Saturday, September 23, 2006

Scholarly hierarchies: further thoughts

This post started as a comment on the latest elaboration of J.B. Ruhl's hierarchy of legal scholarship, but one advantage of managing a blog is posting on the front page. I therefore offer some further thoughts on the project of evaluating legal scholarship.

Boston Legal
How many law professors could hack law firm life? Maybe it's best not to ask such an embarrassing question.
I wonder whether J.B. seriously wants to "us[e] the average associate at a top law firm as [his] baseline." J.B. asks, "what can law professors supply the world that top-100 law firm associates usually could not?" Reversing the question might generate some really embarrassing answers. The academy as a whole might not want to contemplate the number of law professors, including professors with tenure at very highly regarded law schools, who could not be entrusted to perform tasks asked of associates at top-tier law firms.

I accept J.B.'s assertion that his hierarchy does not hinge on the amount of effort involved in the production of each category of scholarship. J.B. does seem to assume, though, that within a class of writers (associates, professors, etc.), empirical research is harder than theory and theory is harder than doctrine. From this perspective, J.B.'s hierarchy does depend in part on cost. I don't think that a cost-based orientation is inherently mistaken. In any event, J.B. forswears reliance on cost, and I agree that looking for value, whether defined as value added or value in the aggregate, is the proper pursuit.

Ally McBeal
Ally 1, Academia 0
Finally, I'd like to offer a brief rejoinder to Larry Solum's critique of my response to J.B. I freely confess that I was ambiguous in identifying overall societal impact rather than its intended audience as the criterion by which scholarship should be evaluated. I tip my hat to Larry for helping me sharpen my definition. Neither form nor purpose displaces societal impact as the proper gauge of scholarly merit.

Let me sum up. It is possible, at a minimum, to evaluate legal scholarship according to (1) the practical difficulty or intellectual beauty of its methodology, (2) its intended audience, (3) the value added by the scholar relative to the work of a nonscholarly legal professional, or (4) its overall value, either to a specialized field or to society at large. In other words, scholarship can be assessed, like law itself, according to its form, its intended purpose, or its actual effect. Because it's hard to assess actual effects, lawyers and judges often use form and purpose as shortcuts. Unsurprisingly, legal academics do the same when evaluating their own work. But all parties, I suspect, would do well to pursue direct measures of the only criterion that counts: real-world impact.


Anonymous JKC said...

I wonder if you and J.B. are really getting at the same idea--aren't empirical studies a way to measure what you (correctly, I think) identify as the most important criterion, real world impact?

Maybe the real difference lies in how much credence we give to empiricism--if we have a Lockean trust of science (and the underlying assumption truth is sensually perceived), then empiricism makes sense. If on the other hand, we're of a more literary, humanist mindset, then we don't trust raw numbers (probably because we're just not as good at math) and would rather focus on the linguistic and philosophical nuances of form and theory. Ultimately I think any really valuable contribution has to incorporate a measure both.

9/24/2006 3:34 PM  

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