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Friday, February 04, 2011

Legal Scholarship as an Independent Discipline

Legal academia has a bit of an identity problem--namely, it's not really clear what the ideal form of legal scholarship is. This is not a struggle law has dealt with alone. Many subjects in recent decades have developed a case of "science envy"--a concern that there is no particular standard method which can form the basis of normative rules for scholars in that discipline about how their work is to be done--and have as a result cast about "borrowing" from other fields for tools and insights to better ground their own inquiries. For example, history has been struggling with this sort of conflict since at least 1980.

But legal academia's existential conflict goes even deeper. To the extent legal scholarship has a method--the legal method of analyzing cases and, more recently, interpretation of written rules such as statutes and constitutions--it's one that uncomfortably close for many legal academics to legal practice. Law review articles can't just be law office memos and briefs writ large, can they? The fear somewhere deep in the reptilian parts of our brains is that legal academics, well, just aren't really academics. They're lawyers with cushy jobs.

As a result, there has been an explosion of activity in recent decades of legal scholars shooting off in all different directions trying to establish colonies of legal scholarship grounded in other methods -- a bit like a well-fed spider plant. The idea is to avoid what lawyers do and try to do more what professors in other disciplines do--any other discipline. Economics, science, sociology, literature, political science, history, philosophy; as long as "law" is not in the title, it's fair game.

So I was particularly interested to read the very end of a recent paper Mark Tushnet posted on SSRN, recently, Harry Kalven and Kenneth Karst in the Supreme Court Review: Reflections after Fifty Years. Tushnet suggests that this casting about in other disciplines might be exactly the wrong move if law is to gain (maintain?) respectability as an academic discipline:

The issues Kalven and Karst discussed remain with us, but their sensibility has been lost. It would, I think, be good to retrieve it, but I wonder whether that is possible. An intellectually ambitious scholar today who is the same age as Kalven and Karst were when they wrote their articles would be well-advised--and I am sure is advised--to avoid doing "mere doctrinal work." Kalven and Karst were engaged with doctrine far more deeply than today’s scholars are. For obvious structural reasons those with dual degrees in law and some other discipline are unlikely to, and in my experience do not, achieve the heights that Kalven and Karst reached.104 But, only by reaching those heights can one truly appreciate the difficulties faced by "responsible men of affairs," and thereby achieve the detached sympathy that Kalven and Karst had for the Supreme Court and its work. That few scholars today have the capacity to do so is unfortunate.

104 Briefly: Although reasonably smart, well-trained lawyers can do doctrinal analysis to a decent level of sophistication, doing doctrinal analysis at the highest level is difficult indeed, requiring a fair amount of intellectual facility and a wide grasp of doctrine from many fields. Dividing one’s intellectual effort between acquiring facility in doctrinal analysis and achieving distinction in another discipline means that one will be unable to reach the heights of doctrinal analysis. And, on the other side, in every "other" discipline of which I am aware, the field "other discipline of law" (legal history, sociology of law, economics of law, and the like) is marginal to the discipline as a whole, which means that the most able graduate students will be drawn to the fields at the discipline’s core, leaving the subfield dealing with law populated by perfectly able but not truly exceptional students. (There are of course exceptions, quite rare in my experience.)

Jack of all trades, master of none.

Posted by Bruce Boyden on February 4, 2011 at 11:33 AM in Life of Law Schools | Permalink


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I'm glad I ran across this, it raises some interesting points that I hadn't really thought about. It seems to me that law has always and will always be viewed as dependent on other disciplines, and two in particular: political science and philosophy. It is dependent on political science because law is created through a political process, which is why laws can be vague, contradictory, or just plain silly. It is dependent on philosophy when one questions what laws should focus on (liberty vs. equality, for example) and when a law might be considered illegitimate. Perhaps it's my lack of expertise in the field, but I'm not sure how an in-depth study of law can avoid borrowing from these two other disciplines.

Posted by: Dan J | Feb 7, 2011 11:38:43 AM

To be clear, I don't necessarily endorse the observation expressed in the last two sentences of footnote 104 excerpted above -- I don't have much basis for pronouncing on such matters, although I suppose my default position is to be skeptical of impressionistic quality claims. I'm more interested in what comes before that.

Re: Tushnet, he doesn't comment specifically on his own experience with interdisciplinarity, but just a paragraph earlier he includes his younger self in his laments: "Perhaps it was not inevitable, but the rise of constitutional theory conduced to characterization of those who disagreed with the writer’s preferred constitutional theory as either fools or knaves: fools, because they lacked the intellectual capacity to understand the compelling logic of the arguments supporting the theory, or knaves, because, knowing that the theory was the best one available, they willfully disregarded it in the service of their personal projects.101 [n.101. I do not exempt myself from participation in the discourse of foolishness and knavery. For the most notorious example, see Mark Tushnet, Dia-Tribe, 78 Mich L Rev 694 (1980). I am older and, I hope, wiser now. (For that reason, I refrain from providing examples of the discourse of foolishness and knavery, but I do note that it is not confined to the academy but infects the Supreme Court itself.)]"

Posted by: Bruce Boyden | Feb 4, 2011 4:47:37 PM

Painting with a pretty broad brush aren't we? I think constitutional law certainly has some very core issues with method and doctrine, and the marginal utility of interdisciplinary methods is I think very easy to question there. At least to the extent that is had substantively moved the ball forward. But all areas of law?

Plus, the stab at younger scholars is again unfair. I've pulled a few fine grad students into the law over the years, so perhaps I am biased. But at this point in time, if you have been on a hiring committee anytime in the last decade it isn't very hard to read a CV and see how accomplished someone is in their other field.

And shouldn't this all have been contextualized within Tushnet's own work? His forays into legal history may not have been well received by legal historians but that is all the more reason he could at least mention the autobiographical angle. He has written in recent years about "comparative constitutionalism." Now there is a field where doctrinal has clear limits, and a lack of disciplinary training has been very evident in a lot of work.

Posted by: MiddleAgedNot SoFogey | Feb 4, 2011 2:46:56 PM

With respect to history's "science envy" and the desire to develop a science of history (and because I can't stop myself from plugging him whenever the occasion permits it), I think G.B. Vico's "The New Science" and the German historicists (Savigny, Dilthey, Droysen, Ranke, etc.) that followed were invested heavily in this fight.

Posted by: Marc DeGirolami | Feb 4, 2011 1:25:56 PM

I haven't read Collingwood (at least, not recently), but I'm not sure I agree. My understanding, developed from works like Peter Novick's "That Noble Dream" (linked above) as well as others that are escaping me is that while there has always been a debate over the proper historical method, even fierce debates, it didn't really seem like a crisis until the 1970s or so. Kalman's story is roughly the same for law, as I recall -- again, talking about something different than the debate over the proper analysis of law generated by the legal realists. I may have confused things by referring to "science envy," which has been around for a while in various humanities and social sciences and which there was a particular wave of in the 1920s and 1930s, influenced I think by the positivists.

Posted by: Bruce Boyden | Feb 4, 2011 12:58:12 PM

For example, history has been struggling with this sort of conflict since at least 1980.

I don't know how relevant it is to evaluating Tushnet's specific point (which I'd want to think more about before forming an opinion on), but it's clear from reading things like R.G. Collingwood's _The Idea of History_ that this has been the case, or "the problem", for history since its very start. That makes me suspect that it's probably not really a problem at a very deep level, and that movement between different methodologies over time (perhaps even cyclically) is normal and perhaps healthy. (This may well apply to law, too.)

Posted by: Matt | Feb 4, 2011 11:56:46 AM

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