Thursday, September 21, 2006

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.

17 Comments:

Blogger Frank said...

For those of a Dantean cast of mind, perhaps we could reverse these and depict them as varying levels of the inferno. Or perhaps 5-8 are mere purgatory, and only 9-10 get one into heaven.

Personally, I tend to think that the people best suited to doing "empirical study of legal institutions" are likely those who've got the research skills (in sociology, poli sci, econ, anthro, etc) to be self-conscious about their methodological choices and to get the kind of grants often necessary to conduct research.

I would tend to see the law prof capable of mediating and filtering the mass of such studies as performing a vital role...akin to judges performing a gatekeeping role under Daubert.

9/22/2006 11:15 AM  
Blogger Carolyn Elefant said...

I am not a professor, but how does empirical study wind up so high on the list? I see empirical studies as nothing more than glorified surveys, that help us figure out, statistically, what our chances of surviving SJ are in employment cases or whether your client is better off with a judge or a jury in a drug trial. Interesting, yes - but scholarship? Please.

9/22/2006 2:06 PM  
Blogger boldface said...

Sorry, Jim, but that hierarchy is incredibly self-referential, with the self being law professors.

Law professors teach budding lawyers. Those lawyers are going to go out into the world and practice law, acting on behalf of clients. The notion that legal academic work becomes more worthy as it becomes more abstract and removed from anything anyone in the class will likely encounter gets things backwards. I have no problem with abstractions that teach someone to think like a lawyer. I do have a problem with rewarding abstraction for the sake of abstraction.

By all means, publish insights on the direction law is taking, on how statutes should be read, on hitherto unnoticed contradictory developments. That stuff could actually be helpful to someone other than a law professor.

Is the purpose of rewarding empirical studies to get legislative change? That's fine, but then why rank it higher on the scale? It's not an unworthy goal, but it is merely different from noticing trends and providing insights -- it isn't inherently better or more worthy of being rewarded with tenure.

9/22/2006 2:38 PM  
Blogger Jim Chen said...

Hi folks,

There are a lot of comments and links on this item, which makes me happy as administrator of Jurisdynamics and its associated network. But I must make clear that this is J.B. Ruhl's list!

I am headed to an airplane now. Later, perhaps, I may weigh in with my own observations.

Best wishes,
Jim Chen

9/22/2006 4:15 PM  
Anonymous Loyd Braun said...

I agree mostly with the list. I would place legal theory higher on the list on the premise that really good legal theories pan themselves out in the end. I agree with Boldface's comment that much of what is written tends to be abstract; however, a person's ability to clearly articulate an abstract notion is one we should reward. Remember, we are talking about tenure and entry into the academy.

As far as the usefulness to society (and the profession), I am sure that some attorneys in the thirties decried the realists, in the sixties they decried the law and society folk; and everyone since then have decried the crits. Yet each of these movements, which started from abstract ideas in the academy, all contributed something to the social net worth, even if that something was knowing what didn't work.

Thus, I would put legal theory at least on par with empirical studies as it is the hashing out of the future directions of law.

9/22/2006 5:29 PM  
Blogger Fabio said...

Carolyn wrote: "I am not a professor, but how does empirical study wind up so high on the list? I see empirical studies as nothing more than glorified surveys, that help us figure out, statistically, what our chances of surviving SJ are in employment cases or whether your client is better off with a judge or a jury in a drug trial. Interesting, yes - but scholarship? Please."

I am not a lawyer, but in my field (sociology) we tend to value empirical research highly. Yes, there is bad empirical research that is nothing more than dressed up survey results. But *good* research uses surveys to answer a question that people care about.

If you can show that the real world actually works (or does not work) according to theory X, than you've done something a bit more impressive than saying "I believe the world should be ... " or "A lot of other people have said ..." or "The world isn't as good as it could be." And, from what I have read, too much legal scholarship amounts to heavily footnoted opinion assertion or previous case review.

So I agree with Mr. Chen's main point that normative or theoretical writing be low on the priority list of legal scholarship. Occassionally, you get great thinkers who change the way we think from a normative perspective, but I think law professors can make the biggest contribution by doing empirical work on the law or how it impacts society.

The law is one our most important institutions, but most social scientists don't have the depth of knowledge required to adequately design empirical studies. And solid knowledge of how the law really works should be rewarded over endless, lightly supported and self-referential theorizing.

And for practitioners, there is nothing to prevent a law professor from studying the outcomes of legal practice. As long as she is advancing the state of knowledge about the law in a rigorous fashion, then I don't see why law prof research can't speak to working lawyers, much in the same way that b-school profs address questions of professional concern such as executive pay.

9/22/2006 5:54 PM  
Anonymous Northerner said...

I don't get Category 1 at all. "Publication of what are essentially blog posts with footnotes."

How many blog posts are 40+ pages long? None. How many law review articles are one or two paragraphs long (the typical blog post)? Again, none. I don't see where the overlap is supposed to be. Just who are these scholars who, now or ever, published law review articles that consisted of a single paragraph with footnotes?

9/23/2006 5:50 PM  
Anonymous Anonymous said...

This heirarchy is self-involved madness. Empirical studies can be very informative, but it is ridiculous to consider them the pinacle of legal scholarship. One does not need a legal education to conduct an empirical study of the impact of a legal rule on society. In fact, a sociologist or economist with serious statistical training is likely to do such a study far better. Most empirical analysis by law professors is of very amateurish quality (just like their economic analysis).

It is good to see increased empirical analysis in law, but there is a real danger of making a fetish of it, just like happened with economic analysis of law in the past three decades. Let economists do the economic analysis, sociologists do the empirical studies, and let law professors actually know some doctrine and then use the full panoply of analytical tools to recommend policy. Good scholarship does not depend on choosing a particular methodology, but on the quality of its application. This is something that all those law professors masquerade
as social scientists could learn from the humanities--methodology does not the scholar make.

9/23/2006 10:28 PM  
Anonymous Anonymous said...

I might add to my previous comment, that the level of scholarship in law is generally appallingly low, when compared with other disciplines. A J.D. degree doesn't really prepare one to be a lawyer, but it hardly prepares one to be a legal scholar. Compared to the scholarly training one receives in a doctoral program, the academic training of law professors sporting only a JD is light-weight, and using a standard of 3 publications in journals run by second-year law students as the basic screen for the job marke is surreal.

Until legal scholarship at a whole is at a much higher level, looking to a single methodological tool, like empirical analysis, is like trying to build a Space Shuttle with Carolingean technology.

9/23/2006 10:36 PM  
Blogger Jeff Harrison said...

Legal scholarship is in need of empirical work but that hardly elevates to to the top level. Empirical work can be done by anyone doing the other types of work once they acquire the required skill and it is simple that -- a skill and not indicative of special reasoning powers. Having said that, I think the list excellent. I am amazed that law professors are given any credit at all for casebooks and treatises. As someone who came to law teaching from another discipline here are some things that boggled my mind:
1. casebooks and treatises count.
2.third year students make the decisions.
3. you can submit to multiple reviews.
4. Promotional efforts count -- credentials, overblown footnotes, acknowledgements.
5. The "back end" referring at tenure time is often undertaken by social or political friends.

These are a different topic, I know but not only are law professors not suited to be good scholars but the system of evaluation is largely corrupt.

9/24/2006 10:07 AM  
Anonymous Northerner said...

Why the hell shouldn't casebooks and treatises count? In fact, they probably count for too little, because some law professors care more for navel-gazing articles that are read by 5 people than for a massive treatise that summarizes, theorizes, and critiques an entire body of law in such a way that thousands of practitioners and judges can use it.

If you don't want to count casebooks and treatises, you're forgetting that you're in a *law* school -- that is, a professional trade school. Lo and behold, some people are still unconvinced that the sole duty of a law professor is either 1) to think high and lofty thoughts about how to reform the law, or 2) to do an empirical study showing that reforming a minute subsection of the tax code would lead to a 1% increase in whatever. One teensy-weensy little additional job -- and they might have forgotten to tell you about this in some law schools -- is to teach people how to practice law.

But goodness gracious, we wouldn't want to reward any form of scholarship that has anything to do with teaching people to practice law. How gauche! How horribly practical!

9/24/2006 3:17 PM  
Anonymous Keith Sharfman said...

This is a great post, J.B. Having a hierarchical taxonomy really helps to put things in perspective. One can quibble about the precise way to rank the genres. But trying to rank them sensibly sure beats pretending that they're all of equal value, which if it were so would be quite an extraordinary coincidence.

Here's one friendly suggestion for an additional category 11 (which is really just an amalgam of categories 5 and 9): normative policy analysis that is empirically grounded. It's one thing to propose legal policy reforms based on logic and intuition alone. But policy proposals are much more convincing when backed by empirical evidence. By the same token, it's interesting to discover and present empirical data about the legal system. But it's even more interesting when it can be shown that some policy question turns on the data presented.

9/27/2006 8:25 PM  
Anonymous Anonymous said...

Humorous that you can rank the value of articles on a scale of 1-10. Perhaps this is what differentiates legal research from true scientific research.

This post also illustrates why judges find little utility in academic scholarship.

9/28/2006 1:26 AM  
Blogger Peter Tillers said...

I published the following words back in 1983 and I happily affirm them again, reminding everyone that vessels (particularly treatises) are capable of carrying different kinds of material:

I am particularly grateful for [the] encouragement [of various named people] since it has become fashionable in some quarters to think that the writing of treatises — not to speak of their revision — is a waste of intellectual capital. Their encouragement made me hold to the sensible view that books, just as much as articles in periodicals, can be a vehicle for expressing original thought and that nothing in heaven or on earth forces an author or reviser of a book to uphold ever conceivable orthodoxy.

&&&

Is there nothing new under the sun? Even Prof. George Priest cofessed error -- long ago. (But I don't believe Prof. Duncan Kennedy ever joined Priest in repudiating youthful folly.)

2/24/2007 5:33 PM  
Blogger EsteeEstee said...

I'd like to add my five cent, though may be somewhat offtopic. But it came to my mind while I was reading this post and I just can't stop thinking about it.

All the time I discuss different journal articles and conference papers with my "common law" colleagues, I see that we have a rather (if not very) different conception of what should be considered "academic", "analytical", "scientific", etc. The result is that a serious and absolutely analytical paper or report (in terms of one system) is considered to be too simplistic or too pointless, etc. by the representatives of the other system. For instance my colleagues often consider papers written by our US colleagues to be too broad and shallow (and hence absolutely non-analytical) while our US colleagues consider their papers to be too simplistic and narrow in scope, sometimes as just purely descriptive (and hence - yes! - non-analytic as well). I do not take into account just poorly written papers and poorly conducted research. I speak about those papers that are recognized as a serious scholarship in one system while being rejected in other.

I think it might make sense to discuss a bit these differences, may be not in the comments to this particular post but still.

I feel I also ned to beg the pardon for the language of my comment, English is not my native tongue.

10/11/2009 7:36 AM  
Blogger EsteeEstee said...

I'm sorry to have been not clear. Speaking about the example of the differences I meant that colleagues from my country conder scholarship of our US colleagues to be.... (so and so) while our US colleagues consider scholarship of the colleagues from my country to be... (so and so). I beg the pardon again.

10/11/2009 7:42 AM  
Anonymous Personal Injury Attorney Houston said...

Nice post!

5/20/2010 6:26 AM  

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