Saturday, January 21, 2006

How To Do Legal Scholarship

Rosa Brooks at LawCulture recently posted a blog Goodbye to Law Reviews?. This post, which tweaks the name of a famous law review article by Fred Rodell, Goodbye to Law Reviews, 23 Va. L. Rev. 38 (1936), has precipitated a stream of comments, mostly by law teachers. Many of those comments are interesting -- to law teachers, in any event.

I won't try to participate in extensive and careful discussion of the many interesting points found in Rosa Brooks' original post and the comments on her blog site and elsewhere about her post. Nevertheless, I would like make to some scattered comments here:

1. "What is worthy legal scholarship?" and "What sorts of intellectual activities will enhance the career prospects of the actor?" are separate questions even if they are not (one hopes) completely unrelated.

2. Fashions in scholarship -- including legal scholarship - change, sometimes dramatically. For example, several decades ago substantial segments of both the right and the left in the U.S. legal academic world proclaimed that legal treatises are an inconsequential form of scholarship -- if, that is, legal treatises are scholarship at all.

  • But the left and the right differed on the appropriate alternative to the legal treatise. The right -- i.e., some prominent folks in the law and economics crowd -- preferred the monograph. And by "monograph" these folks were referring mainly to articles about 10-15 pages long published in peer review journals, mainly in journals that counted only economists as "peers." The left -- i.e., some prominent Critical Legal Studies people -- pooh-poohed (sp?) -- in law journals -- all forms of legal scholarship; the idea of scholarship was thought to be incoherent, nonsensical.)

  • Although it is no longer fashionable to sneer at legal treatises, publishers and other knowledgeable sources report that today it is difficult to recruit competent legal scholars to write or revise legal treatises.
  • 3. The comments on LawCulture and elsewhere generally assume that the possible contenders to the throne of scholarship are the following: law review articles, books, newspaper articles, and blogs. But this list of possibilities does not range widely enough and it is insufficiently refined.

  • "Books" should be divided (at least) into: (i) book-length monographs, (ii) mass market books, and (iii) legal treatises. Given my personal history, I am tempted to add (iv) "revisions of legal treatises." And I herewith do so. (This -- the revision -- is a form of scholarship that was well known in the middle ages and one that is still popular in the UK.)

  • We should think not just about "law reviews" as vehicles for scholarly articles. We should distinguish (as some bloggers did) between (i) student-edited U.S. law journals, (ii) peer review journals, (iii) "foreign" (e.g., Canadian ) law journals, and (iv) journals in other fields that welcome papers about legal topics.

  • Some forms of scholarship may not take the form of text. For example, it is possible that a software program is "scholarship," even legal scholarship. It is possible that a graph is scholarship. It is possible that a film is scholarship. It is possible that a painting is scholarship.
  • 4. Fashions in legal scholarship are not just fashions. Fashions in scholarship can do great damage to career prospects. The fashions that prevail in the "major" student-edited journals can do such damage -- principally because there are many narrow-minded, rankings-minded, and hierarchically-minded law teachers and deans who put a big premium on publication in such journals. But when faced with necessity one makes do! I would urge junior scholars to consider the legal treatise as an an alternative outlet for your creative and unconventional scholarly energies.
  • You have more freedom to make a legal treatise be what you want it to be.
  • If you want your treatise to be scholarly, original, and, yes, unconventional, you have the freedom to make your treatise be like that.
  • Keep in mind that many very intelligent people choose to practice rather than teach law. (It is even possible that there are more intelligent and talented people in law practice than in the law academy. Do not make the bad mistake of underestimating the intelligence of your audience.)
  • Keep in mind that books, more often than law journal articles, have an impact years and decades after publication.
  • Keep in mind that judges and legislators use legal treatises.
  • And keep in mind that legal treatises can generate substantial income for their authors.
  • But there are downsides for scholars who decide to write legal treatises. One very big downside is many law teachers -- the people who hold the academic fortunes of junior scholars in their hands -- read legal treatises in their field only years and, more often, only decades after publication -- and even then in many instances law teachers, lemming-like, read only short extracts from legal treatises. So the legal treatise offers no promise of a meteoric career in legal academia. But if a legal scholar has no choice, she or he does what is possible. And the legal treatise at least can have a very long shelf life and the renown it may bring may be some comfort to the legal scholar in the twilight of his or her professional life.

    5. The tastes of student editors of law journals are not the only reason why fashions in legal scholarship can stifle original thought and important new directions in research and scholarship. Fashions among one's peers can also have this perfidious effect. But fashions in scholarship can also stifle thought and originality because of the tendency of many scholars (perhaps particularly younger and therefore more vulnerable scholars) to internalize scholarly fashions -- to kowtow to academic fashion. My most heartfelt recommendation is that you write what you really think and believe and tell yourself to let the devil take the hindmost. If you adopt this attitude, there is no guarantee that you will say interesting things or that your peers will think that you have said interesting things. But the strategy of using your own compass (and shedding your fears) at least creates the possibility that you will do original work. And if you labor hard enough and long enough, the chances are excellent that you will in fact contribute in a significant way to humankind's understanding of the world. This is what I believe.

    6. Do keep in mind that it is possible to become a full-time author of legal treatises. Not many people manage to do this or want to do this. But it is a possibility, and it is a possibility worth thinking about.

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