Is There Too Much Legal “Scholarship”?: A Quasi Economic Perspective

Is There Too Much Legal “Scholarship”?: A Quasi Economic Perspective 

PART 1 Introduction

Discussions about the value of legal scholarship lead to a cascading series of questions. These questions become more critical as the all important U.S. News and World Report law school ranking officials begin exploring ways to include scholarly impact in their calculations. First, what exactly is legal “scholarship” as opposed to other forms of writing by law professors?  Second, does the supply of legal scholarship exceed the demand?  Framing the question  this way will be unsettling to some but not if one thinks in terms of whether there is more “scholarship” than could possibly be useful. Third, what are the costs and qualities of legal scholarship? Fourth, what are the justifications for current levels of legal scholarship or writing generally?  Put differently, how do those who favor the current level of legal scholarship defend it against critics? Fifth, what accounts for the production of scholarship that, for the most part, does not increase overall welfare? Finally, is there a way out of that predicament? These questions are addressed below.  

A. Legal Scholarship and Legal Writing

              The unfortunate truth is that there is a shortage of legal scholarship but an overabundance of legal writing. Why is that? Law professors, as a general matter, are not trained to do scholarship and with a few exceptions, do not do it. Scholarship is characterized by research designed to discover answers no matter how inconvenient. Law professors tend to have a position and then write to promote it. This is sometimes characterized by the oxymoron “normative scholarship.” In short, they write to advocate positions. The critical distinction is this: The advocate knows the answer before starting to conduct research and write. The scholar does not know the answer and goes where the research takes him or her.

              This may seem like a slim distinction, but it is not. Writers of advocacy can be compared to expert witnesses who testify on one side or another of a case. Like expert witnesses, writers of “normative scholarship” offer opinions. Without getting into question of the ethics of expert witnesses, to some extent any expert witness bias is offset by cross-examination. Moreover, an opposing opinion is likely to be offered. In the case of law professors this is less likely to be true. The problem is compounded by the fact that advocacy, opinions, or normative scholarship by law professors is a form of subsidized speech and those who may hold opposing views are typically not beneficiaries of similar aid. In sum, in the case of legal scholarship there is less likely  to be the type of accountability that leads to rigor.

              This is not to say that all writing should be scholarship at the expense of all advocacy. In fact, it may be that true scholarship will lead to policy proposals that seem obvious. There is also a way for law schools and law reviews to overcome the anti-intellectualism of normative scholarship. Similar to the long gone Fairness Doctrine, law reviews that publish advocacy and law schools that sponsor advocacy speakers should go to whatever lengths are necessary to allow opposing viewpoints to be aired. The combination of the two viewpoints results in something comparable to what accomplished scholars should do. Instead, as currently conceived, it is difficult for two opposing normative views to be heard.  

              Another facet of the scholar/advocate distinction is that when people think of scholarship or advocacy they naturally think in terms of “producing” it. In other words, is there a written product? Scholarship does not require this outcome. Some of the most scholarly people do not write or, if they do, it is infrequent. Their scholarship may only be reflected in the quality of their teaching. Advocacy, unfortunately, may also be reflected in teaching but it can be likened to a form of exploiting the students. Those who confuse their own advocacy with scholarship seem likely to bring their own personal beliefs into the classroom because they confuse opinion with “truth.” Whether by their case selection, responses to questions, or observations by students, the advocacy mindset can mean that critical thinking and learning are discouraged.

              Before leaving the scholarship issue, one gap in the efforts of law professors is worth noting.  As far as I know the Journal of Legal Education is the only one devoted, at least in part, to teaching technique. Perhaps law professors read other journals or reviews that may carry an article from time to time about teaching. This has always struck me as a bit strange. Why is it that if you do well in law school you become qualified to teach? There are no courses on how to present material or on the reliability and validity of various testing techniques, yet law professors are quick to defend whatever they do with little or no support.  The issues range from the length of classes to different types of testing.  A number of factors affect teaching evaluations. What we do not know is whether high teaching evaluations are correlated with actual learning.   Perhaps these are not matters that law professors know how to address but that does not keep them from addressing virtually anything else and, to me, it is a sad commentary on the idea that scholarship should complement teaching when so little scholarship is devoted to teaching.

PART 2 The Author and the Audience: Supply, Demand, and Public Goods (coming soon).