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Saturday, March 22, 2014

What does/should a law professor write?

My recent post, "What is/should be a law professor?", garnered a decent amount of posts; not surprisingly, as it opened the door to professor-bashing, which is in vogue these days.  A major, if not the main, criticism was that law professors write academic esoteria that has nothing to do with their teaching, about which they do not care.  Anyone who has both taught and done scholarship either knows this is a false dichotomy, or, imho, hasn't thought creatively about the synergies between teaching and scholarship.  

However, having just gone through the spring law review submissions season, replete with offers, expedited requests, and rejections, all toward the realpolitik goal of a top 20 placement, it is clear that something is amiss.  A recent poster to "What is/should be a law professor?", AnnOnY, lamented that s/he had a lot of practice experience, and had drafted bar journal articles, CLE manuscripts, practice-oriented articles, and "briefs on very sophisticated and intricate legal issues at the trial and appellate levels."  When s/he went on the teaching job market, s/he received few interviews.

Add to this a few of my own experiences: I have used my current and past appellate briefs as teaching tools, and the ideas contained therein to inform my scholarship; one of my low-ranking law review articles has been cited in two SCOTUS cert petitions and was the basis for another scholar calling me a criminal law theorist on par with Joel Feinberg (if only...); and a practice-oriented article in The Champion has been used in public defender training materials around the country.

Based on all this, I'd like to posit that (1) traditional scholarship can be, and often (usually?) is valuable to teaching; (2) low-ranked scholarship can be valuable both academically, pedagogically, and practically; and (3) non-traditional writings, like those of AnnOny, can inform one's teaching and can advance the law (which is the purpose of traditional scholarship).  I'd like, therefore, to ask: what does/should a law professor write?  And perhaps more pointedly, what writing should a promotion and tenure committee count?  And how should it count it?

Posted by Steven R. Morrison on March 22, 2014 at 07:06 PM | Permalink

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I sympathize with the commenter in practice who could write brief and short pieces but found law review articles to be too time consuming to write while in practice. I think law schools should take a more holistic view when hiring entry-level candidates. But a CLE publication is not a law review article. Nor do 10 CLE and bar publications equal a law review article. One can slap together a short bar piece in a couple of hours, in particular on a known topic. I have some experience with law review articles and yet they still take 6-9 months to write, and I'm no longer in practice.

Posted by: Junior Prof | Mar 22, 2014 8:44:14 PM

I think there are several different questions in play here:

1) Should law students subsidize the legal scholarship of their faculties, and if so, how much?
2) Do individual professors do work that is relevant to the world of legal practice?
3) What is the overall value of the work that law professors do?
4) What is the relative value to the legal system as a whole of traditional vs. nontraditional scholarship?
5) What kinds of scholarship should schools treat as significant under that school's tenure and promotion standards?

I think it's difficult to respond to the post because these questions are different from each other. The questions implicate different kinds of balancing of several distinct interests: the interests of students in the short term; the interests of the legal system in the long term; the interests of causes that law professors favor; the interests of universities; etc.

Posted by: Orin Kerr | Mar 22, 2014 10:16:18 PM

Junior Prof and Orin,

Thank you for the comments. I think you both highlight the fact that different types of writing "do" different things, and professors have a number of different interests built into their jobs, including direct teaching, research and writing that serves their teaching, performing professional service, and helping to develop and improve legal systems. I'm not saying that one type of writing should be preferred over another, or that they are all equal. Rather, as Junior Prof mentioned, a more holistic view of what "counts" may be called for. What that view is doesn't have to be set in stone for each professor or institution, but it could incentivize professors to do writing that responds to the legitimate gripes about law schools today.

Posted by: Steven R. Morrison | Mar 22, 2014 10:24:30 PM

Steven, if I understand you correctly, you're assuming that students should subsidize, and law school committees should "count," any law professor activity that is valuable to the legal system generally. My point is just that this assumption is debatable: It depends on the goals of that particular law school, different views of the roles of universities, etc.

Posted by: Orin Kerr | Mar 22, 2014 10:56:30 PM

Orin,

I hadn't factored in the reality that students subsidize professors' writing, although that is of course what happens. Some subsidization is appropriate, when, for example, professors' writing serves teaching, networking for students' future employment (as by drafting a practice manual or doing a CLE), supports students' independent studies with expert professors, exposes students to an intellectual environment that can make them better legal actors (attorneys, legislators, future law profs, or whatever), or even improves the law school's reputation (which can help students land jobs).

I think my point is that there is currently some connection between professors' writing (and what "counts") and the stated goals of law schools, but there could be more. If a school cares about connections to the bar, then practice manuals and CLEs could substantially count. If a school cares about service to the profession, then association reports could count. My intent wouldn't be to limit what professors can write that counts, but to expand it and think more creatively about it based on the needs of various players (students, law schools, universities, the bar, states, etc.).

But just to be clear, traditional scholarship in my mind continues to be important. Whether these other types of writing count as scholarship, service, or some other new category is less important to me than that they should probably be recognized as valuable contributions that a professor provides to the school.

Posted by: Steven R. Morrison | Mar 22, 2014 11:21:54 PM

With regard to "connections to the bar" and contributing to the "practice" of law in general, I don't think that practice manuals and CLE's are the best way for an academic to contribute. These materials, frankly, aren't typically very deep and provide more of a summary of the law. The good ones also add insights from actual experience, which certainly isn't the "sweet spot" of a law professor's ability to contribute.

In my view, the best contribution that a law professor can make, aside from teaching, is to develop the law. Law professors have the wonderful luxury of thinking deeply, and really obsessing, over an issue or subject. This is tougher to manage in legal practice--though I try.

Taking that time to obsess over a topic, then writing articles that are accessible to lawyers and judges, will add great value to the legal profession. That does not necessarily mean academics should go back to the days when everything was purely about doctrine, but it does mean that thinking about how a particular project might contribute to the profession isn't such a bad idea.

Of course, like the sciences, both basic and applied research contribute, but in different ways. The less immediately-accessible articles have use, but the benefit is less direct.

Posted by: Jarod Bona | Mar 23, 2014 12:20:47 AM

Steven writes: "I hadn't factored in the reality that students subsidize professors' writing, although that is of course what happens."

And importantly, that's the source of the student complaints. In their view, the problem isn't just that scholarship can lack value to the practice world. The problem is that scholarship can lack value to the practice world and yet the students pay dearly for it through their tuition, all the while they are having trouble getting hobs. The students are funding the scholarship, and they're questioning whether it is worth the debt that it is causing them given the difficulty of paying that debt back. You suggest that scholarship can help them in some ways, but I gather the student critics would respond that "it can be a benefit" is different from "the benefit exceeds the cost." That's why question #1 above is different from the other questions: It is a question of cost/benefit to enrolled students, whereas the others are not.

Posted by: Orin Kerr | Mar 23, 2014 2:19:10 AM

Oops, make that "trouble getting jobs." I don't know if students are having trouble getting hobs.

Posted by: Orin Kerr | Mar 23, 2014 2:20:00 AM

They could look here:

http://www.miele.co.uk/hobs/

Posted by: Marty Lederman | Mar 23, 2014 8:54:01 AM

Or here:

http://plato.stanford.edu/entries/hobbes-moral/

Posted by: Marty Lederman | Mar 23, 2014 8:55:47 AM

To jump off on Jarod Bona's point, it's one thing if writing practice manuals doesn't count because professors have no competitive advantage there (though I think some professors could certainly contribute at least as a co-author in a meaningful way) but what about projects like Restatements? How in the world did they manage to fall below law review articles in the terms of what counts for law professors?

Would Charles Clark be denied tenure and kicked out of Yale today?

Posted by: brad | Mar 23, 2014 12:10:27 PM

Brad, I'm not sure we can say what the value of drafting Restatements are for tenure purposes, as the ALI doesn't name untenured profs as ALI reporters. But I think that the changing value of drafting Restatements says as much or more about the changing perceptions of the ALI than about changing tenure standards. The ALI used to be a really huge deal, and it's not nearly as influential today as was in the middle part of the 20th Centiry.

Posted by: Orin Kerr | Mar 23, 2014 2:23:10 PM

Traditional "scholarship" is not very useful. It is not even that useful to other academics. Everyone on this board can rattle off a few law review articles that were extremely influential to scholars and to legal thinking. The Right to Privacy, Two Views of the Cathedral, Coase's public choice work, etc. Other scholarship does not stand the test of time and really is not very useful. That these few stand out among tens of thousands of filler underscores how useless most articles are.

Part of the problem is what counts as scholarship in the law arena. Everyone wants to be a slugger rather than get on base, and the journals which are edited by students encourage this approach. Open up any real scholarship from a real scholarly discipline (eg. in the sciences or in medicine). You'll almost uniformly see a very focused empirical article on a very narrow topic.

What's in the law journals? X conlaw issue. Y social policy issue. Economic or gender approaches to Z field of society. It's complete rubbish and useless. There are hot or fashionable topics and articles, but with a few notable exceptions they don't shape law. Ten or 15 years later, all but a handful are completely ignored.

What could be useful? How about picking a specific section of a statute and conducting a comprehensive analysis of that topic. Study the caselaw. Study the policy underlying the statute. Consider conflicts or approaches in that statute (or common law decisional area). Publish it. Very useful to scholars, practioners, bar associations, etc. Very few in the academy do this, as it is boring. Boring but useful.

ALRs or focused essays can do this, and they synthesize an area of law. They are great tools for practitioners and the courts, but are the unloved stepchildren of the academy. Befriend a practitioner, and you'll find that the law is replete with conflicts, disputes, inconsistencies, absurdities, and confusion. You could step into the morass, and try to highlight it or sort it out, or at least identify the problem to a wider audience. But you don't and you won't, because the professors won't appreciate it. It's not big thinking, but yeoman's work, and no one became a law professor because he was interested in being a grinder.

Unless you subscribe to the idea of natural law -- and no one does -- there aren't absolutes in law or even "correct" answers that you will reveal with your scholarship. Law is a social construct that regulates men and women in an integrated and complex society. Policy is often implicated, and boy do law professors love to talk about policy. But if policy's your goal, run for Congress or join Brookings, etc. If you want to study law, teach law, and be a professor of law, for Jove's sake please focus on law. At the very least, you'd be doing something of value to someone.

Posted by: Jojo | Mar 24, 2014 1:03:01 PM

Uh oh. I hope this thread doesn't devolve into a "legal scholarship is worthless" fest.

Legal scholarship is often quite influential without being visible. When I was clerking, my judge was assigned to a case that raised some very difficult First Amendment problems. When we met to talk about the case, my judge gave me a copy of a law review article and told me to read it because it set forth an interesting theory of the relevant legal question. That law review article formed the basis of the court's opinion, but the opinion didn't cite or quote the article.

Frankly, there is plenty that law professors can (and often do) do to make their work more influential. They can write short practitioner-oriented pieces that explain how an article thesis could be used to change current litigation strategy or doctrine. (The NACDL is trying to do this in a comprehensive way with the "Getting Scholarships into Courts" program.) They can volunteer to testify in front of Congress. They can submit comments to relevant agencies. They can write op eds based on their scholarship. (Margo Kaplan just did this quite well: http://prawfsblawg.blogs.com/prawfsblawg/2013/11/making-law-sex-positive.html). Profs can also use their research as the basis for CLE materials.

To be clear, I think that these are all ways that faculty can make sure that their scholarship is more visible, and thus more likely to change the law. But writing short bar journal articles, op eds, or CLE materials without having first done the long, hard slog that is required to write a law review article shouldn't (in my opinion) been seen as a sufficient alternative to first writing the academic articles themselves. Although there are many aspects of the current law review article formats that are silly, that format requires authors to do a substantial amount of foundational research and it forces them to explain and justify their conclusions at some length. That process has made me change my conclusions on more than one occasion, so I tend to think that it is central to the legal scholarship experience.

Posted by: carissa | Mar 24, 2014 4:19:41 PM

Should law students subsidize the legal scholarship of their faculties, and if so, how much?

I would think we already see differences along this axis, based on school ranking. That is, students at higher ranked schools see more of their money subsidizing legal scholarship than those at lower ranked schools (where professors tend to have heavier course loads). Students at higher ranked schools are arguably more willing to subsidize because, assuming their professors are very good (as they should be, teaching where they are), that's just the price for getting them.

Posted by: Anon | Mar 24, 2014 5:55:27 PM

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