The Hierarchy of Legal Scholarship

Although this topic has little to do with my usual musings on complex adaptive systems, serving on our hiring committee has prompted me to consider how to differentiate between different genres of legal scholarship. I rank what I describe as the major categories of legal scholarship from a low of (1) to a high of (10) as follows:

0 – Blog posts: I mention blog posts only to provide a baseline of what is not legal scholarship. That there is any debate over the status of blogging is ridiculous. Anyone can write a “world according to me” blog comment, hit “post,” and have published his or her “insights.” It’s not scholarship, which is why I enjoy doing it so much.

1 – Publication of what are essentially blog posts with footnotes: Before blogs, many legal scholars simply published as articles what later would be posted on blogs. Many still do. Knowing that anything will be picked up by some print or online law journal, it is incredibly easy to write what amounts to a “world according to me” blog post, add footnotes from their home on a laptop, and have it published.

2 – Doctrinal review of the state of the law: We’ve all heard the criticism that so-and-so’s work is doctrinal. But let’s face it, almost any practicing lawyer at a top law firm could (and has) produced thorough written reviews of the doctrinal state of law in a particular context. Legal academics may be in a better position to produce such work on a more regular basis, but otherwise they provide little added value by doing so.

3 – Doctrinal study of interesting questions of law: It improves matters only marginally to conduct doctrinal work when the topic under study presents novel or interesting questions of law. Once again, practitioners are more likely know what those questions are and to have reviewed the pertinent legal authorities. It will sometimes be the case, however, that legal academics “see” an important issue before the practitioners do.

4 – Doctrinal synthesis of developments in law: Doctrinal analysis is most valuable when it “pulls together” themes of development in the law and assesses their trajectory. Practitioners are less likely to have the time or incentives to take this ‘big picture” view of doctrine, meaning that academics can provide some meaningful value added.

5 – Normative policy analysis of law: What’s lacking in the work described on (0) - (4) is anything that takes on the normative position of the law beyond the author’s opinions. Much of legal scholarship goes at least as far as to stake out a normative position, but goes no further than positing an assessment of the success or failure of the law relative to the normative position and suggesting that something be done about it. This is thought-provoking scholarship, but not that hard for an academic, whose job it is to take the time to think about such matters, to produce. Indeed, one need not be the least skilled at the kind of scholarship described in 2 through 4 to do this kind of work.

6 – Normative policy analysis of law with substantial reform proposals: The ability to pull off normative policy analysis and provide concrete, specific reform proposals is the hallmark of high-quality traditional legal scholarship. One must be able to produce all types of work from (1) through (5) to do this. As it is unlikely that practitioners ever would have the time to ponder such work, much less to write it, legal academics have long provided this value to development of legal thought.

7 – Legal theory: In many ways legal theory work, which many legal academics hold out as the pinnacle of legal scholarship, is just a souped up version of category (1). One can produce high quality legal theory scholarship without ever leaving one’s office. It helps to be really smart, clever, and insightful, and to pack a lot into footnotes including, not least of all, cites to other legal theory scholars with whom one is friends. But seriously, good legal theory scholarship can make a difference in how all legal professionals view the law in particular and the world in general. Most scholars capable of producing insightful legal theory scholarship could produce high quality work in any category (0) through (6), but the reverse is not true.

8 – “Law and” interdisciplinary studies: Many legal academics may be surprised that I put this category ahead of legal theory. But top quality “law and” scholarship requires the ability not only to engage legal theory, but also to translate (more accurately, to parasitize) other relevant disciplines into legal contexts in order to engage legal theory in broader normative applications.

9 – Empirical study of legal institutions: Let’s face it—law has gotten away with it for too long. Our colleagues in most other disciplines would never get tenure producing the equivalents of categories (1) – (8), yet at some law schools tenure is handed out for work product histories never reaching beyond category (1), and at many law schools category (2) is sufficient. If one can churn out the kind of work described in categories (5) – (8), tenure is a shoe-in. But shouldn’t the legal academy value at the highest end of the spectrum work that provides rigorous empirical insight into studies that would otherwise fit the categories I rank lower on the scale?

10 – Empirical study of law’s impact on society: If one agrees with my category (9) comments, then it strikes me as appropriate to distinguish between work that performs empirical studies of legal institutions within their legal contexts and work studying the effect of legal institutions on society. The latter is most likely to be recognized by scholars in other disciplines, and thus to have an impact outside of law school walls.