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Tuesday, October 11, 2011

The Somewhat False Theory vs. Doctrine Split in Legal Scholarship

There is an interesting exchange in the comments to Lyrissa's post offering AALS interview tips.  One commenter, "Prawf-in-waiting," describes her (or his, but I'll use "her" for ease of reference) reluctance to enter the meat market as stemming from an uncertainty about whether it is possible for legal scholarship to "improve[ ] the law as applied to real people's lives."  She writes: "From the outside, it seems as though most law review articles at most contribute that an academics-only dialogue about the law--and that seems like a poor substitute for getting to improve real people's lives in practice. However, if I was able to write articles that tangibly moved the law forward in a practical sense, then pursing a legal academic career might be sensible."  She elaborates that her "quandary concerns the academy's evolution away from doctrinally oriented scholarship."  She wonders whether

legal scholarship is destined to have decreasing influence on the law, because legal academia as a whole is willfully opting out of participation in the practical (but still intellectually intense!) dialogue between appellate practitioners and judges. For me, the quandary is that if I became an academic, I would want to continue to participate in this exchange of ideas related to concrete issues pending before the courts -- and my impression is that doctrinally-focused writing would bode poorly for my chances of getting tenure.

The other side of things is represented by commenter TJ, who argues (in brief) that doctrinal work can be valuable but can also take you only so far, and that more theoretical or interdisciplinary work is often necessary to really make something of a doctrinal question. TJ adds:  "In the end, though, it sounds like you like doing what appellate lawyers do. And if so, there is no reason for you to change jobs. What law professors do is different, and so you will probably not like it as much."

Obviously, this is an age-old debate, but it's interestingly put here, not least because the first commenter appears to have a serious and sincere conflict about whether her place is in the legal academy or not.  I suppose one answer to that question is a quote from the movie Frida: "If you're a real painter, you'll paint because you can't live without painting."  (And that involves more than scholarship: scholarship is part of our vocation, but so is teaching.)  But that hardly seems enough of an answer.  (Frida's response to that advice: "I have to work to earn a living, so I don't have time to fool around just for vanity.")  What advice might we give the commenter?

Well, for starters, I think it's a mistake to think of the "doctrinal vs. theoretical scholarship" question as completely binary, as an either/or question.  There is more than one way to be a legal academic, more than one way to write, more than one place to do it in, and more than one way to influence the development of the law.  Among other things, as TJ points out, a good deal of legal scholarship (sometimes to its detriment, sometimes not) exists at a middle level, somewhere between pure doctrine and pure theory or empirics, interdisciplinary work, etc.  

Even if you posit a clearer split between the two, there's no law that says you can't do both on different occasions.  Many tenure pieces are still pretty doctrinal; while there may be a difference between a well-executed scholarly doctrinal piece and a more ALI-ABA-ish piece, it is certainly possible to write a doctrinal piece that gets full credit for tenure purposes.  And, of course, it's always possible to divide one's time between more immediate doctrinal pieces, perhaps for other publications besides law journals, and pieces that are more suited for law reviews.  There's no requirement that one choose once and for all to do one or the other.  Moreover, some schools will give more credit for more doctrinal or practical pieces than other schools might, although I think that's less true than it used to be.  Prawf-in-waiting observes that she is dissatisfied with some of the more practical or doctrinal work out there in law reviews, which can often be out-of-date or insufficiently in touch with current law.  Fair enough, but that can be a spur to do it better, not to stop doing it at all.   

Of course, there's still the question whether Prawf-in-waiting really wants to do both.  What I would say here is that I think many legal academics, and Prawf-in-waiting might find too, that examining doctrinal problems often leads one to bigger and often more theoretical or empirical issues.  Let's say you have a doctrinal issue on which there are opposing lines of authority, both of which are reasonably plausible.  What tools will allow you to crack open or resolve the difficulty, besides just saying "choose A, not B, because it's more just, or because I flipped a coin?"  You will end up dealing with the competing values involved; or the competing theories that lie behind both lines; or competing views about institutional competence and which rule is better suited for which actor; and so on.  Or you will decide that the doctrinal debate can best be understood by looking at history, policy, economics, and so on.  Or you will want to learn more about the real-world effects of choosing one or the other approach, which can lead to empirical studies, comparative law, etc.  No matter how close to the ground you start, the more interested you are in the question and dogged and honest in pursuing it wherever it leads, the more likely you are to end up with some big questions.

There are some nice examples of this tendency.  Look at Joseph Vining's recent article, "The Filaments of the Vicarious," 55 Vill. L. Rev. 1089 (2010).  No one would describe most of Vining's work as doctrinal.  But his work as an academic began with some very concrete practical questions, drawn from his practice experience.  From that practical beginning, he was drawn inexorably upward and outward.  Or look at Stephen Breyer's recent look back at his first article.  Granted, as he tells the story, he wrote it to get tenure, not to change the law as such.  But he too started with a practical issue, drawn largely from practice, and ended up wanting to show that economics has a "serious use" in copyright law.  My first piece on First Amendment institutions had to do with a narrow question: what happens to specific legal questions (say, the use of hate speech codes by public universities) if we take seriously what the Supreme Court had to say about the First Amendment underpinnings of Grutter v. Bollinger.  Here, too, I found that that interest led me ever outward, to places I didn't necessarily expect to reach.  

It's true that the further outward you go, the less likely you are to have an immediate impact on the law as a concrete matter.  (But see this recent study.)  Prawf-in-waiting sees this as a dilemma and is perfectly entitled to do so--although, again, there's no reason she can't do both.  But my point is that, taking her interest in having an influence on the law through straightforward doctrinal work as a starting point, she may find that the kinds of questions she's interested in now will lead to more and more questions, and to more and different tools for examining those questions, as an organic matter rather than for reasons of tenure or professional advancement.  For me at least, that's one of the joys of the scholar's life.  She is fully entitled to decide not to start down this path if she believes that this would not be a productive contribution of her own skills, so she's better off precommiting herself not to go down this path.  But she might also consider, in deciding what path to take, the possibility of surprising herself.

Although I do think that straight doctrinal work is valuable, and that it is possible even today to continue doing that kind of work as a legal scholar and attain professional security, I admit that I do believe that to follow the true scholar's vocation, one ought not to take changing the law, or the world, as a primary goal.  Others emphatically disagree with this, I should add, and some of them do great work by any standard, although I also think some of them end up kidding themselves about whether they are still changing the world, or, if they are serious about changing the world, could achieve that goal better in a non-academic position.  My point, I think, is that one must be willing to follow one's work wherever it leads, without immediate concern for whether it has an immediate practical impact or not.

In the end, I still find TJ's point perfectly valid: perhaps Prawf-in-waiting would be happier, or consider herself to have more impact on legal change, by not being a scholar, and if so it would be more than reasonable for her to remain in practice.  Better to think about that at the outset, surely.  I just want to suggest both that it is possible to continue doing doctrinal work even if one is a full-time legal scholar, and that Prawf-in-waiting may find that the concrete work she starts with may lead her to a different and broader set of questions and tools.  

I have said little in this post about teaching, but it's important to add two comments about that.  The first is that Prawf-in-waiting has addressed only the scholarship side of things, but also must consider whether she has a calling to teach.  The second is that, in truth, most of us, whether we write doctrinal pieces or more abstract pieces, will probably have more of an impact on the law through our students than through our scholarship.  It's a less predictable impact, to be sure, but it can be just as rewarding and far more important.        

 

 

Posted by Paul Horwitz on October 11, 2011 at 09:46 AM in Paul Horwitz | Permalink

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Comments

I don't think that you are ever going to be able to find a great way of measuring teaching potential in candidates who have never taught. Just as the academy once tried to use all sorts of proxies for scholarly ability only to come to a fairly broad consensus that the only real way to tell is by having a few articles, I think that the only real way to tell about teaching ability is by examining the results of at least a course or two. That should bias tenure track hiring towards candidates with prior teaching experience - through adjuncting, VAPs, undergraduate teaching as part of a Ph.D program, etc. A part of the package for consideration then could be the class evaluations from prior teaching engagements (if the prior institution is willing to make them available) or at least letters of recommendation from prior students.

For tenure decisions, the data is more readily available, but so long as most schools have the norm of tenuring almost everyone the emphasis needs to be there at the beginning.

I agree that some schools do put some weight on teaching, and I wouldn't want to suggest otherwise. I also agree that teaching is partly a skill that can be taught after the fact, though I'm not sure billing the client for on the job training is any more fair in the law school context than it is in the BigLaw context.

Posted by: Brad | Oct 12, 2011 11:50:33 AM

I agree with Brian, and I accept TJ's amendment. Regarding Brad's comments, I'm somewhere in between. I agree completely that "it is both frustrating and puzzling that ability and interest in teaching play such a small role in recruitment and employment decisions." They SHOULD play a greater role. We might think about ways in which we could encourage this: for instance, having students at the job-talk, or having candidates teach a practice class (a heavy burden to add in light of the status quo, but perhaps the benefits are worth the costs and we have a duty to do it regardless), or at the very least making sure students meet with the candidates during the day.

On the other hand, to say that schools do way too little on this front should not make us cynical about whether they do anything at all. (Not that Brad says this, but I add it for the benefit of others.) My own experience was that this may vary by school, and that schools below the top 25 may in some cases place some real emphasis on this--perhaps still not enough, but a real emphasis just the same. Even schools high up the food chain may care about this, because they have a teaching culture: certainly at Alabama teaching always comes up as a subject of discussion in hiring. Again, we could do more, but it is important to be critical and skeptical rather than merely cynical. I would also add that, assuming at least that a school hires with a threshold view in mind that the candidate must be capable of teaching reasonably well, a lot then depends on what the school does AFTER hiring to make sure those new entries have access to monitoring, mentoring, education, and other ways of learning about how to become a better teacher. Just to be clear, even if all I say is true, that doesn't mean we should not be doing more.

Posted by: Paul Horwitz | Oct 12, 2011 9:42:26 AM

Brad -- I think we just disagree on what the point is.

There are definitely courses where no deep knowledge is required, and the instructor (if they're a good teacher) could literally be one chapter ahead of the students in the textbook and be fine.

On the other hand, there are other courses -- courses that, in my opinion, address the really interesting questions rather than the boring baseline stuff -- where it's not so important that the instructor be a great "teacher" (where we understand that in the limited sense of being good at pedagogy independent of the material), and it's more important that the professor actually have interesting things to say about the subject and be able to carry on a conversation that goes beyond the recitation of core doctrine.

In my opinion, as a future consumer of law school services, an investment in the second kind of good teacher (and the fact that that person would also be a good teacher -- just for different things -- is why I object to statements like '90th percentile of scholarly ability, but the 10th percentile in teaching ability') is the better one for law schools to make. After 17 years of education, law students should be at the point where they can learn the shallower material largely on their own, with the instructor's role mainly relegated to structuring the class and guiding them to the important material. The deeper material, though, is where quality scholars can have a real impact on students.

--

There's also the point that I didn't bring up earlier, which is that scholarly prowess might be a better proxy for character traits that lead to a good teaching career than more directly teaching-related things. A person who demonstrates a real and deep interest in the law may be less likely to get burned out than someone who's just a good teacher. And scholarly success can demonstrate an ability to function well in a world with little oversight, which is important for tenured faculty.

Anyways, I fear we're getting pretty far away from the point of the post. I'll give you the last word if you want, but I'm not going to take up more room in this thread (and apologies for taking up so much already!)

Posted by: Andrew MacKie-Mason | Oct 12, 2011 1:32:44 AM

Paul, I basically agree with you (and made something of a similar point in my comment) that the split between theory and doctrine is exaggerated. For precisely that reason, I would contest putting me on one "side" of the split...

Posted by: TJ | Oct 11, 2011 7:03:02 PM

I guess what I'm saying is that while law school isn't an academic school, it shouldn't be 'professional' in the most extreme sense of the word. There's a place -- and, I would argue, a need -- for professors who will challenge their students to think about the law in a deeper fashion than reading and analyzing cases, even if most of those students won't end up being scholars themselves.

I think you've missed the point. In all but the rarest cases the best teachers are those who are great at teaching. The rare exception is where there simply don't exist any great teachers with adequate grasp of the material to teach it. The only time such a situation ever comes up in the law school context is where a professor, through hook or crook, manages to get his or her dream third year seminar put on the schedule (and trust me this is pretty difficult to do). I'm not - here - suggesting that law schools switch the relative weight they place on scholarship versus teaching in employment decisions for tenure track faculty, but rather that they move towards a more balanced approach. A professor in the 90th percentile of scholarly ability, but the 10th percentile in teaching ability is not going to make any student - no matter how precocious - better off for having had him for 1L torts as opposed to a different professor who is in the 50th percentile for both scholarship and teaching.

Posted by: Brad | Oct 11, 2011 5:31:08 PM

Brad,

Regarding the first bit, as I said, I have no personal information about that. Nor, I would point out, is even a 'broad consensus' on Prawfs necessarily good evidence for either position. But regardless, you may well be right that teaching isn't given enough due in hiring decisions; or, you may not be. My point was just that looking at it as a strict dichotomy isn't necessarily justified.

On the other more related point: I don't (yet) have specific experience with law school classes, but I can speak to your undergrad analogy. While it's true that "one need not be Erdos to teach Calc III," that obscures an important point: there are classes like Calculus that aim to impart a certain set of skills, and then there are classes (in math and elsewhere) that aim to teach a certain way of thinking and inculcate certain intellectual habits. The former category of classes is almost all about pedagogy, but being successful at teaching the latter requires a skill set that's more of a mix between scholar and teacher.

It may well be that most of the instructional *time* is spent on "low to mid level generalist material," but that doesn't necessarily mean that the greatest marginal benefit in teaching can come in getting optimal teachers for that material. In those sorts of classes, the instructor is a useful resource, but doesn't really bring much more to the table than the text or other resources do. On the other hand, especially if (to return to the point of the original post) you're interested in impact on the world through students, it seems likely that that impact would best be achieved through having people who can teach the generalist material but who are also able to usefully engage the rarer student who comes through looking for more.

I guess what I'm saying is that while law school isn't an academic school, it shouldn't be 'professional' in the most extreme sense of the word. There's a place -- and, I would argue, a need -- for professors who will challenge their students to think about the law in a deeper fashion than reading and analyzing cases, even if most of those students won't end up being scholars themselves.

Posted by: Andrew MacKie-Mason | Oct 11, 2011 5:11:55 PM

Andrew,

A couple of points:
-If you search the archives of this blog there have been several discussions of the role of teaching ability in hiring and tenure decisions. In at least one of those threads there seemed to be a broad consensus that teaching could neither make nor break a candidate in the tenure or hiring process, but that scholarship routinely did.

In my own personal observations I've come to the conclusion that teaching is never a 'plus' factor, and is only a 'minus' factor is particularly egregious cases.

- I think the way you use the term "postgraduate level" is at too high a level of generality to be useful. Professors in Ph.D granting programs, which by and large turn out scholars, are quite different from professors in professional programs, which by and large turn out practitioners. Because future scholars must work at the state of the art there is little choice but to study under the those actually working at the state of the art - no matter how poor their pedagogical skills. There may only be a handful of people in the world that could lead a seminar on e.g. Approaches to Proving the Riemann Hypothesis.

Professional schools, including law schools, on the other hand spend the vast bulk of instructional time on low to mid level generalist material. In that context, being a mediocre scholar is no barrier to being a great professor. The analogous situation is undergraduate education. One need not be Erdös to teach Calc III.

Posted by: Brad | Oct 11, 2011 4:37:20 PM

Brad: I have no knowledge about the specifics of recruiting and hiring, but I do think it's important to note that there's not necessarily a clear line between focusing on scholarship and focusing on teaching when making hiring decisions. It's legitimate (and I think correct) to believe that an important part of being a good teacher -- especially at the postgraduate level -- *is* being a good scholar, and being capable of and interested in engaging students on deeper issues than rote memorization of material. Of course, being a good scholar isn't sufficient to be a good teacher, but it's a part of it.

Posted by: Andrew MacKie-Mason | Oct 11, 2011 3:30:36 PM

Many prominent law professors are very much involved in "the exchange of ideas related to concrete issues pending before the courts." Consider Jack Balkin, Larry Tribe, Eugene Volokh, and Randy Barnett: All are fine academics who have written many academic articles, have tons of citations in journals, and that also comment on and influence the litigation of important pending cases (and have litigated some themselves).

Posted by: Orin Kerr | Oct 11, 2011 11:58:43 AM

I have said little in this post about teaching, but it's important to add two comments about that. The first is that Prawf-in-waiting has addressed only the scholarship side of things, but also must consider whether she has a calling to teach. The second is that, in truth, most of us, whether we write doctrinal pieces or more abstract pieces, will probably have more of an impact on the law through our students than through our scholarship. It's a less predictable impact, to be sure, but it can be just as rewarding and far more important.

Given that this sentiment is a least widely paid lip service to, it is both frustrating and puzzling that ability and interest in teaching play such a small role in recruitment and employment decisions.

Posted by: Brad | Oct 11, 2011 11:57:07 AM

I'm in agreement with Paul, especially with the last paragraph. This debate ought to account for the entire spectrum of law professor duties. These often include teaching doctrine, writing recommendations, developing CLEs, skills training, and providing ethics/moral education. To be sure, writing scholarship is a time consuming dimension of being a law professor, but it is among the least likely to influence the path of legal doctrine. Thus, it is unfair to say that it, alone, will marginalize law professors.

One small addition. Even if we limit ourselves to scholarship, we ought to consider that the discussion of "doctrine" in the other post was judge-centric. That is, we might be assuming that the single most important way to influence the law is to influence those formal organs that apply the law, and that we do this by discussing the authority that those organs tend to consider. For example, we could be assuming that we influence courts by discussing precedential cases. Of course, this is only one way to change the law--even though it is the one with which litigators are most familiar--and other approaches might make a greater impact.

Posted by: brian sheppard | Oct 11, 2011 10:30:40 AM

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