Wednesday, March 11, 2015
Legal Scholarship, Suspending Disbelief, and Existential Questions
[I want to draw reader's attention to a thoughtful comment that you must click on to read.]
When Amy Mashburn and I wrote our article (more on this at the very bottom) about legal scholarship we anticipated some of the criticism and addressed it up front. We wrote about arguments based on academic freedom, comparisons with other disciplines, some kind of instinctive "I just know they are wrong," and the "you must be wrong because I can think of an exception."
I resisted all of that. Who, I thought, would try to justify the state of legal scholarship by saying other departments are just as bad or that he or she just "knows," it is influential or that we must be wrong because some articles are influential.Boy, was I wrong. Those types of arguments only magnify my concerns about legal scholarship.
As I understand it, the arguments would go like this:
1. If the history department is wasting money we should too.
2. I just know legal scholarship is influential (as long as someone else is paying 200-300 million a year for it).
3. If there are some influential articles, all should have been subsidized. (This actually is very much like an argument Richard Posner makes and which we deal with in our article.)
4. I don't think you should say this because it is really scaring me.
So what is behind this squirming and the use of reasoning that would not pass a high school logic test? I think it is fundamentally the fear of an existential question. To avoid facing the question, all kinds of contrivances are employed. The most important one is suspending one's disbelief. To even entertain the possibility that most legal scholarship -- especially their own legal scholarship -- is not of much use is like looking into an abyss. The self-esteem of so many is wrapped up in believing they are special and that specialness is captured by how many second and third year law students say they are by publishing their articles and by how many other people in the very, very small law professor terrarium then download then or mention them in a footnote.
There is something almost sad about this (or maybe I am just falling in love). Suppose a law professor spent 40 years of his or her live teaching four classes a year and did not write a word of scholarship. If worth or value is measured by actually making a difference in someone's life, I think that law professor has made a bigger impression than 80% of those teaching two or three classes and churning out an article or two each year that very few people will read and no one will pay attention to. Sure, it is not as fun as research and writing but truly intellectually engaged people will do it anyway. And, it's a dilemma: Do you really want to make a difference or pretended that you do? I wonder when actually being effective and more valuable became a sign of failure?
Oh, one more thing. See that link up there where it says article. Please, please, please do not download it. Do you promise? Get a copy from someone else or I can email you one. That way we are free to say we just know we would have had 10,000 downloads -- instead of 12 -- and influenced thousands because, in the world of law profs, a lack of evidence proves something exists.