by: Robin West and Danielle Citron

The scholarly mission of the legal academy is under attack from all corners. Critics include the universities in which law schools are housed, the legal profession and the bench, law scholars themselves, and cost-conscious critics. What are their gripes? And what is the value of legal scholarship?  

The Brief Against Legal Scholarship

Academic critics contend that legal scholarship is overly argumentative or too “normative,” simply stating what the law should be, as well as what the law is. It isn’t about pure scholarship’s pursuit of knowledge within the discipline of a recognized academic field. Critics from the bar and the judiciary proffer the opposite complaint: legal scholarship is too academic and not professional enough, enamored with fads, unmoored from any discipline and of little use to the practicing lawyer or sitting judge. Law schools’ legions of cost-conscious critics complain that paying high salaries to professors with low course loads drives up tuitions. Many professors themselves have serious misgivings about this scholarly enterprise. There is a grain of truth in all these complaints.

 

The Case for Legal Scholarship

But what of the rest of the critics’ brief?  What critics assail as weaknesses are also legal scholarship’s strengths. It is often normative, aiming to state what the law should be as well as to clarify what it is, but that does not strip it of scholarly value. Legal scholarship is more academic than writing briefs, but that does not negate its professional value. It lacks a unifying method and goal, but that does not make it undisciplined.

 

On Normativity

Most legal scholarship is produced in law schools that are part of universities committed to the pursuit of knowledge, but law schools are also part of a legal profession committed to, and even defined by, the ideal of justice. Scholarship reflects the legal academy’s dual identity. Normative legal scholarship aims to influence judges, lawyers, legislators or regulators to reform, interpret, or preserve existing law to make the world more just. Doctrinal scholarship aims for interpretations that show what actions justice requires or prohibits. Reformist legal scholarship aims to render the law more just not by interpreting pre-existing law, but by arguing for proposed legal reforms. The reformist scholar emphasizes claims of injustice or at least couples them with direct appeals to the common good or to public policy writ large. Normative scholarship is not bound by the same constraints as a judge’s opinion or a brief written for a client. It can range across entire swaths of law to address questions not posed by individual cases. It seeks fundamental changes in law, often over a long time frame, but not directly through filing a lawsuit.  Its impact is felt through the force of its argument on its readership, including students who become judicial clerks, lawyers, judges, and legislators. This scholarship rests on the understanding that the work of justice is squarely within the purview, and reach, of law. It also demonstrates that the work of the citizen-lawyer requires scholarly virtues: deep engagement and rigorous thought.

 

On Academic Esoterica

What of the complaint lodged by the bar and prominent members of the bench, including the Chief Justice of the Supreme Court that legal scholarship is too academic, faddish, and impractical? Here, too, beneath the pejorative undertone lies a substantial grain of truth. These complaints typically are lodged not at normative scholarship but those growing fields and sub-fields that critique law through the lens of other disciplines, drawn loosely from the social sciences or the humanities. Contemporary critical legal scholarship was triggered, or retriggered, by the Critical Legal Studies movement of the 1970s and 1980s, which leveled criticisms of the law from a moral or political perspective. Unhinged from the interpretive bent, it unleashed insights into such areas as how contract law might legitimate unjust distributions of wealth, status, or power, or how antidiscrimination law might give a gloss of fairness to ongoing racial subordination not motivated by bias. This scholarship found faults in existing law and legalism, without regard to whether the criticism led to discernible paths of immediate legal reform. Theoretical legal scholarship lays bare the foundations of law, exploring its history, political implications, coherence, and justice of alternatives. Theoretical scholarship might ask whether judges who held industrialists liable for disasters did so to shift tort toward an economic, deep pocket conception of responsibility, or whether they were influenced by the moral outrage of the citizenry who elected them.  Legal theorists ask what is the relation between the law we author and live by, and the ideals of justice we hold out for it.  Their questions are not fashioned for tomorrow’s lawsuit. Interdisciplinary scholarship includes well-established fields of legal history and legal philosophy, and newer ones that look at the law from the vantage of other disciplines such as economics, sociology, psychology, and religion. When judges, lawyers, and journalists rail against the excesses of legal scholarship, almost invariably they are referring to the non-normative scholarship. While it is easy to find concrete proof of the impact of normative legal scholarship – recognition that sexual harassment of women in the workplace was discrimination under Title VII of the Civil Rights Act of 1964 was debated, thought through and articulated by scholars before it was embraced by courts, legislators and regulators — there is no obvious, comparable use by lawyers, judges, lawmakers, or administrative agencies for non-normative legal scholarship. It does not follow, however, from a lack of citation in Supreme Court cases that non-normative scholarship lacks impact. Its impact is real although it is felt differently. It is impossible to gainsay the effect of the law and economics movement, on judges, regulators and legislators. Cost-benefit analysis now is woven into laws and regulations. Much of the analytic power of this legal academic movement has become conventional wisdom, which itself is now being re-thought and challenged by a new wave of scholars. Critical legal scholarship, decried for thirty years for its lack of utility, has inspired novel interpretations of seemingly settled doctrine by arguing that law is far less determinate than liberal legal orthodoxy held. An entire generation of students and others came to see redemptive possibilities in law that otherwise might have been foreclosed, such as deploying Title VII to take on the regulation of employees’ self-expression through dress and hair style. Legal theory often changes the way we experience law and our aspirations for it. Legal realism, a theoretical scholarly movement, made the political and moral case against a strict adherence to common law precedent or laissez faire constitutionalism. It changed our experience of law from something that supremely governs us to something we can democratically deploy as a tool for social justice. Non-normative scholarship plays a long game, not seeking to affect immediate court decisions or legislative enactments. Its impact is felt well down the road.

 

A World Without Legal Scholarship

The value of legal scholarship can best be appreciated by imagining a world without it. Law schools would train students, but less well. An exclusive focus on skills would leave out lessons on how to think, much less think like lawyers.  Law schools’ vision of law and lawyering would be stunted, limited by current practice and untempered by even a glancing acquaintance with other humanities and social sciences. We would lose the attention and loyalty of graduate students from other countries, who value their U.S. law degrees in part because of the breadth and depth of the deeply interdisciplinary legal education they find here – precisely because of the schools’ scholarly mission. Judges, legislators, and administrators might miss the critical commentary on law and its theoretical underpinnings far more than they realize. Without scholarship on gray areas, judges might render less thoughtful opinions. Lawmakers and administrators might not have had the benefit of richly developed work articulating the need for change to address injustice. Theories that have fundamentally changed our thinking about the law might not exist.  Judge Alex Kozinski has argued that “grand transformative ideas” always come from academia because legal scholars are uniquely suited to generate them and infuse courses with ideas that then become second nature to a generation of students who become practicing lawyers, judges, and administrators. Everyone involved in the legal enterprise—law schools and students, the practicing bar and clients, courts and law clerks, lawmakers and staff, administrative agencies and others — would be the poorer without legal scholarship.

 

Read More