The Two Legal Academies, Part II: Scholarship

In the first post in this series, I focused on how different the hiring market looks from the perspective of an unranked school compared to how it looks in the top schools.  The response I got on Twitter and through private correspondence suggests that a lot of people involved in hiring at unranked or lower-ranked schools feel the same way.  Today's post is about doing scholarship in The Other Legal Academy.  The last post will be about teaching in The Other Legal Academy.  In these posts, I am less confident than I was in the first that I speak for many others, but I think what I have to say will resonate with at least some of my colleagues in The Other Legal Academy.

I should start by thanking Orin Kerr (right), whose excellent podcast, The Legal Academy, helped me crystallize my thoughts on this subject.  That podcast featured interviews with some very accomplished law professors who described what it is like to work, teach, and do scholarship in The Legal Academy.  I love listening to such people.  They are inspiring, insightful, witty, and wise.  Each has a unique narrative.  But their lives and work overlap with mine only slightly.  I wrote to Orin and pointed out that there is a different legal academy out there.  Because his podcast was in part aimed at job candidates, I thought he should let them know that not every c.v. looks like that of Orin's first guest, Akhil Amar.  Professor Amar went from Yale College, directly into Yale Law School, directly to a Supreme Court clerkship, directly into teaching at Yale Law School, where he's been ever since, other than some guest teaching stints. [Correction: Professor Amar clerked for Stephen Breyer, but that was when he was Judge Breyer of the First Circuit -- thanks to Guha Krishnamurthi for that correction!]  Professor Amar has had an extraordinary career, but he may be the single least representative member of the legal academy.  Orin is a mensch, and he took my comments to heart, attempting to broaden his approach, but still, he did not manage to penetrate very deeply into my portion of the legal academy.  How could he?  The two legal academies meet fleetingly.  It would be hard for him to know whom to invite.  In one episode, with a guest who has taught at an unranked law school, Orin asked about that experience, but the guest either misunderstood the question or did not want to answer it.  The subject matter was never really explored.

I spoke with some friends about doing an alternative podcast called The Other Legal Academy, in which we would interview outstanding faculty members at lower-ranked schools.  I did not do it for two reasons.  First, I already have too much on my plate.  But that seems lame, given how incredibly busy, prolific, and productive people like Orin Kerr, Akhil Amar, Eric Segall, Will Baude & Dan Epps, Steve Vladek and Bobby Chesney, Felipe Jimenez, and the amazing Strict Scrutiny trio of Leah Littman, Melissa Murray, and Kate Shaw manage to find the time to make podcasts from which I have benefitted tremendously.  But the second reason is killer: very few people would care, for the same reason that very few people care about what I write as a legal scholar

Here is my main conclusion about doing scholarship in The Other Legal Academy.  You should do scholarship, and doing scholarship will keep you engaged in the law and contribute to your teaching.  It is best to do scholarship relevant to the subject matters you teach (or at least post on a blog on that subject).  But unless you are one of the few who can make the leap from the Other Legal Academy to The Legal Academy, do not expect that your scholarship will have an impact or even be read beyond a small circle.  My hypothetical podcast would have very few listeners for the same reason my scholarship has few readers: sitting as I do in The Other Legal Academy, I can't make my voice heard over the din of other high-quality scholarship out there.

I was, of course, disappointed early in my career, when I sent my babies off into the world and watched as they were neither nurtured nor savaged but left to waste away until totgeschwiegen.  Now I am resigned.  I write for myself and to better myself for my students.  I try to publish because I am vain enough to  crave affirmation.  I do not expect that my scholarship will change the world, even though I think the world would benefit from listening to my advice.  It is not that I think that people in The Legal Academy are snobs who wouldn't consider reading my work.  Most would and they sometimes do.  I have generally found that the people who are at the top of the heap in the legal academy are generous with their time, endlessly curious, and eager to engage.  But their time is limited, and there is so much other stuff for them to do and to read, much of it involving people with whom they regularly interact.  In addition, the people in The Legal Academy have to be up-to-date on what people are talking about, and they are not, for the most part, talking about scholarship that comes from The Other Legal Academy. 

I do regret that I don't think I will ever know if my scholarship is any good.  People are kind in The Other Legal Academy -- or avoidant -- and one rarely gets the kind of substantive feedback that I got when I had real academic mentors, e.g., in graduate school.  Sometimes when I submit my work for peer review, I get a taste, but that is a very small data set.   

I suspect that my skills as a scholar are in decline for reasons nicely illustrated in Malcolm Gladwell's book Outliers.  Gladwell reports on the importance of birth dates in Canadian hockey.  Boys who have birthdays in January and February tend to be hockey stand-outs, Gladwell argues, because in their early years when they are under ten years old, they are significantly older and more physically mature than the boys born towards the end of the calendar year.  As a result, the January and February kids get picked for all the travel teams and then all the all-star teams.  They get more practice in, they get the coaches' attention, and they also get to play in more challenging situations.  With each new experience, they improve incrementally, but eventually the differences between the January and February kids and the November and December kids are vast.*

I think something similar happens in the legal profession.  The initial distinctions that separate stand-out law students from the rest of the crowd are not as arbitrary as birthdates.  Still, some students just come more prepared for for the first year of law school than others.  They may have the advantage of lawyers in the family, or they may be the children of academics.  In any case, they have a particular kind of smarts, which is not the only kind of smarts or necessarily the kind of smarts that translates into scholarly promise or teaching ability.  Those students get onto law review and get the best clerkships.  They get special attention from the professors who oversee their law review notes.  Based on their prestigious clerkships, they have better shots at the VAP opportunities if they want them, and while doing their VAPs, they have time and resources, including mentors, that help them improve their legal scholarship.  Based on their impeccable credentials and newly-established scholarly promise, they then land jobs at good or even top law schools where they have more resources and time for research.  By contrast, in twenty years of teaching, I have had a grand total of two semesters when I did not have a full teaching load, and many years I have taught overloads.   

They regularly get invited to the small conferences at which faculty members still exchange meaningful feedback.  They get invited to publish in edited collections or to present at symposia, which are then published in law reviews.  They see advance copies of major forthcoming publications and can write responses for prestigious journals' online supplements, if not for their print issues.  They know things about the placement process that those of us in The Other Legal Academy learn years later and never fully comprehend. They  interact with or collaborate with their colleagues, all of whom are at the top of their fields, and so they are constantly gaining advantages over the people in The Other Legal Academy.  Perhaps I am romanticizing the life of academics in The Legal Academy, but I hope not.  It's a good life, and the people who have it have earned it.  I hope they make the most of it. 

This is not sour grapes; it is armchair sociology.  Almost all of my encounters with The Legal Academy have been rewarding and encouraging.  For the most part, I am extremely impressed by the people who make it into The Legal Academy, and I wish I could keep up with them, but neither group has the time for that.  My time is mostly devoted to teaching in The Other Legal Academy, which will be subject of Part III of these musings.  I said above that I have resigned myself to not having a scholarly impact.  Instead, I am now committed to having an impact through teaching, and I will turn to that subject in the next post.

*Gladwell might be wrong about Canadian hockey players. He has his critics but also his supporters.