Saturday, August 13, 2011

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.


  1. Is your comment system broken?

  2. A huge component of this in the US is the fact that law schools have absolutely and entirely abdicated any role in training the next generation of law professors *as law professors*. Even if most new hires now have a Ph.D., it is almost certainly in a different discipline - economics, history, sociology, political science, etc. - rather than an advanced degree in law. The situation is the reverse outside of the United States, where law professors inevitably have Ph.D.s (or equivalents) from law faculties. This helps to create a genuine sense of community and discipline - we aren't just a bunch of interdisciplinary academics looking at the legal aspects of something else, but are legal academics in our own right.

    The US would do well to follow the leads of their Canadian, Australian, and British cousins and develop serious graduate programs (preferable granting a Ph.D. rather than the ridiculous S.J.D.) and take training the next generation of law professors upon ourselves. I suspect it would do wonders for the quality of research done within law schools, at least after an initial transition period.

  3. Separating the scholarship problem (what is wrong with legal academia and what to do about it) from the professional problem (what good is law school to lawyers), I agree that the scholarship problem emerges from the separation of legal scholars from purely academic departments. Most "law and" stuff could be written by people employed in a humanities department (economics, philosophy, whatever). However, if that is the case, then what is the justification for the salaries/benefits enjoyed by "law and" scholars as distinguished from other academics? A "scam" (if that is the right word) is that a historian specializing in 18th century political theory with a law degree and an appellate clerkship (or two) under her belt who teaches at a law school is compensated much more highly than a colleague in a history department -- though their scholarly output might be quite similar in subject matter and disposition. By "disposition" I mean that both scholars would primarily be exploring issues that they are interested in for their own sake without regard to follow-on practical application. The difference in compensation (and consequent (apparently)difference in tuition) must be justified by the law professor's contribution to the professional purpose of law school. And that leads to the professional problem (what good is law school to lawyers)...

    On that score, I write as a fairly recent law grad for whom things have worked out as promised (nice academic experience, very nice job, etc.), so I can't really complain too much about the professional problem. I certainly recognize that not enough law students share this experience to justify the system. But the proffesional problem boils down to cost of the degree and availability of jobs. The scholarship problem and the professional problem are only connected if, as you argue, the scholarship problem materially increases the cost of the degree (with a correspondingly inadequate contribution to the professional prospects of students).

    Separately, it seems to me that the silly student-run publishing system (I was a part of it) is at least somewhat suited to, and possibly a product of, "traditional" legal scholarship. It is least suited to "law and" scholarship because author credentials are very poor indicators of the quality of a "law and" article -- but generally a pretty decent indicator for traditional legal scholarship. Student editors are not sufficiently capable to make publishing decisions in a context where credentials are not reliable indicators of quality. Peer-reviewed journals would be necessary.

  4. What is interesting to me as a lawyer of three decades experience, is that as knowledge has gotten ever more available free as a result of modern electronics, formal education has become ever more costly. Goggle "Kahn Academy" to see what is out there for free, for example. This disconnect can't continue indefinitely and presumably exists only because of the guaranteed student loan programs.

    One of the very best and most successful trial lawyers I know graduated from a correspondence school from the days when such education was really conducted through the mail. If another lawyer - or judge - gets into big legal trouble of a criminal nature, this is the guy they go to. He is in solo practice. But this gentleman could never have worked his way up if he'd been saddled with massive student debt.

    In contrast, a judge told me a story of his law school days, where some students from his first tier university were arrested for participating in some sort of trendy protest and someone made the mistake of thinking that the criminal procedure professor could figure out how to get them freed on bail or O.R. in real life, as opposed to in theory. Finally to get the students out, someone had to consult a street lawyer in a storefront.

  5. What has to be the biggest challenge for law schools these days is finding people who are smart enough to become lawyers who are stupid enough to become lawyers.


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