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The Changing Definition of Legal Scholarship

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The Touro Law Review has published an issue focusing on "Engaged Scholarship and the Changing Definition of Scholarly Work", which has been a rather hot topic lately in the legal blogosphere. The debate tends to focus on the question of legal scholarship's value. On the one side are the entrenched academics who argue that scholarship influences not just other scholars, but judges and practitioners, and also makes them better professors. On the other side are the reformers who assert that the vast majority of scholarship not only doesn't influence anyone, but is hardly read by anyone, and with such little impact it's probably not worth spending over half a billion dollars a year on. (That price would be roughly half of professor salaries, assuming they spend about half their time on scholarship. If you add in interest paid, since it's debt financed, you're looking at maybe three quarters of a billion.)

But today we're going to look at the debate in a different way. What if legal scholarship is just objectively bad?

In announcing the new Touro Law Review issue, Patricia Salkin write on The Faculty Lounge:

Arcila of Touro Law Center offers an introductory piece, The Future of Scholarship in Law Schools, beginning with a discussion of the scholarly obligation to engage in research and scholarship noting that despite the waves of anti-intellectualism, scholarship “…influences public and academic discourse, legislation, and judicial decisions, all of which guide our conduct.” He asserts that even with the increased emphasis on experiential legal education, scholarship deserves prominence not only because it is “central to the role of institutions of higher education as creators of knowledge and fonts of ideas about law’s role in society, government, and business,” but also because such efforts also help to inform our teaching role by deepening knowledge and thinking on the subject matters we teach.

If one were to reach Arcila's article, they would expect to find evidence that scholarship influences discourse, legislation, and judicial decisions. Looking at the article we can easily find the exact language Salkin quoted:

Waves of anti-intellectualism come and go.4 We are in the midst of one now, a wave whose crest may even have reached the highest levels of our judiciary.5 But it is undeniable that legal scholarship has had, and continues to have, an impact on the most important legal issues that confront us.6 It influences public and academic discourse, legislation, and judicial decisions, all of which guide our conduct.

In a debate over the impact of legal scholarship, in which one side is clearly denying the impact, it's pretty odd to call such impact undeniable. Of course it can be denied. One only need to spend a few minutes on The Faculty Lounge or PrawfsBlawg to see it being denied. The denial happens all the time. What's more interesting of course is if the deniers are in the right, or if they're ignoring what should be convincing evidence. So to that end, let's check out ol' footnote 6 there:

Professor Robert Condlin has usefully collected citations exemplifying “numerous contributions of legal scholarship to the development of law over the years,” in areas as important and diverse as privacy, tax, commodities trading, antitrust, property, environmental protection, copyright, consumer financial protection, product safety, “and dozens of others,” and also pointed to “the systemic contributions of [numerous other] scholars.” Robert J. Condlin, “Practice Ready Graduates”: A Millennialist Fantasy, 31 TOURO L. REV. 71, 80-81 n.28 (2014). The law and economics movement, including Coase’s Theorem and more, has had terrific influence.

Alrighty, off to Issue 31 to find Condlin's article. The language Arcila is quoting is actually from a footnote, and a whopper of a footnote at that! In fact, the majority of Condlin's article is footnote text, with several pages offering only a few lines of the essay itself. Here's the relevant excerpt from FN28:

In this same spirit, it depicts legal scholarship as a drag on education, adding to its cost without producing any corresponding benefit, ignoring the numerous contributions of legal scholarship to the development of law over the years. See, e.g., Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890) (privacy); Boris I. Bittker, Tax Shelters, Nonrecourse Debt, and the Crane Case, 33 TAX L. REV. 277 (1978) (tax); Saule T. Omarova, The Merchants of Wall Street: Banking, Commerce, and Commodities, 98 MINN. L. REV. 265 (2013) (commodities trading); ROBERT H. BORK, THE ANTITRUST PARADOX (2d ed. 1993) (antitrust); Charles A. Reich, The New Property, 73 YALE L. J. 733 (1964) (property); Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471 (1970) (environmental protection); Robert C. Denicola, Applied Art and Industrial Design: A Suggested Approach to Copyright in Useful Articles, 67 MINN. L. REV. 707 (1983) (copyright); Elizabeth Warren, Unsafe at Any Rate, DEMOCRACY, Summer 2007, available at http://www.democracyjournal.org/5/6528.php (consumer financial protection); GUIDO CALABRESI, THE COST OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS (1970) (product safety); and dozens of others. See THE CANON OF AMERICAN LEGAL THOUGHT (David Kennedy & William Fisher III eds., 2006) (describing twenty law review articles that have had a profound effect on the shape of American law and legal institutions); Michelle M. Harner & Jason A. Cantone, Is Legal Scholarship Out of Touch? An Empirical Analysis of the Use of Scholarship in Business Law Cases, 19 U. MIAMI BUS. L. REV. 1 (2011) (describing the influence of legal business law scholarship on the decisions of the Delaware Supreme Court). It also ignores the systemic contributions of scholars like Henry Hart and Albert Sachs, Mitchell Polinsky, Richard Posner, and numerous others, who changed the ways in which generations of judges and lawyers go about their business and think about law and legal institutions. Scholarship is the legal system’s seed corn, and destroying seed corn eventually makes an ecosystem uninhabitable.

So much text here, it's useful to remember how Arcila described this. It's a collection of citations exemplifying the numerous contributions of legal scholarship, and this collection is used to back up the claim that legal scholarship's past and continuing impact is undeniable. You know what's missing from the list though? The impact! Most of the list just references the articles themselves, and does nothing to demonstrate their impact. Consider the difference between these two statements:

Many people find hamburgers to be delicious and a great value. See, for example, Five Guys.

Many people find hamburgers to be delicious and a great value. See, for example, Zagat's review of Five Guys.

The first just says a burger place exists. The second points to a source that will speak to whether or not the burgers are delicious and a great value.

We're also going to note that not all of the authors are relevant to Arcila's argument. Samuel Warren, Louis Brandeis, and Albert Sachs weren't professors. Henry Hart is a poet and hasn't even written any legal scholarship. Perhaps Condlin meant Herbert Hart (better known as H. L. A. Hart). But back to the non-prof legal scholars. Yes, their work was impactful. But, the debate is over the value of scholarship produced within the academy. If practitioners or others want to write articles, no one is going to criticize them for doing so. They do it on their own time and dime. The debate is over scholarship produced by legal academics which is paid for with debt-financed student tuition dollars. Arcila even acknowledges that it's a debate over the academy, not about legal scholarship from other sources, saying "Although there are many ways of approaching this issue, fundamentally, it revolves around the future role of research and scholarship within law schools" (emphasis added). A list which includes (and even leads off with) non-professor articles actually helps to undermine the argument. If the academy was the only place producing scholarship there's a stronger argument in favor of it, but it's clearly not.

The Condlin list contains two other interesting entries though, two sources which purport to speak to the impact of legal scholarship. So now we need to dig into those two. First up, the Canon of American Legal Thought (and fyi, to all the novice writers out there, you can remove all caps when you're citing a source). Four of the articles is discusses are written by non law professors (we're not counting Coase because he became a law prof after writing his most influential work -- you don't get to hire someone after the fact and then claim his work as the work of your institution).

Next, the Harner and Cantone article on business law cases. Long story short, courts are generally citing legal articles less, but are citing specialty journals more. But that's not the end of the story. When it comes to citing specialty journals, courts are slightly more likely to cite a piece written by a practitioner than one written by a professor.

 

Let us once again return to Arcila's claim: "[I]t is undeniable that legal scholarship has had, and continues to have, an impact on the most important legal issues that confront us. It influences public and academic discourse, legislation, and judicial decisions, all of which guide our conduct." Her evidence is a list put together by Condlin which consists of three parts. First, Condlin's own list which fails to demonstrate any impact. Second, the Canon, which does demonstrate impact, but also acknowledges quite a bit of non-lawprof impact. And finally, the business law study, which acknowledges less impact generally, but more among specialty articles, but puts professor impact on par with practitioner impact.

Arcila's claim, while poorly sourced, is in fact true. Legal scholarship does have influence and impact. Kinda. Some legal scholarship has influence. Based on her sources, business specialists and a few dozen philosophers have impact. What she's failed to demonstrate is that the rank and file law professor's scholarship published in a typical law review will have any sort of meaningful impact. And that's what the debate is over. Not the existence of superstars, but the mass of profs consuming half a billion dollars a year in research.

And this brings us back to the initial point. We're not looking at the monetary value of Arcila's article, or the chance that it will help him in his teaching later on. We wanted an objective look. Objectively speaker, Arcila has made a claim which (1) does not speak to the debate, and (2) is poorly supported. Objectively, that is bad scholarship. So much for that "Changing Definition."


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