Saturday, May 30, 2015

Is Legal Scholarship Useless?

Professor Sherman Clark has published a brief article (here) offering his answer to this question. He justifies legal scholarship on two grounds:

First, at least some scholarship should question, rather than merely accept as given, the aims and priorities of the profession. We should be willing to rethink, rather than merely reflect, current assumptions about what matters — about what is or is not truly useful. Thus some of our work will, by definition, initially strike the profession as useless — at least if we are doing our job.

Second, support for a certain amount of wide-ranging scholarship attracts and helps retain law teachers who are willing and able to do this sort of work — and who are thus able to help future members of the profession develop that same capacity. How we evaluate this latter consideration will depend on our views about who should be teaching law and what we should be teaching. In this way, responding thoughtfully to difficult questions from the profession about the value of our scholarship should prompt reflection not just about the uses of legal research but about the aims of legal education more broadly.

These justifications do not persuade me. As for the first, scholarship that questions assumptions rarely exerts any influence on the nonacademic world or, for that matter, on the academic world. The output of academic pieces is enormous; yet, who reads their pieces and is influenced by them? Very few readers. I don't want to overstate my position, but very few scholarly contributions have any impact.

As for the second, if a goal of academic scholarship is to entice smart lawyers to become law professors and if my assessment of the first argument is correct, is it proper to entice academically-inclined lawyers?

Perhaps I am being too pessimistic. I would be interested in the thoughts of our readers.


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Some of my thoughts.

David R. Barnhizer, Prophets, Priests and Power Blockers: Three Fundamental Roles of Judges and Legal Scholars in America, 50 University of Pittsburgh Law Review 127 (1988)

David R. Barnhizer, Truth or Consequences in Legal Scholarship?, 33 Hofstra Law Review 1203 (2005)

David R. Barnhizer, A Chilling of Discourse, 50 Saint Louis University Law Journal 361 (Winter 2006)

David R. Barnhizer, The Justice Mission of American Law Schools, 40 Cleveland State Law Review 285 (1992)

David R. Barnhizer, Freedom to Do What? Institutional Neutrality, Academic Freedom and Academic Responsibility, 43 Journal of Legal Education 346 (1993)

David Barnhizer. 2010. "The Illusion of Creative Scholarship in American Universities and Law Schools" The SelectedWorks of David Barnhizer
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Posted by: David | May 31, 2015 9:16:49 AM

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