him up so perfectly that everyone insisted, the associate included, that he had, in fact, made this statement. Indeed they remind me of another lawyer who reported to me (very academic, Oxbridge) who could never make a decision and wrote long unfiltered memoranda devoid of recommendations. One day pushed to actually make a recommendation over an hour or two we had a breakthrough - and he gave a single conclusive answer - it all fell through though as after leaving the office he popped his head back trough the door to say - "on the other hand....."

A few months ago I had the temerity to post a list here of subjects that I would be interested in seeing some legal scholarship on ... not a "bite." No interest -

1. Antitrust and leniency programs – what measures should antitrust agencies take in the event of failure to fully disclose or intentional manipulation of leniency programs. Do agencies have any obligation to prevent manipulation of filial-agency programs?

2. International law firms - what are counsel obligations when a single firm is representing parties in multiple judicial and quasi-judicial fora. Does a US firm have any obligations to avoid representations in foreign fora which are contrary to facts that are available to that counsel through discovery in the US

3. In the international online commercial environment the possibility exists that an act might infringe copyright in multiple jurisdictions and indeed infringe neighboring rights – copyright, trademark, design-rights. This gives rise to the possibility that parallel litigation could be filed in multiple jurisdictions seeking recovery for essentially the same acts and injuries. Should this type of litigation be precluded? If it is precluded does it give rise to the risk of “Italian Torpedoes” for online infringement?

4. Is aggressive enforcement by large intellectual property holders creating a risk of oligopoly/oligopsony in the technology industry?

5. The patent troll problem and nuisance value extortion. Do the tools to remedy the problem already lie in the hands of the Federal Courts?

6. Anti-dumping cases can have the perverse effect of rewarding importers – this is because an importer who is subject to a small dumping margin – as opposed to the bulk of importers with a large dumping margin can effective arbitrage the difference into a substantial added profit margin. Is there anyway within the existing law and treaties to prevent such arbitrage? What regulatory changes might be feasible and adviseable?

7. The recent Wikileaks included a number of messages from US antitrust authorities along the following lines – "our hands are tied by the Supreme Court – could DG Competition please act quickly on this issue before the Chinese act – because we do not want China to become a key arbitror in international antitrust decisions." Illustrate this with the recent approval with undertakings of the Google acquisition of Motorola Mobility – a sign of things to come?

8. Transnational counsel and protective orders – what is the situation of a lawyer who is counsel in cases in multiple jurisdictions?

9. Abduction in international custody disputes, conflict of laws and comity – usable laws and effective strategies.

10. The coming antibiotics crisis and the role of FDA law and intellectual property rights.

Posted by: MacK | Oct 5, 2012 1:17:10 PM

MacK,

You seriously expect the professors reading this blog to abandon their current research at the drop of a hat and write about whatever an anonymous Internet commenter happens to suggest? Besides, I'm sorry to break it to you, but most of the topics you mention have already been written about extensively.

Posted by: practicalprof | Oct 5, 2012 5:33:44 PM

practicalprof

Umm no, your name is a misnomer.

Off now and write about the semiotics of the Napoleonic code

Of course if you were not an actual professor (and thus a caricature of a professor) you might actually have said"oh, that is what real world lawyers are interested in, maybe semiotics of .... is a waste of time"

Why is it that this forum has so many so called law professors who are so anxious to prove that the caricatures of law professors - as totally disinterested in anything that matters - is not a caricature but the reality??? Why do they call themselves by oxymorons like "practicalprof"

Wow!

Brian, Brian??

Posted by: MacK | Oct 5, 2012 5:43:19 PM

And practicalprof - post a list of your current "topics" so I and numerous other can take a high altitude **** on it. It is probably the most comment and interest it will receive from any real lawyer.....

Posted by: MacK | Oct 5, 2012 5:45:30 PM

One last point IMpracticalprof - since you say "but most of the topics you mention have already been written about extensively" can we have 5 citations on each or an image of you performing a painful act with a cactus instead?

Or even 3 but I get to suggest where you put the cactus....

Posted by: MacK | Oct 5, 2012 8:07:57 PM

If you want to show that legal scholarship affects the real world, why not rank law schools based on the number of cites by courts and legislative histories, rather than the number of cites in academic articles?

Posted by: anon | Oct 7, 2012 3:13:07 PM

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