Thursday, October 24, 2013

The Actors, the Audience, and the Adversarial System : Are All Law Professors Anti Intellectual?

The recent New York Times article on the valulessness of law reviews set off a bit of discussion on my faculty and others.  The article is accurate. There are 6000-8000 articles published a year and, let's face it, may 10-12 new ideas a year. Nevertheless, many law professors, like trained seals, jumped to defend the status quo.  What is interesting about the defenses is how much they reflect problems in legal scholarship generally. They also reflect the tendency of law professors to suspend their disbelieve like an audience watching a play. Only in this case they are also the actors. Consequently the whole enterprise is like appauding oneself but never asking if anyone else wants to see the play.

This pretending is all part of the fundamentally anti intellectual nature of legal scholarship. Does this mean all law professors are anti intellectual? Actually no. Some are and some are not and some are some of the time depending on the topic. What do I mean by anti intellectual? Here are some characteristics of anti intellectualism all of which were revealed in one way or another in great law review debate:

1. Taking a position instinctively or for self interested reasons or because it is politically comfortable and then searching for support.
2. Citing something for a proposition that a careful read will show is not supported by that cite.
3. Believing that something is true simply because you think it is true.
4. Ad hominem arguments.
5. Relying on anecdotal evidence. This inclides making a statementsof fact and overusing the ever present  "see for example."
6. Not researching a topic because you might discover something that would be unacceptable to report and still be viewed by others as the right kind of person.
7. Writing about the same thing over and over.
8. Defending a defective system by reference to others that are arguably also defective.
9. Refuting an argument like that in the Times article by noting  exceptions. This one was a favorite of the legal scholarship defenders and is actually pretty embarrassing.

So what is up with this?  Part of it is that law professors as law professors do what they did when they practiced law. All of the things listed above can be found in many legal briefs or in oral arguments. They may be acceptable there  because it is supposedly an adversarial system. I do not want to call it all dishonest but some of it is but some is just aggressive representation. The notion of aggressive representation does not work so well in the context of scholarship. Somehow law professors are unable to or too lazy to recalibrat and understand that scholars do not treat legal topics like they are clients. (Of course sometime the professor is the implicit topic and then the possiblity of actual scholarship occurring is close to zero.) Nor do they seem to understand that conclusions follow from research not the other way around.

So, the actors act like they are doing scholarship and the audience applauds. The fact that virtually no one outside the realm of law professors cares to see the play is lost on them. And please, if someone comments on this do something other than cite an exception.


Fred said...

[Note: I have never read a piece of legal scholarship, so my comment is more of a question than a criticism]

Is it really true that intellectual legal scholarship is the exception? Perhaps anti-intellectual scholarship is the exception and the new york times article is just making the very mistake you want others to avoid (citing the exception).

Everything the article says makes sense, but I also see a number of anti intellectual characteristics in its writing:

- Is the writer not just believing that something is true simply because he thinks it is true.

-Or, relying on anecdotal evidence. (He cites a number of legal figureheads and if that's not anecdotal then I don't know what is.)

-Or, Citing something for a proposition that a careful read will show is not supported by that cite. (NYT writer claims the Loyola Survey demonstrates broad dissatisfaction but the LexisNexis Summary of the article shows "All three groups of respondents strongly favored students selecting and editing articles for law reviews")

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