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Friday, October 05, 2012

How (Not) to Defend (Legal) Scholarship

I've really enjoyed and appreciated Jason Solomon's guest posts on Prawfs in the past couple of weeks and am very sympathetic to some of the questions he's been asking about the cost and value of law schools. In his latest post, Jason argues that "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." He questions attempts to justify legal scholarship on certain kinds of instrumental bases, such as that it helps enhance schools' reputations. "[L]egal scholarship has to be defended on its own terms, and that's a good thing," he writes. I agreez! In his view, legal scholarship has lots of things to offer that are of "importance to the real world." And he links to a post by Marcia McCormick that argues on similar grounds that "there is great value in legal scholarship. The public benefits by getting legal and government structures that make real people's lives better. Students benefit from the scholar's ability to turn chaos into order and communicate both the chaos and the order to someone who hasn't done the same work."

I enjoyed Jason's post, but let me add a few thoughts of my own.

First, as Steven Lubet suggests in the comments, I think this doesn't really answer the key question. Except for a subset of critics who believe legal scholarship ought not exist at all (or something; they're not always very clear about this), the real question is how much legal scholarship ought to exist, or at least how heavily subsidized legal scholarship ought to be. Pointing to useful scholarship--or crap scholarship--doesn't tell us whether we as a system are paying too much for it.

Second, I think Jason has unwisely just substituted one set of instrumental arguments for legal scholarship for another one. I think there ought to be more doctrinal, empirical, practical, useful legal scholarship. But I also emphatically think there's a place for good scholarship, legal or otherwise, that is not necessarily useful, or whose value is much more indirect, including simple contributions (or attempted contributions) to understanding the world better. I don't depend on legal history or theory--or non-legal history or philosophy--to be functionally useful; I just want it to be good, true, and productive of thoughtful discussion. If Jason says something useful about civil justice in his writing, I think that's a good in itself, whether he finds takers in the legal system or not. If someone writes about Kantian theory and the ACA decision, I don't care much that Chief Justice Roberts is unlikely to pay much attention to it; I just want it to say something intrinsically correct and interesting. There is a lot of crap in legal scholarship, period, and some good stuff; not all the instrumentally oriented legal scholarship is good, and not all of the non-instrumentally valuable scholarship, even if it's not useful, is bad. We ought to be asking hard questions about the standards for and quality of legal scholarship, and we ought to be asking how much we pay for any and all of it. But I think defending it on strictly instrumental grounds is a mistake, and perhaps even a disservice to scholarship, whose goods are sometimes much more intrinsic than instrumental. Truth is not always a particularly instrumental value, but I think it is a value, and one worth upholding. 

Finally, and somewhat relatedly, I think either of our views leave a lot of room open for other questions about how we structure the conditions for scholarship. Whether you think it ought to be instrumentally valuable or just of high quality regardless of its instrumental value, that doesn't tell us much about how to improve the ratio of good to bad scholarship, what aspects of the current academic structure are necessary to scholarship and what aren't, and so on. I see no reason in principle, for instance, why Jason and I couldn't disagree on the purpose and value of scholarship, legal or otherwise, while still agreeing that, say, there ought to be a robust requirement of post-tenure review, or that 70 percent of the law journals out there ought to be eliminated, or that law schools ought to be able to make much greater use of adjunct professors, or that most tenure-track law professors ought to be shifted into undergraduate schools of law, or history or philosophy departments--or, if the demand isn't there, fired and left to fend for themselves in the non-academic sector. I'm not arguing for these things; I just don't think our position on the value of legal scholarship necessarily says much about them.

Posted by Paul Horwitz on October 5, 2012 at 09:11 AM in Paul Horwitz | Permalink


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Thanks, Paul -- was waiting for someone to make the point about my arguments being instrumental as well -- glad it was you. Contra your title, though, I don't think we disagree on much, if anything. I agree with Lubet's point as well that question is really how much. And I didn't mean to suggest that it should be defended on "strictly instrumental grounds" -- I'm all for upholding truth as a value as well.

I guess I'd just say this: if and when any law professors or deans end up testifying before Congress against the coming proposals to drastically cut back on the direct loan program for law students (or IBR), I think we want to use the arguments that may be slightly more likely to resonate.

Posted by: Jason | Oct 5, 2012 10:03:28 AM

I'm surprised how little pushback there's been against the notion that the value of legal scholarship lies in how useful it is to lawyers and judges. To (very loosely) paraphrase Richard Feynman, we don't measure the value of ornithology by how useful it is to birds.

Posted by: Jon Weinberg | Oct 5, 2012 3:34:03 PM

Nice post, Paul. I have a friend in Philosophy who, at the start of his Intro class, has a lecture (about how important it is to study and do Philosophy) called "Philosophy is Useless." R

Posted by: Rick Garnett | Oct 5, 2012 3:51:41 PM

These arguments would be fine if there were no more law professors than there are philosophers or ornithologists. But please compare the number of philosphy graduate students to the number of law students annually -- or the number of tenured philosophy professors to the number of tenured law professors -- and then calculate the amount of uselessness that the economy ought to support. (And by the way, I am pretty sure that some ornithology has turned out to be rather useful to endangered bird populations.)

Posted by: Steven Lubet | Oct 5, 2012 6:25:13 PM

If ornithologists were responsible for teaching and training birds, and were financially supported by birds, and prepared birds to pass an examination that would let them join the flock, I'd be very troubled if their orientation was not towards serving pre-professional and professional birds.

Posted by: andy | Oct 5, 2012 7:23:46 PM

I appreciate the comments. As I said above, although I think there is some good scholarship out there that is worth supporting and that doesn't easily fall into the "useful" category as we're all understanding it here, I also think there is emphatically renewed room for a discussion of and focus on improving our "usefulness" ratio, although I think some of that will include work that is useful to a different audience than (or in addition to) judges--empirical work, for instance. And I think we should value doctrinal work more highly than we currently do, although I also think, after some years in my field, that doctrinal work that's too disengaged from some degree of theory can come off rather disembodied and neglect some questions that end up affecting that work greatly. So I would encourage more practical and doctrinal work without suggesting it's the only kind of "good" work that legal scholars can do.

On Steve's point, while I am sympathetic in large measure, and certainly think that costs and numbers are an essential part of the discussion, I also think Rick's point was that, at least at the undergrad level and at a university, like Notre Dame, that aims to be formative, there can be scholarship that is both "useless" and yet essential, both for students and perhaps for some wider realm. That doesn't tell us how much we should produce of it and at what cost, and I appreciate that there are questions about how much such a point would apply in the realm of professional education; I don't think, though, that the answer needs to be a binary, all-or-nothing one.

Posted by: Paul Horwitz | Oct 6, 2012 8:32:09 AM

I would have to agree that philosophy isn't useful to morons. Maybe the same is true of scholarship more generally.

Posted by: Brian | Oct 6, 2012 11:33:40 AM

Nobody would care if not for the cost.

Posted by: Steven Lubet | Oct 6, 2012 7:34:50 PM

@andy -- that's a different question, I think. There's a perfectly good argument that because law professors are supported by law students, their primary orientation should be to law students, and that they shouldn't be doing much scholarship at all (because the value of scholarship in promoting good teaching is overrated). That argument is much stronger than the argument that law professors should be supporting judges, who aren't paying anything. I understood Paul to be asking, on the assumption that law professors should do scholarship, what *kind* of scholarship they should do. It seems to me that if law professors are doing scholarship, it's most importantly because they (most of them, anyway) are part of a university, and properly understand what they do as fitted into the idea of the university -- Newman's "exuberant and diversified and persistent promulgation of all kinds of knowledge."

Posted by: Jon Weinberg | Oct 7, 2012 8:54:23 PM

Thanks for the additional comment, Jon. At risk of being totally predictable, I'm going to split the difference a little. I do think that, fairly rare "do no scholarship at all" arguments aside, there is a place for scholarship that is practical, whether it helps judges, practicing lawyers, lawmakers, or others, and that legal scholarship as a whole produces too little of this, both in terms of quantity and quality. I think there should be more of it, that it should be valued more highly, and that more "elite" scholars should do more of it as well. I just wanted to put in a plug for the value of at least some scholarship, in our field or any other, that is arguably great scholarship in and of itself without recourse to arguments about immediate practical outcomes. And I agree that, although the law school fits into the academic environment in an odd way, this scholarship is part of our potential scholarly vocation as well, in the way that Newman put it. Again, how much we should pay for it is, to my mind, a separate and perfectly fair question.

Posted by: Paul Horwitz | Oct 8, 2012 9:22:22 AM

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