The Old and the New: Legal Scholarship Has Certainly Changed
Legal scholarship saw a sea change, starting roughly in the 1970’s. Prior to that time, law professors would write articles, treatises, and books describing the state of specific areas of the law. Summarizing recently decided cases, legislative developments, and so on, the typical law professor would make a career of publishing a small number of writings that were intended to inform practitioners and courts about developments within various legal doctrines. Tenure at even the most elite institutions was based on a single “tenure piece,” a long law review article that was expected to establish the author’s mastery over a field of law.
While this was the norm in law schools, professors elsewhere in the universities were expected to generate much larger numbers of “original” contributions to their fields. Even lower-ranked economics departments, for example, often required six or more peer-reviewed publications before considering granting tenure to a younger professor. These publications were very much “inside jobs”—clear to those whose training equipped them to have these scholarly conversations, but incomprehensible to outsiders who had not been weaned on the field’s scholarly literature.
During the years following the ferment of the 1960’s, however, younger legal scholars began to chafe at the idea that their job was merely to become little more than summarizers of the law, experts in the nuts and bolts of legal doctrine as it currently exists, with precious little latitude to describe how the law could or should change.
New Tools for Answering New Questions: Policy Questions Require Knowledge that Cuts Across Disciplines
Once legal scholars began to think about what the law should become, rather than what it is, they quickly discovered that their established tools were incomplete, at best. Although former Justice Brandeis had blazed the trail toward using statistics and economics in thinking about legal and policy questions, few law schools had hired professors on the basis of their abilities in areas beyond legal doctrine, as very narrowly conceived.
In the decades since then, law schools have hired many people with formal training in academic fields outside of the law. This includes a small number of people with Ph.D.’s but no law degree; a larger number of people with law degrees and Ph.D.’s; and many more people with sub-Ph.D.-level training in various subjects, along with their law degrees. By design and by necessity, legal scholarship began to change, becoming much more “academic,” in the sense that it has begun to resemble in important ways scholarship in traditional scholarly fields like history, literature, the social sciences, and the natural sciences.
Any broad change in a field of study, of course, will invite special scrutiny. In this case, the courts have become especially perturbed by the movement of legal scholars away from their traditional role, regretting the loss of legal scholarship’s role as a source of guidance for the courts as they decide cases. The most recent such complaint was set forth by Judge Jose Cabranes of the U.S. Court of Appeals for the Second Circuit earlier this month. Cabranes described legal scholarship as having left terra firma in favor of outer space, adding, “Legal scholarship is a conversation among members of the academy with the rest of us reading—maybe.”
Such sarcasm is hardly unusual in attacks on legal scholarship. The judge’s key complaint, however, is clearly that law professors are no longer writing things that he and his colleagues find useful (or even interesting). While one can understand Judge Cabranes’s regret at seeing a familiar institution undergo change, however, it is hardly a condemnation of legal scholarship to say that law professors no longer serve as judges’ quasi-advisors. There are many other roles that legal scholars can fulfill.
Legal Scholarship for Policy Purposes: Combining Knowledge of the Law With Expertise in Other Fields Advances the Debate
If legal scholars, as a group, no longer serve the bench, whom do they serve? The short answer is: Society. Whereas we once were expected to produce scholarship that would allow judges to write better opinions, law professors now focus to a much larger extent on producing analytical and prescriptive writings that address all manner of social problems. Some scholars, moreover, produce scholarship that is intensely personal, informing policy debates only incidentally (and sometimes accidentally).
Not all scholarship in the law is good, nor should we expect it to be. As with other highly speculative ventures (oil drilling, Internet start-ups), much of the work of legal scholars (indeed, of all academics) can be expected to come up dry. Yet we press on, as we should. Constructive criticism allows us to adjust the parameters as to what types of scholarship will be rewarded, but it is simply not true that legal scholarship as a whole has become detached from reality, as some have charged.
Take, for example, my current working paper. My co-author (and fellow Verdict columnist) Michael Dorf and I are looking at the lessons to be learned from the debt-ceiling crisis last summer, and trying to understand the President’s options, should a similar crisis arise in the future (which, Republican leaders have made clear, is highly likely). Combining Professor Dorf’s expertise in constitutional law with my expertise in tax policy and economics, we are attempting to learn more about a question that might at first have seemed to be a matter of simply obeying the debt-ceiling statute.
Perhaps this example is too easy, however. Surely, legal scholars of the old school studied deep questions that went beyond mere court cases, especially when it came to questions regarding the separation of powers. Viewed in that way, our forthcoming article might be described as merely old-fashioned legal scholarship, as applied to Twenty-First Century problems. That such scholarship is still being produced is laudable, one might say, but maybe the judges who complain about the disconnect between reality and legal scholarship are simply talking about a body of scholarship to which our article is an exception.
In a Verdict column, of course, it is not possible or desirable to engage in statistical analysis of such claims. I can only say that, in my experience as an economics professor and now as a law professor, the vast majority of the work that I see is intensely tied to the real world. Legal scholars apply an impressive array of analytical methods, and the overwhelmingly bulk of legal scholarship is firmly based on planet Earth.
I again concede, of course, that some law review articles are less grounded than others. Some might even deserve to be called useless. Even some of the most notorious articles, however, can be seen to serve an important purpose in the creation of knowledge. One article, the entire title of which was one otherwise unprintable word, not only informed the debate about the nature of obscenity law (a debate as old-fashioned as it gets, in legal scholarship), but also, and more broadly, described the unique power of words to affect people’s reactions and behavior, while examining how social norms change.
If the accusation is: “Legal scholarship has become useless,” then the appropriate response is not, “All legal scholarship is immediately and obviously useful.” Subject to constant self-examination and outside review, however, the legal academy has created an environment in which useful scholarship is being produced in law schools across the country.
Is Legal Scholarship Redundant? Why Should Law Professors Write in Areas in Which Other Scholars Are Experts?
If legal scholars are no longer limiting their inquiries to traditionally legal subjects, however, is it not possible that they are merely becoming dilettantes, writing in areas where other “real” scholars should be allowed to proceed without being bothered by non-experts? Again, even setting aside the fact that many legal scholars actually are trained as experts in other fields, the answer is no.
Some questions, such as those surrounding the debt-ceiling debate, are truly interdisciplinary. Legal questions intermingle with economic questions, and some legal scholars make embarrassing errors in describing economic phenomena. Similarly, however, some economists make embarrassing statements about law. Two examples will illustrate the point.
First, in a book about law and economics, two economists were discussing the compensation of victims of injuries. Compensation in tort law has long been an obvious area of overlap between economics and law, and the scholars were attempting to make argue that a compensable injury must be serious enough to call for monetary damages. As a contrast to that point, the economists noted that some people feel so angry about certain situations that they feel outraged. But outrage, they assured readers, is not a valid basis in the law for compensation. What they apparently did not know, of course, was that the tort of “intentional infliction of emotional distress” is known officially in some states as the tort of “outrage.”
Second, whenever the subject of a constitutional amendment to balance the federal budget is discussed, one can always rely on a non-lawyer to ask: “Well, if Congress does not balance the budget, what happens then? Do we put them all in jail?” Not only have I heard economists say this, but before I earned my law degree, I was one of the economists who said it!
The point of both of these examples is that scholars who are not trained in the law can miss important points that lawyers would not miss. Moreover, mistakes such as those I described in both of those examples can ultimately lead to a cascade of additional mistakes about possible policy interventions, based on a one-dimensional view of the law.
Finally, it is important to understand that the scholarly conversations among historians, or among biologists, or among economists, are by their nature limited inquiries. That is, experts in a field are trained to set aside certain questions that might be important to their field as it applies to the real world, but that the field as a whole views as “off limits” to its internal scholarly discussions. These voluntary limitations can be based on the consensus that the questions are too difficult to answer, or a belief among the experts in the field that it would be a distraction from the current research agenda if every real-world consideration were to intrude upon the conversation. One of the most important roles that legal scholars play, therefore, is the role of the deliberate outsider, who can dare to ask the unacknowledged questions.
When economists talk about “efficiency,” for example, much is lost in translation. Even if economists know that they are ignoring important real-world facts (and many economists often seem not to realize that they are doing so), legal scholars are able to ask questions from a different perspective. Doing so often opens up the discussion in a way that avoids the mistakes that disciplinary tunnel-vision can cause.
By using our legal training and opportunistically using the knowledge and methods of other fields, we as legal scholars improve not just our own thinking, but potentially also the thinking in other academic fields. Ultimately, this improves the law, the policies that shape the law, and thus society as a whole. No group of academics can claim to directly make the world a better place every day, and through every published article, and legal scholars are no exception. Even so, our fundamental enterprise is unique, productive, and forward-looking.
Legal scholarship should and could be better. As it stands, however, it is quite good. Thus, it certainly does not deserve the scorn of judges or the public at large.
