Chauvin on Gap-Filling

Recommended! As befits a five-page paper, Noah Chauvin's abstract is short: "Legal scholars obsess with filling gaps in the literature. As this essay explains, that is a mistake." (I hope his next piece is on the undue expansion of the length of article abstracts and the reasons for that.)

Chauvin rightly focuses substantially on what I think of as means-of-production or (to use a trendy phrase with no more or less accuracy than characterizes some of its invocations) political-economy or economy-of-prestige reasons for the obsession, noting how much of it has to do with appealing to law review editors and/or gaming the system. One might, in Kerrian or Kerresque fashion, offer two charitable notes in favor of "gap-filling," however. The first is that, for even the academic reader of the published product, there is value in explaining clearly what the article does that has not already been done.

The second, notwithstanding Chauvin's argument that a gap-filling approach "hamstrings true creativity" because it is "reactive" and "inherently limiting," is that law is a technical discipline and a discipline about technicalities. There is thus often a genuine need to answer difficult, unanswered, potentially "small" questions. That's all the more true if, as Chauvin urges, legal scholars let fly with more imaginative or expansive projects, which inevitably will lead any number of real and important gaps to be filled. And the need is compounded by another political-economy phenomenon, which lies somewhere at the intersection of legal academics' desire to be fancily published, their capture by their own politics, and their unconscious tendency or open willingness to shape and distort their scholarship to achieve particular political results. This phenomenon is the tendency to sweep the hard questions or troubling implications created by their own arguments under the rug by describing them as "beyond the scope" (when they are actually within the articles' scope but politically inconvenient) or calling them questions "for another day" (which never seems to come around). Of course, one or both justifications depend on that being the actual reason for the gap-filling article, and on that article actually filling a gap, instead of simply saying it's filling a gap in order to get through the article review process. And anyone who has heard law professors in private settings describing the things they are willing or eager to do strategically to get an article published will find that there is such a thing as too much charity on these points. 

Chauvin notes correctly that there is a "robust tradition" of legal scholarship about legal scholarship. I wonder whether it is quite as robust these days. For one thing, it requires criticizing other scholarship, and both political siloing and the current trend of encouraging the idea of scholarship as a mutually supportive community--which often curdles into mutually supportive back-scratching and self-promotion-by-proxy, especially on social media, and which sometimes arguably lends support at the cost of failing to show the genuine respect that criticism entails--make that less likely. (I think this is one reason book reviews in law journals have become not only more rare but more awful.) For another, such pieces don't place as well, if at all, and, as Chauvin observes, a professionally advantageous placement is the name of the game. They do place in journals like the Journal of Legal Education, or at least used to, but I have seen fewer of those articles in the JLE of late. Finally, articles of this sort are typically short- or medium-length affairs, and--again, at least partly for political economy or economy of prestige reasons--legal academics are writing, and journals are running, fewer of those. Blogs used to help fill that gap, and Prawfs itself certainly has a robust tradition of posts on the subject; we would have run Chauvin's article as a post or series of posts just a few years ago and are happy to host him as a guest any time. Some of my favorite Mark Tushnet posts on Balkinization have been his brief and sharp observations about what he's seeing in the law reviews. But, you know, blogs. They're so 2011.

In any event, we need more of it, and specifically we need more scholarship about the trends and tics that characterize legal scholarship in the current age, which is at least as ambitious as ever without a willingness to say it's ambitious, and which is further untethered from a clear set of agreed-upon scholarly motives or practices.