Engaged Scholarship: Meaning and Action

By Gerald Torres

At the risk of being accused of hubris I want to tell you all a secret. When I came into law teaching almost twenty-five years ago, one of the first things I noticed as I thumbed through the program book was the list of people who had served as president of this Association. I am not embarrassed to admit that it inspired in me a secret hope that I might one day serve as president of the Association and feel as though I had earned the right to join the list that I first surveyed so long ago.

Without wanting to venture an opinion on whether I have indeed earned it, let me say that I am deeply honored to find myself realizing that youthful fantasy. But let me also add that between those early days and today I have tried to be of varied service to this organization. That service has been gratifying. And it has given me an interesting perch from which to witness the continual evolution of both the Association and the law schools that it serves. We have moved quite far in the direction of being the learned society for legal academics, and we have continued to develop additional ways to be of service to both the law schools and the profession. Let me now address both some of where we have been, what we have accomplished and where we have still to go and can yet accomplish.

First, the leadership of the Executive Committee, the Standing Committees, the Sections, and the Committees devoted to professional development has been instrumental in making the AALS a learned society. However, to further enhance our role as a facilitator of scholarly legal inquiries, one thing I want to focus on will be ways to improve the information flows within the sections, and the AALS as a whole, in order to support and to augment the intellectual activities of the constituent faculties of our members.

Second, I do not think it an overstatement to say that some of the most important transformations in the profession are directly attributable to the role that the Association has played in mapping the contours of legal education. By working closely with the Bar we have helped structure a profession that can better serve the society and culture within which we live. As our society has become more complex and more diverse, we have worked with the Bar and other allied organizations to ensure that legal education serves the broad public functions that characterize the practice of law and the operation of our justice system.

Third, by claiming our rightful place within the University we have created a site where our practical discipline can engage the humanities generally as well as the social sciences and, more recently, engineering and the natural sciences in the study of law, legal institutions, and their role in creating and understanding the world we live in. It is the maturation of law as both an academic and a practical discipline that has been among the most interesting developments to watch.

It is a rare faculty today that does not recognize the importance to our students of familiarity with quantitative methodologies. The analytic rigor of quantitative disciplines has improved and changed the meaning of "thinking like a lawyer" without pretending that there is a substitute for art and craft in legal reasoning. Nor is this a matter solely of academic interest. High level practice required these changes, as well as the engagements with other disciplines, whether for complex business transactions, for calculating risk, for understanding the contours of representation in politics, or for understanding the ways that innovation in engineering make current environmental regulations problematic. The increasing global integration of our economies and of our political institutions requires that we be able to talk across disciplines as well as across cultures. In our own work, the insights and methodologies of other disciplines within the university contribute to our better understanding of the processes that are internal to law as well as to our understanding of the role of law in reflecting and responding to the felt necessities of our time. Yet there is still more to be done here.

The growth and evolution of law schools and of the academic lawyer are not limited to the response to practical needs of the profession. Law has always performed a kind of distillation process capturing the elements of the social contract that binds us together and illuminating the places of shared moral vision as well as the ragged edges of fundamental conflict. Law has in this way always been a reservoir of tradition, as well as the place where the elements and processes of change are mapped out.

I remember nodding in agreement with my teacher Grant Gilmore when he asserted that "law reflects, but does not determine the moral worth of a society."1 Yet for the academic lawyer, ensuring the quality of that reflection is in many ways our central obligation. Moreover, it is something we have the opportunity to help shape as well. As we perform that function, I think it is important to remember the admonition: "Bad law is the worst tyranny."

We can determine how we have discharged these obligations by approaching our work with a critical awareness of the kinds of institutions we create or participate in creating. We can also assess our success by critically evaluating our definition of the field of study that warrants our attention. This responsibility welds the practical to the academic and makes the consequences of our attention central to the disciplinary mission of academic legal studies. Stanley Fish, in another context, puts it this way:

The fact that an enterprise acquires an identity by winning a space at the table of enterprises does not determine the specific features of that identity. Within the space that has been secured, all questions, including questions touching on basic concepts, remain open. Nor are the boundaries between enterprises fixed and impermeable; negotiations on the borders go on continually, and at times border skirmishes can turn into large-scale territorial disputes in which the right of an enterprise to the space it has long occupied is hotly contested. At those times internal debates will focus on fundamental issues of self-definition, and when the debates are concluded, or rather, put temporarily to rest, the internal map of the enterprise will have been significantly altered, and the content of 'the kind of thing we do around here' will have changed.

What will not have changed, however...is the fact that a certain set of activities is still recognized as appropriate to this field. The enterprise will present itself, both to the outside world and to its members, as uniquely qualified to perform a specific task.2

Because law and legal institutions play specific, if changing, roles in our culture, society, polity, and economy, the academic lawyer must be in touch with what our profession claims are its unique tasks. The Association is a place where the debate about the content of our enterprise can take place, where the difficult job of speaking to multiple audiences at once can be reconciled and struggled over. Such a place for critical reflection is essential when the tensions of occupying both a practical and academic space are endemic to our enterprise. Importantly, the critical scrutiny of the law which I urge on us today holds the promise of not just better training for our students, but also of improving the quality of law making, whether as a legislative, interpretive, administrative, or adjudicative matter.

By moving away from the purely instrumental use of other disciplines we can engage them for what they tell us methodologically about our own project as well as how these disciplines inform our understanding of the broader context within which specifically legal questions can be answered.

This gets back to what I have described as our central scholarly obligation. Charles Black, another of my teachers, said that the art of legal argument is one in which reason is never out of contact with facts. Good legal argument requires that reason and facts be inextricably intertwined. These facts should not be only those that are consistent with existing legal categories or with the immanent intelligibility of law narrowly conceived, but also with an understanding that is historically situated and sensitive to the dangers of excessive reliance on abstraction. Such reliance robs the law of its capacity to illuminate the shared meaning necessary for regulating a massively diverse and complex people.

Meaning, of course, is tied to legitimacy. And the question of legitimacy is fundamentally a legal question. What Black and Gilmore taught me was that while law should be understood as having an immanent intelligibility, we need to be alert to the partiality that results if we limit our inquiry to questions of whether a particular narrative comports with the rationality of legal categories such that any argument from them would be intelligible within law. While that it is a necessary inquiry, by itself it tells us nothing about how the process of making law shapes that rationality or intelligibility and thus nothing about the culture within which law exists or how that culture itself informs conceptions of rationality. It also misses the ways in which the expression of law either as an aspiration or as a command or as a decision in a dispute creates meaning.

Because ours is a practical discipline there is a long tradition that grows out of the creative combination of scholarship and socially engaged practice. One way to assess the fruits of this engaged scholarship is the extent to which we avoid the "two cultures" problem highlighted by both Judge Harry Edwards and Dean Harry Wellington. As scholars, what our conversations with other disciplines encourage is a critical reflection on both the conceptual structure of law's claim to immanent rationality and the practical limitations that inhere in directly applying the results of these conversations at the level of the practice of law. Inter-disciplinarity can challenge us to see the relationships of scholarship to social problems so that we can use the insights of other disciplines to guide our own scholarly engagement with the questions of meaning that are at the heart of law and law's legitimacy. By this I mean that our place in the academy as well as in the world of practice requires us to take both the specific tasks of law as well as the specific tasks of other disciplines seriously. Engagement with other disciplines can flush out difficulties with our own scholarship as well as our understanding of the social and moral substrate upon which law rests. By taking other disciplines seriously on their own terms we can guard against the temptation to put them to unreflective service of what is rather than what ought to be. Such practice can help ensure not only that the reflection we offer of the law is accurate but, perhaps more importantly, that it is not one that inspires dismay but rather real commitment to our highest aspirations of justice and equality. At the basely functional level these critical conversations and deep engagement with other disciplines may also help us to identify the McGuffins in doctrine and to inquire about their true function. In short, these conversations are indispensable to the effort at law reform that is at the heart of the commitment "to improving the legal profession through education."

1Grant Gilmore, The Ages of American Law 110 (1977).
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2Stanley Fish, Professional Correctness: Literary Studies and Political Change 19 (1995).
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* This article appeared in the February 2004 AALS Newsletter.

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