From Jotwell: "Constitutional Scholactivism, Foreign and Domestic"

At Jotwell, I have a new jot discussing an article and reply to critics by Tarunabh Khaitan on the subject of "constitutional scholactivism." Khaitan defines scholactivism in a motive-centered way, as scholarship “distinguished by the existence of a motivation to directly pursue specific material outcomes.” He "emphasizes the difference between the scholactivist attempt to achieve 'direct, proximate, material [ ] impact through one’s scholarship,' and the scholarly motivation to seek 'merely discursive' impact." He carefully examines and critiques scholactivism and argues that even its supporters should be concerned about it for instrumental reasons.

In my jot, I commend Khaitan for being "willing to question scholactivism as such, regardless of its political valence, because that is just what a scholar does." And I argue, for familiar reasons that are usefully highlighted by being viewed through the lens of someone writing about legal scholarship norms outside the United States, that his concerns are especially relevant in this country:

Khaitan’s piece is particularly resonant for American scholars, perhaps in ways he didn’t anticipate. He writes that the nature of activism is “in tension with the academy’s need to provide time and distance for research and reflection, inculcate an attitude of skepticism, and reward truth-seekers and knowledge-creators.” Those tensions “put even a moderate scholactivist at risk of failure as a scholar.” The need to publish in a timely fashion to achieve specified goals may lead the scholactivist to, inter alia, “submit the paper to a non-peer-reviewed student-run law review known for its quick publishing decisions and for preferring practice-oriented novel claims over academic rigor.”

For Khaitan, these are perilous moves away from the rigor and role-morality of a true scholar. American legal scholars just call it Tuesday. Seeing these practices through the eye of a non-Stateside scholar reminds us just how few of the ordinary guardrails for serious scholarship are in place in the American legal academy. That strengthens Khaitan’s argument in the United States.

Some responses to Khaitan argue that if a scholactivist takes the short-cuts he worries about, the problem will cure itself, because such work either won’t be published or will be ignored. But the nature of the American legal academic enterprise—the vast number of journals, the reliance on student editors and absence of thorough peer review, the relative lack of political diversity and the two-solitudes relationship between contending sides, the reluctance to criticize the methodologies of one’s friends and allies—exacerbates the risks and weakens the safeguards that both Khaitan and his critics acknowledge. To the usual structural failings, we can add that the current crop of American student law review editors has a marked enthusiasm for scholactivism. They are thus likely to publish more of it, without being able to properly evaluate it (or any other scholarship) for rigor and integrity—and less likely to publish the few critiques of this approach that might emerge from the rather timid U.S. legal academy....

More at Jotwell. I would add two things here. First, time has caught up with one statement. I wrote that "at least at this moment, one will find no uses of the word 'scholactivism' in the Secondary Sources database on Westlaw. That was true up to the finalization of the draft, but there is now at least one passing reference. Second and related, there is definitely room for more, including both critical and supportive discussion. If, as I argue in the jot, 1) a lot of American law review articles (in constitutional law, certainly, but not limited to that subject) are scholactivist and 2) contemporary law review editors seem eager to champion this sort of goal-motivated scholarship--and I think most would agree with both statements--then those editors should, at a minimum, be looking for work that subjects this approach to close examination and critique. As the excerpt above and a number of my Prawfs posts have made clear, I think American law schools and professors, who alone are responsible for the structure and condition of their discipline, ought to do a lot more than that. Simply treating our field's journals and their editorial structure and decisions, bizarre as they may be compared to other academic disciplines, as something over which we have no control is a form of ongoing disciplinary abdication. 

This is just one aspect of a larger discussion in an interesting pair of articles. Read Khaitan! And by all means read the interesting responses his initial piece received, at least outside the United States.