Legal Scholarship: Part I

If tenured law professors are averaging about an hour a day over the course of a 250-day work year on preparing for and teaching their classes, what else are they doing with their time? Most ABA-accredited law schools are units within research universities, and research universities usually have formal rules that count teaching and "research and creative work" equally in the tenure and evaluation process. In fact at the most elite universities, and to a lesser extent at the law schools within such universities, these formal rules are routinely ignored.  As I once heard a famous law school dean put it: "At Yale, teaching is like hitting a home run at the faculty softball picnic. Your career here will be based on what we think of your scholarship. And if you hit a home run at the faculty softball picnic, well that's nice too."  I say "to a lesser extent," because when it comes to academic standards, law schools sit uneasily within the American university system.

This is in large part a function of history.  Until relatively recently, even at the most prestigious universities, law schools were treated as essentially (a) trade schools; and (b) cash cows, by the rest of the university in general, and by central administration in particular.  In short, even the most intellectually ambitious institutions didn't take their law schools seriously as academic units. And on the whole, with rare exceptions, the law schools were happy enough not to be taken seriously.  Even at top schools professors were expected to produce not much more than a "tenure piece" -- an extended piece of writing that would confirm the modest academic bona fides required of a law faculty member. If they published little or nothing subsequently, this was hardly looked down on. Law professors were expected to focus on teaching, bar work, law reform, etc., rather than engaging in the sort of sustained academic inquiry found in other units of the same universities.

I'm generalizing of course. There were occasional outbursts of sustained academic ambition at a few schools, such as Yale and Columbia in the 1920s and 1930s, and Chicago after World War II. But these were very much the exception, even at elite universities. As for law schools at less prestigious institutions, even these  modest scholarly ambitions would have seemed, until quite recently, extreme. At the vast majority of law schools, writing scholarship at all, after publishing whatever pro forma work was necessary to clear the university's tenure bar (which at such schools was placed helpfully on the ground) was considered something of a quirk at best, if not an act of subversion in regard to institutional morale. My own school has a typical history in this regard: located within a good regional university with some nationally recognized departments, the law school's scholarly ambitions were, until the 1980s, completely non-existent. People who wanted to do serious academic work invariably left if they could.

Part of the reason almost no one, either inside or outside legal academia, took legal scholarship seriously was the legal academic publication system.  In a unique twist for what was purportedly a scholarly discipline in  the American university system, legal academia has never developed any kind of general peer review publication process. Even today almost all legal academic journals are run by law students, who select and edit the work published in them.  This system, which naturally fills other academics with shock and awe, actually made a certain degree of sense under the old law school dispensation. Until about 40 years ago, practically all scholarship published by American legal academics was strictly and narrowly doctrinal.  There were very occasional exceptions, but aside from these, the typical law review article was essentially a more sophisticated version of the student "notes" published in the same journals.  For all practical purposes legal scholarship meant doctrinal legal scholarship, and its intellectual ambitions were, as Richard Posner (one of the leaders of the first wave of "law and" scholars who rebelled against this model) has often pointed out, quite modest. The articles law professors wrote were almost always extensions of the same sort of doctrinal vision of "the law" that dominated the classes they taught. Under such circumstances, it was not completely absurd for law students to be the gate keepers to legal academic publication.

In short, the typical law review article was a kind of first cousin to the brief or bench memo. It was an artifact of a system in which law professors saw their main scholarly task, to the extent they had one, as helping judges to decide cases correctly.  This made sense given that law schools self-identified strongly as sites for professional training rather than places for ambitious academic inquiry of a more general sort. It also made sense given that very few law faculty had any academic training beyond their undergraduate and law degrees -- and again their legal education had almost always been "practical" rather than academic (Actually it had been, as it remains today, almost completely impractical in terms of teaching law students anything about practicing law, but in this context "practical" has always meant "doctrinal.").

All this began to change in the 1970s.  For complex social, economic, and political reasons, the more prestigious law schools suddenly began to find their faculties filled with young people interested in, or more precisely, interested in creating, such sub-fields and law and economics, critical legal studies, feminist jurisprudence, law and literature, and eventually quite a few other varieties of what came to be known as "law and."   Because law in general, and legal academia in particular, is such a strongly hierarchical set of institutions, this development had an inevitable ripple effect throughout the legal academy. By the mid to late 1980s even quite middling law schools that had never had anything resembling true academic ambitions for their faculty began to act as if it were important that those faculties be staffed by people who could, as they say in academia, make "an original contribution the literature."

This led to changes in hiring practices -- changes that were more pronounced at elite schools, but could be seen to lesser extents well down the legal academic Great Chain of Being.  It began to become common to hire entry level faculty with advanced degrees other than a JD, and to pay less attention than ever (not that much had been paid in the past) to whether entry level hires had practiced much law.  More attention was paid to whether candidates had published something, and to whether they supposedly had "scholarly potential."  At many schools the tenure process, which had been largely pro forma up till then, began to include actual publication demands that went beyond "the tenure piece." Again, all this was much more pronounced the higher one went in the hierarchy, but, in a development that has had enormous economic consequences for the latest generations of law students, a very large number of law schools decided that, if the Harvard Law School was going to start acting more like the Harvard history department, then the Pretty Good Law School in Flyover Country was going to start acting more like the Harvard Law School.

What those consequences have been, and what law students are getting from this relatively recent commitment (or supposed commitment) to academic seriousness on the part of law schools, will be the subject of another post.