Friday, September 22, 2006

Hierarchy of Legal Scholarship

The legal blogosphere is atwitter about J.B. Ruhl’s provocative post on the Hierarchy of Legal Scholarship, which in simplified for ranks types of legal scholarship (from lower to higher) as doctrinal, theoretical, and empirical.  Larry Solum has already noted some of the flaws in the list, but I think the whole idea is misguided.  To me, there are two things that matter with legal scholarship:  is it good or bad (in the competency sense) and is it interesting or boring.  Using these two metrics, here’s my hierarchy of legal scholarship (from lower to higher):

(1) Bad and boring.  Simple enough.

(2) Bad and interesting.  Often interdisciplinary; only ranks higher than bad and boring because bad and interesting makes for a more entertaining train wreck.

(3) Good and boring.  A lot of legal scholars would switch 2 and 3, though not many would admit to it.

(4) Good and interesting.  Obviously the top.

I personally think that theoretical and empirical scholarship is more likely to be interesting than straight doctrine.  But there is some very good and interesting doctrinal scholarship out there, and it often suffers in the pecking order because good doctrinal scholarship can be subtle.  The great treatise writers (Prosser, Corbin, etc.) were very descriptive, but were transformative in the way they described doctrine.  Only a person familiar with the area of doctrine is likely to recognize the transformative nature of a given piece of doctrinal scholarship.  And hey, who wants to spend the time during a hiring committee meeting trying to figure out whether someone’s scholarship is actually good or bad when you can just dismiss it as [fill in your personal bias]?

Ben Barros

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