November 21, 2011
The Real Problem with Legal Scholarship
The legal blogs are afire (see our very own Jeremy Telman's post here, and others here , here and here ) about this article about the impracticability of the law school curriculum. The article takes aim at “chin-stroking scholarship” that supposedly “nobody” reads. I'm puzzled about labeling scholarship as worthless because it's not more widely read - that doesn't necessarily reflect the potential value of the article. The article grossly over generalizes the nature of legal scholarship. Maybe it’s my chosen areas (contracts and cyberlaw), but most of what I read --and yes, I do read a lot of law review articles-- tackles real world, sticky social and legal issues caused by technological developments and contemplates possible solutions based on (surprise!) legal doctrine. Theoretical articles, as we contracts profs know, shed light on the “why” questions and thus help in the application of doctrinal rules to novel situations. The bad rap that scholarship receives seems to come from a handful of articles which are published by a handful of journals that push the envelope and get all the attention of (some) journalists and (some) judges. (I’m not commenting about the articles cited in the NYT piece because, unlike the journalist, I try not to judge an article I haven’t read by its title). I don’t think that’s a problem in and of itself – not all of legal scholarship should be about real world solutions and what might seem like an outrageous, pie-in-the-sky idea now may not seem so outrageous in a few years. (The anti-intellectual criticisms in the article remind me of equally inane arguments about the irrelevance of a humanities curriculum, literary novels, classical music and art). What is problematic is when journalists or judges use a handful of articles as examples of what all law review articles are like. These folks just don’t know the good stuff that’s out there -- many articles do in fact explain doctrine, have at least the potential for practical application or contribute in some way to our understanding of the law. The fact that more articles don't get cited by courts is a shame and may reflect more about the elitist bent of (some) judges than it does about the nature of legal scholarship generally. The real problem with legal scholarship is that it's not more widely read. I think that more judges should read more legal scholarship, and in a wider variety of journals. Maybe then we wouldn’t have short-sighted, doctrinally confused cases like ProCD v. Zeidenberg – a case about which many of us contracts profs have written. Unfortunately, not enough courts seemed to have read those articles. Maybe the state of contract law would be better if they had.
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