Law and?

This is the last (for now) of a series of posts about scholarship and legal academia.  As I describe below, until fairly recently law professors on average produced little published writing in comparison to other faculty at research universities, and what they published tended to be "practical," rather than academic in a sense that would be recognized by the rest of the university. The typical law review article was a kind of glorified legal brief, and was published without the benefit of peer review, by authors who had no formal academic training beyond whatever they got as undergraduate and law students. Some aspects of this system began to change in the 1970s, with advent of so-called interdisciplinary scholarship.

Interdisciplinary scholarship became a significant factor in legal academia for a number of reasons, but the one I want to focus on here was the gradual loss of faith in law as what Richard Posner has called an "autonomous discipline."  The idea that it made sense to study law as a genuinely independent academic subject was, naturally, closely related to a belief in some at least moderately formal conception of law -- that law could not be reduced to politics by other means, and/or a series of economic transactions, and/or a sociologically interesting set of practices, and/or a secular substitute for religion, or what have you.  In other words, the belief that there really was such a thing as "the law," that couldn't be reduced to some combination of the social phenomena studied in other parts of the university, was critical to the academic (as opposed to merely practical) legitimation of the traditional doctrinal project to which the vast majority of legal academics who published anything at all were dedicated.

Of course this belief had been under attack almost since the founding of the modern American law school -- see for example Oliver Wendell Holmes' famous 1898 essay The Path of the Law -- but despite intermittent assaults by advocates of sociological jurisprudence and legal realism, it had proved remarkably durable.  That the belief served as an obvious justification for maintaining schools of law within research universities no doubt had something to do with the successful repulsion of intellectual attacks on it (As Upton Sinclair remarked, it is difficult to get a man to understand something when his salary depends on his not understanding it).

The 1970s saw a fresh wave of attacks on this faith in The Law, from across the political spectrum. On the right, Law and Economics aimed to undermine legal formalism, while from the left the Critical Legal Studies movement launched, polemically speaking at least, an all-out assault on it.  This intellectual bombardment softened up the beachheads of hiring committees, and all sorts of peculiar characters -- people who ten years earlier might have gone on to become English professors or economists or sociologists or anthropologists, or political scientists -- started infiltrating law school faculties.

The results for legal academia have been mixed.  On the one hand, as I noted below, it's clearly the case that law school faculties have more people of a genuine academic disposition on them than they did 40 years ago. On the other, the traditional doctrinal project -- the idea that law professors should be concerned mainly with determining what the law on any particular question "really is," so that they may then inform judges and other legal decision makers of their discoveries -- has continued to prove remarkably durable, and indeed remains the dominant conception of what legal scholarship should be about.

Everything else, which for convenience's sake can be referred to as "Law and," is still seen as, relatively speaking, ultimately somewhat marginal to the legal academic enterprise, and indeed interdisciplinary work tends to be welcomed only to the extent that it conforms itself to the prescriptive and utilitarian structure of the traditional doctrinal project (In other words it's OK to do legal sociology or legal philosophy or law and economics or law and literature, as long as you're still telling judges what to do).

This marginalizing of interdisciplinary work that doesn't conform to the prescriptive formalism which remains the dominant jurisprudential vision of law in American law schools has had bad effects.  For one thing, it makes it difficult for people who want to do serious academic work that makes no pretense of being helpful to judges to do it without having to justify their work in the face of the kind of anti-intellectual nonsense illustrated by John Roberts' recent comments on legal scholarship.  Yet it's perfectly understandable why law school faculties cling so fiercely to the doctrinal project.  After all, the doctrinal project -- the business of attempting to determine what the law "really is," so as to cleanse it of political, economic, and other social impurities and distortions -- is in the end the best, and indeed perhaps the only good, justification for universities to maintain schools of law as independent academic departments.

In other words, if law is ultimately nothing other than "law and" -- if law is not an autonomous entity, that cannot be explained fully as a subset of more general social, economic, and political practices -- then what is the justification for schools of law as freestanding academic departments within research universities? If studying law must in the end mean studying the economics of law and the sociology of law and the philosophy of law and law as literature and the politics of law, then doesn't it make more sense to have those inquiries conducted by economists and sociologists and political scientists and professors of philosophy and literature, rather than by pseudo-academics who got their jobs primarily by doing exceptionally well on issue spotting exams at elite law schools?

That uncomfortable question raises yet further questions about why law schools should be postgraduate university-based institutions at all -- questions which I'll explore in the context of discussing the future of legal education.