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Wednesday, September 27, 2006

Specialization in law school faculties

In a comment on one of Paul's typically adroit and artful posts, Kevin Heller made a comment that went in a somewhat different direction -- and one worth responding to a separate post, I think, to benefit those who don't check the comments. In brief, Kevin asserted both from personal preference and as advice to those on the market that there are frequently excellent reasons, besides geography, to choose a "lower ranked" school over one that's higher ranked: the faculty at the former might have more and better people doing work that shares a methodological or theoretical approach to yours, or that is in the same doctrinal or policy area. In addition to the advantage of creating a stronger community of interest that will aid your own development, it might indeed be better for promotion and tenure purposes to be at a place where senior faculty really support your work if your particular commitments would be an outlier at the "higher ranked" school.

This raises a bunch of really interesting issues. First, I don't think you see this kind of specialization as much in law schools as in graduate or even undergraduate programs. George Mason's methodological and political commitments, for example, are so striking because it's so rare in law schools to commit to that degree, while many graduate programs sell themselves based on the single or limited number of approaches that their key faculty offer. Law schools tend to be generalist institutions that offer the same general variety of courses -- frequently because they have to under accreditation requirements -- and that are composed of a typically motley crew of faculty members hired over the course of several generations. And over those generations and appointments seasons, those hires have served either a variety of curricular needs or are based on some notion of a "best athlete" available at the time -- an athlete whose quality and work are likely to be defined based on that which is prevalent on the law hiring market and in the larger world of academia at the time they're hired. As a result, specialization is more difficult to achieve. I also think there's also much less interest on the demand side, among students and alumni, than in grad and undergrad programs. (I have mixed feelings about special programs and institutes and the like within law schools, but that's a whole nother set of issues.)

Second, I think this goes to some of the oddities of the law hiring process we've discussed on this blawg in the past couple of weeks. If law school faculties tend not to be focused, they have a difficult time sorting candidates whose work has a particular focus. How can a faculty with a small number of legal [fill in the blank: economists, cognitive psychologists, humanists, etc.] decide the merits between different candidates within that specialty, muche less choose between, say, candidates for a torts slot that each claim to do work in different fields of law-and-[blank]? One way to do so is to lean on other credentials that speak little, or not at all, to the candidate's value as a law-and scholar: law school, clerkship, law review placement of the article they just published.

But to return to Kevin's comment:

I agree with him, to a point. Legal academia's generalism is a weakness, certainly -- it allows all kinds of mediocre work to pass through the cracks, and it means that every loud-mouthed legal academic can feel empowered to stand up in the middle of the talk and deliver what he (gender chosen intentionally) considers the absolutely cutting critique that instead demonstrates his own ignorance of a field. And there's real value in finding in a home institution a core group of like-minded souls who can read your work and challenge it on its own terms, and with whom you can converse regularly.

But generalism can be a strength, too. Narrowly focused graduate programs can produce brilliant work, yes, but they can also become echo-chambers, and opting into a lively but narrowly-focused community can also fence out those who might bring an important external challenge. To me, the ideal law school would be one where there are a few people whose work is like mine, but lots of really interesting and open and brilliant people whose work and whose politics are somewhat and even completely different from mine. As a student, law school felt like a much more diverse and varied world than graduate school did, and I liked that; I think law school faculties, at least as an ideal, can provide the same thing precisely because of their tendency towards generalism.

One can try to develop a community of friends and colleagues across the country (and, thanks to Kevin, halfway around the world) with whom you can share work and get insightful commentary. It's much more difficult to build that kind of network among people working in different fields and from different perspectives. Having those folks in your home institutions is really great and really important, too.

Posted by Mark Fenster on September 27, 2006 at 08:25 PM in Life of Law Schools | Permalink


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Jeff, thanks for your thoughtful posts. I think we agree on the principles, but perhaps not the applications. What is interesting about R. Posner is what he stands for rather than what he writes. Posner made pragmatism and cost-benefit analysis fashionable and respectable for academics that thought largely in terms of rights based theories in the 60's and 70's. He took the crass out of crass commercialism. That actually is pretty amazing when you think about it. I actually mean this is a positive way. Posner the Idea is important. His writings leave me kind of unimpressed, except for the quantity.

From the standpoint of pure economic theory and method, there are many things in Economic Analysis of Law that are questionable and sound more like advocacy than scholarship. I would actually rate Kaplow and Shavell's book Fairness versus Welfare? as a better statement of what law and economics stands for.

I once began a talk by saying that I don't care what my colleagues think about my work now. I just want to be read and cited a hundred years from now. Conveniently, that takes the burden of proof off me.

Posted by: Shubha Ghosh | Sep 29, 2006 5:30:16 PM

Shubha: I think we agree - if a piece of scholarship is good, it probably transcends the issue of advocacy.

As to the question whether it is good, Matt's comment hits on something I've thought about recently. That is, the real test of excellence versus mediocrity in social thought (including the social sciences and humanities) is what is being read 100 years from now. In the short run, it's hard to argue that something provoking a full issue of responses in the Harvard Law Review is not scholarship (with the full array of bright lights, from Nussbaum to Fried to Kronman responding). But really great work has a timelessness to it. So the thought experiment I run (or would run over at The Legal Profession were we up and running now) is what the works in Orly's post would look like if we were sitting in 2016 doing an intellectual history of legal theory of the late 20th century. I'd agree that Economic Analysis of Law makes the list, but if Posner were Freud, Problematics would be Moses and Monotheism.

Posted by: Jeff Lipshaw | Sep 28, 2006 1:00:30 PM

I am certainly not suggesting that the natural sciences should be a model of legal or social science scholarship. And I agree with the poster's comment that "writing a history paper is like a legal brief." But we need to be careful with metaphor (or simile in this case). The two are similar in that the author of each wants to persuade the reader; the differences are in the intended reader and in the intended result. The Hart-Fuller debate is a perfect example. Putting aside how one feels about the substance of that debate, the beauty of the works of each author is their aim at a wide audience, including the judiciary as well as commentators, and at wide issues. Whether they are the best examples of scholarship, or advocacy, is another matter.

My distinction between scholarship and advocacy was made partly in response to the notion (which I think can be traced to the article by Judge Edwards) that legal publications should be something that practitioners should be able to turn to in assistance with the application and formulation of law. In other words, law professors are virtual and effective clerks for judges and attorneys. Certainly, legal scholarship should do that in part. But I am not sure why it should only do that. Furthermore, to the extent the Judge Edwards was aiming at the theoretical abstraction of law review publications, the problem may not be that these pieces are poor examples of advocacy, but that they are poor examples of scholarship.

Posted by: Shubha Ghosh | Sep 28, 2006 11:38:40 AM

Jeff asked,
"Was The Problematics of Legal and Moral Philosophy advocacy or scholarship?" It certainly wasn't scholarship if that means, say, making a good-faith effort to understand arguments and giving them in return!

Posted by: Matt | Sep 28, 2006 10:22:33 AM

I'm not sure I understand the distinction between scholarship and advocacy (as a matter of form or substance) in the preceding comment.

As to form, I still have a vivid memory of my teaching fellow in Introduction to US History (who has remained a friend for over thirty years, by the way, and is a historian and scholar of some renown - and I suspect never in his career has he had to defend his area as one of "scholarship!") saying that our history papers were like legal briefs: you propose a thesis and then marshall evidence and subarguments in support of a thesis.

As to substance, all scholarship other than mere data collection is the proposal of some kind of thesis (hypothesis), and hence is advocacy in a sense. The scholar is making a point. Rosalind Franklin performed essential work in collecting the pictures of the DNA molecule, but Watson and Crick proposed hypotheses as to its structure (and Franklin critiqued the hypothesis along the way).

But we need to be careful here in the analog between the natural sciences and social inquiry. I think what you mean is that there needs to be a recognition in social inquiry of the kind of relationship that exists in the natural sciences among thesis, data, and counterthesis. Maintaining a thesis on a social issue (be it rational actor theory or a political agenda) in a doctrinaire way feels like the kind of advocacy with which you would take issue. But even there, I'm disinclined to jump too quickly - since nobody yet has managed to come up with the dispositive form of reductionism (suggesting it does not exist) social or humanities inquiry, I'd be inclined to critique analysis on the borderline between scholarship and undue advocacy on its merits rather than try to place it in a category. Whether or not I agree with the conclusions of critical legal studies theorists, for example (by and large I don't), the movement clearly has a political basis and an advocacy point of view that I'm not willing to dismiss out of hand as "unscholarly." Was The Dialectics of Enlightenment advocacy or scholarship? Was The Problematics of Legal and Moral Philosophy advocacy or scholarship? Were the debates between Hart and Fuller advocacy or scholarship? I don't see "distinct entities" at all.

Posted by: Jeff Lipshaw | Sep 28, 2006 9:28:29 AM

Mark, I agree with your vision of the ideal law school community. I think your image can even be extended to the ideal university community. I am a big believer in interdisciplinarity in law, but it strikes me that much of interdisciplinarity works its way in through the creation of "straw persons:" the economist, the sociologist, the cultural studies person, etc. These are tropes against which the student or the scholar is asked to foil without necessarily sensing or understanding the tensions and questions within the discipline. That is one reason I avoid the term law and [blank] and prefer {blank] in law or just [blank] by itself as distinct from law. This usage can be awkward but also can work.

I think there are two answers to this problem. The first is to move away from the view of legal scholarship as the creation of briefs with more footnotes and pages,i.e. without the strictures of local court rules but within the strictures of law review conventions. I don't think an article or book should be or is an advocacy piece. Scholarship can be advocacy and certainly can be used for advocacy. But scholarly inquiry and advocacy are distinct entities.

The second proposed solution is also along these lines. If legal scholarship has rules and norms of its own, it is important to flesh them out and develop them. As with any scholarly method, this occurs through practice. What is particularly exciting about legal scholarship is the possibility of mixing various methods across disciplines in a way that respects the integrity of each field (including law) while developing new ways of approaching problems and thinking of and thinking about questions.

Posted by: Shubha Ghosh | Sep 28, 2006 8:15:05 AM

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