More on "Who Cares"

Marc has written a typically thoughtful and lovely piece on the question of "Who Cares?" about legal scholarship.  It's a question we've wrestled with here from time to time.  I seem to recall a dialogue some time ago about "Why I Write."  Let me take my own cut at the issues Marc has raised.  My short-form takeway is this: "Who cares" is the wrong question.  The right question should be, "Why is this interesting?"  

We could start by dividing the "who cares" question into two separate questions: "who cares" in a practical sense, and "who cares" in a more abstract sense.  Let's focus on the former question first.  Some legal academics (still!) insist that legal scholarship must have a real-world payoff, usually one in the nature of legal reform.  Based on his response to Marc's answers, his interlocutor strikes me as being among this category.  I suppose we could further subdivide these people into two categories: those who want legal writing to have a broader impact on making ours a more just world, and those who want it to have an immediate practical impact.  

People in this category are making an argument about legal scholarship's practical impact.  And I think they are caught in a bind -- namely, the question why they are legal scholars in the first place.  Almost no legal writing, as a practical matter, has an impact on the first, justice-seeking level, and even then it rarely happens quickly or alone.  Certainly the mere "justice" of your proposal is unlikely by itself to lead to changes in the world.  For such people, it would be better to attempt to make your arguments in a different forum and in a different fashion.  You should engage in politics, journalism, and other areas of "moral entrepreneurialism" in which your justice-seeking arguments are more likely to have traction.  You might be a legal scholar, but your real goal will be to succeed outside of legal scholarship.  Indeed, it is arguable that those legal scholars who have succeeded in this broader fashion (say, Catharine MacKinnon) have succeeded in this goal more as moral entrepreneurs than as legal scholars as such.  Not to say their scholarship hasn't been important, but it has been successful in this goal of changing the world because it has adopted strategies from outside of legal scholarship.  So it is not clear that they should care about being or remaining legal scholars except to the extent that it serves the practical goal of having a desk, a salary, and some authority to add to their arguments -- all of which might be outweighed by the possible benefits of becoming full-time moral entrepreneurs.  Some senior faculty at major law schools indeed seem to me to have dropped out of legal scholarship as such to become full-time moral entrepreneurs, public intellectuals, etc.  In short, if you write to "change the world," in a big sense, as one scholar once wrote, it seems to me you may be in the wrong business, at least if that, and not some combination of that and personal concerns like prestige and luxury, is your real goal.

The bind is even greater for those who only want to have an immediate practical impact on legal reform -- a better UCC, a better approach to child abduction cases, better employment discrimination law, etc.  If their goals are really that practical, they must realize that few interventions in this area that take the form of legal scholarship are likely to succeed for a variety of practical and material reasons.  So, if that is their goal, they must consider whether they would in fact have more of a positive impact on the world and on legal reform if they abandoned the academy entirely to become criminal lawyers, corporate lawyers, lobbyists, politicians or political aides, and so on.  Perhaps they conclude that they would in fact be worse at being, say, criminal defense lawyers, than at just writing about criminal law, even on a practical level.  And they may be right!  Not every legal scholar is a great practicing lawyer who just happened to want to be a scholar instead; some of us are in fact playing to our strengths and avoiding our weaknesses when we leave practice for the academy.  But this should lead them to be very modest in their hopes for what legal scholarship can achieve, and very tolerant toward the work of other scholars.  Or perhaps they just conclude that, even if they could do more good as criminal lawyers than as criminal law scholars, they like their creature comforts more than they like changing the world or some corner of the law.  That's fine too -- in fact, I think it is often the case for law reform-minded academics, however high-minded their public justifications may be -- but these people too should be very cautious about trying to justify the "who cares" questions on practical grounds.  I think, in fact, that for the truly practical, law reform-oriented scholar, they really should ask the question why they are still legal scholars every day, and in many cases should conclude, at least if they put aside selfish concerns like having a nice office and being called "Professor," that they would achieve more in the world if they quit legal academics and got (back) into the trenches.  

In either case, Marc's answer to this form of "who cares" question ought to be something like: if you mean, will it change the world, ultimately it probably won't, and in an immediate sense it almost certainly won't.  To which he should add, perhaps sotto voce, "Hypocrite lecteur -- mon sembable -- mon frere!"  

Then there are those who ask the "who cares" question in a more abstract sense, and about more abstract scholarship.  This seems to me to be a better way of asking the question.  But what do we mean by "who cares" in this more abstract sense?  This can have at least two possible meanings.  The first has to do with normative implications.  Some legal scholars (still! -- and I know one of my co-bloggers is one of them) insist that legal scholarship, even of a more abstract kind, must have a normative payoff, and that purely descriptive legal work is somehow deficient.  I can understand this as a taste or preference, but I really don't understand it as a strong "who cares" argument.  If you are genuinely not one of the practical "who cares" types, then why should you care, except as a matter of personal preference, that some otherwise excellent work doesn't have a normative payoff?  If you still do, aren't you really just a warmed-over practical-who-cares person, and one who has, at that, by already taking the leap to accepting more abstract or theoretical work, already put yourself at a further remove from any likely practical payoff?  

The other possibility is that this non-practical interlocutor means "who cares" not in the sense of demanding a normative payoff, but just in the sense of asking, "Why should we care about this particular work, taking as a given that we require neither a practical payoff nor a normative stance?"  I doubt this was the position of Marc's interlocutor, but I think this is the kind of question that legal scholars (and scholars of all stripes) can and should ask themselves.  But as Marc has suggested, this form of inquiry depends very little on the existence of a particular "who" who is around to "care," and suggests a very capacious sense of what "caring" might mean.  It is really just a form of asking, as scholarship for scholarship's sake, is this work any good?  That, as I say, is a question we all should ask.  But it doesn't demand caring a fig for actual audiences or implications or payoffs.  It just demands that the puzzle you are working through be a worthy one, and that you work through it in a worthy way.  It should not be banal, or warmed-over, or redundant, or sloppy, although it need not fully answer any questions or suggest any payoffs.  It seems to me that to this kind of question, all Marc needs to answer is, not "who cares," but "This work is interesting because..." And, perhaps in addition or perhaps as an implicit part of that answer, "And the work is done in a worthy fashion because..."

Which leads me to a final question, this time aimed directly at Marc.  Given this, Marc, why should you care, except in an entirely understandable personal fashion, whether your work is put to harmful use?  Or, and I think you might accept it this way, does that question have anything to do with the "who cares" or "is it interesting" question?  You might not want to publish a paper called "How Rogue Nations Can Easily Obtain and Weaponize Nuclear Materials," but is that quite understandable unwillingness to publish relevant to the "who cares" question?