April 29, 2013 by Tamara Piety
One thing we in academia are often hearing about from members of the bar and bench is how irrelevant much legal scholarship is for practice or how too much of legal education is “theory driven” instead of being “practical.” The Chief Justice himself has weighed in, suggesting that too often law reviews are filled with content he finds of little value. Many people have addressed this issue. For instance, there is this nice bit from Sherrilyn Ifill over at Concurring Opinions What the Chief Justice Should Read.
But it seemed worthwhile to weigh in again on this question since it is a complaint also raised in connection with the general fusillade of criticism launched at legal education, that is, that one reason legal education is too expensive is that professors spend too much time on this relatively worthless enterprise. I am not going to try to argue how much is the appropriate amount of time to spend on scholarship. But I do want to take issue with the issue of its worth as measured by its impact in the world. It has more impact than these criticisms reflect.
The criticism of scholarship is intertwined though with another criticism, this about the utility of practice to scholarship and teaching and whether law schools pay enough attention to practice in their hiring. That old canard, “those who can do and those who can’t teach” rears its ugly head in the comments section to the piece cited above. That too deserves some rebuttal and since it is connected I will address it first.
On the hiring issue, my sense is that most law professors have some practice experience. There is no question that practice experience is valued differently at different schools and it is probably the case that in most schools a very long period of time in practice may raise some concerns about whether someone can successfully transition to an academic position and be willing to, as it were, start at the bottom again as a junior member of a new profession (academic) after getting used to the prestige and authority of being a senior member of the profession of practicing law. But Jeff Lipshaw has words of wisdom for that transition (see his great article Memo to Lawyers ); and he and countless others have proven that it can be done. So the idea that practice experience is not valued is not true at the level of gross generality in which it is often repeated. – the cararicature of a professor who has no idea what it is like to practice law. It is simply not true in my experience.
Now admittedly, “my experience” is not a scientific study; but I have been a student, faculty member, visitor or fellow at a wide range of schools: University of Miami, Harvard Law School, Stanford Law School, University of Missouri-Columbia and FSU, in addition to my permanent position at University of Tulsa. And in all those places most (even if not all) of the faculty had some experience practicing law, often at a very high level.
But here’s the rub. Even if you have practice experience, at some point that experience will become stale. That is, your practice experience from 10 or 15 or 20 years ago undoubtedly continues to have relevance for your teaching and scholarship; but some of it is going to reflect a different world than the one your students enter. When I was in practice we still routinely dictated memos and pleadings. I don’t know if that is common now. The internet, email and electronic discovery/filing barely existed, even though word processing and computers did. Court reporters took most depositions and video depositions were the exception not the rule. Social media didn’t exist at all. Does that mean my practice experience is irrelevant? I hope not.
But even if all law schools suddenly made practice experience the sine qua non of hiring, that experience would soon become stale with the passage of time unless we continue to practice (and some do). Whether you think this is a bad thing may depend on what you skills and knowledge you think practice experience brings to teaching and scholarship. It could well be that the bits that degrade over time aren’t so critical to what you have to offer to students from your practice experience and so it doesn’t matter that it wasn’t very much or that at some point it will become stale.
Either way, given that it will inevitably grow stale, it is easy to understand why schools wouldn’t make practice experience the be all and end all of hiring. What they do clearly value is scholarship. Written work is one of the few things that it is possible to assess ex ante as opposed to ex post. (It is hard to assess in advance what sort of teacher someone will be.) We want professors to be productive scholars. Productivity is often a product of intellectual curiosity and enthusiasm. And that intellectual curiosity and enthusiasm often contributes to good teaching as well. So there is nothing particularly illegitimate that law professors, like professors in other fields, explore what is of interest to them without first considering whether it will be of interest to others, or more grandly, to the practice or even the world as a whole.
And that brings me back to the utility of scholarship. The idea that scholarship makes little or no contribution to the practice of law or society is simply not true. In saying this I do not mean to question the sincerity of those expressing contrary opinions. Perhaps critics are really responding to the great increase in quantity. Or maybe to the quantity compared to quality. Or maybe it reflects discomfort with the subjects – feminism or queer theory and isn’t really about relevance at all. I can’t really do more than speculate about the reason why this complaint has so much traction now. It is worth noting however that it is an old one and so not the product of some recent decline in standards or loss of focus. After all it was Fred Rodell who in 1936 wrote, “There are two things wrong with almost all legal writing. One is its style. The other is its content.” Goodbye to Law Reviews.
However, this complaint has new life and particular traction in light of the distress in legal education. So I want to offer a modest objection and corrective. This is only a partial list of examples of legal scholars who have influenced the law and society generally. It is by no means exhaustive, but I think it is sufficient to show that legal scholarship has had and continues to have an enormous impact on the law.
So here it is. I apologize in advance to anyone I may leave off of a particular subject and I hope readers will offer their own examples.
Let’s start with the “good old days”:
Felix Cohen – Indian Law
Karl Llewelyn – the U.U.C.
Von Mehren & Trautman – General and specific jurisdiction (hat tip to my colleague Chuck Adams for this one)
Berle & Means – corporate law, the agency problems and corporate purpose
“But,” perhaps, I hear you say, “that is precisely the point! Legal scholars used to contribute to the development of the law but they do not do so any more.”
So let me move to more recent examples:
Martin Redish – the commercial speech doctrine
Richard Posner, Calabresi, and a host of others – application of economic analysis to law of all types, torts, contracts, even First Amendment
Joseph Sax – Environmental law
Morton Horwitz, Lawrence Friedman – history and law
Duncan Kennedy, Peter Gabel and a host of others – CLS (which in turn was incredibly generative of a critical turn in law generally mcuh like economic analysis)
Catherine MacKinnon – sexual harassment
Lawrence Lessig/Jonathan Zitrrain – internet and IP
Richard Friedman – Confrontation Clause
Monahan & Walker – Social science and law
Saks, Kaye, Faigman, et al. – and forensic science and evidence
Cass Sunstein – punitive damages (and plenty more)
These are just a very few examples and they are rough abbreviations of subjects. (I trust people will feel free to add and correct as they see fit.) Even so, I think the list serves to make the point.
Moreover, even with such an illustrious list, if you look for evidence of these authors’ influence in reported decisions you won’t always find it there. I will use the example I know best. No one reading Martin Redish’s 1971 article, “The First Amendment in the Marketplace: Commercial Speech and the Value of Free Expression, 39 Geo. Wash. L. Rev. 429 (1971) can doubt that it influenced the 1976 Virginia Pharmacy decision, or at the very least those who argued the case. But the article was not cited in the opinion. Moreover, the article was written in 1971 but it is not until recently that the Court has come to more fully embrace the arguments there. It has only taken about 37 years.
This is but one example of a legal scholar having a profound influence on the law. But those two aspects of this example – the absence of citation and the range of time over which it took for its full influence to be felt – illustrate some of the pitfalls of trying to assess the “worth” of scholarly activity by its immediate utility to practioners or by citation counts. Sometimes good work takes a long time to make its impact felt. Sometimes it may be adopted quickly. Sometimes one’s view about whether it is “good” is a normative matter or how you define “good.” But if “good” = “influential” there is no question that this peice was incredibly influential and thus very good indeed.
Normative disagreement with the substance of a field or an approach (which I thinks accounts for overlooking the contributions of CLS, CRT and feminist theory to offer only a few examples) does not mean it is not useful. I daresay the work of MacKinnon and others was very useful to Ann Hopkins and her attorneys.
I suspect there is plenty of work being produced now that is similarly useful but the utility of whichwe may not know for some time to come. I submit that in legal scholarship, just as in other research, it is very difficult to say in advance which theories will bear fruit and which will not, which are “useful” and which will be forgotten. And it may well be the case that a very great deal of work needs to be produced in order for any good work to be produced. But that inability to say in advance what is “useful” should not be a reason to abandon legal scholarship or to disregard its very profound and continuing influence on the law, even if that influence isn’t always immediately apparent.
This post was first published on The Faculty Lounge.