Legal Commentary

Legal academia has a bit of an identity problem--namely, it's not really clear what the ideal form of legal scholarship is. This is not a struggle law has dealt with alone. Many subjects in recent decades have developed a case of "science envy"--a concern that there is no particular standard method which can form the basis of normative rules for scholars in that discipline about how their work is to be done--and have as a result cast about "borrowing" from other fields for tools and insights to better ground their own inquiries. For example, history has been struggling with this sort of conflict since at least 1980.

But legal academia's existential conflict goes even deeper. To the extent legal scholarship has a method--the legal method of analyzing cases and, more recently, interpretation of written rules such as statutes and constitutions--it's one that uncomfortably close for many legal academics to legal practice. Law review articles can't just be law office memos and briefs writ large, can they? The fear somewhere deep in the reptilian parts of our brains is that legal academics, well, just aren't really academics. They're lawyers with cushy jobs.

As a result, there has been an explosion of activity in recent decades of legal scholars shooting off in all different directions trying to establish colonies of legal scholarship grounded in other methods -- a bit like a well-fed spider plant. The idea is to avoid what lawyers do and try to do more what professors in other disciplines do--any other discipline. Economics, science, sociology, literature, political science, history, philosophy; as long as "law" is not in the title, it's fair game.

So I was particularly interested to read the very end of a recent paper Mark Tushnet posted on SSRN, recently, Harry Kalven and Kenneth Karst in the Supreme Court Review: Reflections after Fifty Years. Tushnet suggests that this casting about in other disciplines might be exactly the wrong move if law is to gain (maintain?) respectability as an academic discipline:

The issues Kalven and Karst discussed remain with us, but their sensibility has been lost. It would, I think, be good to retrieve it, but I wonder whether that is possible. An intellectually ambitious scholar today who is the same age as Kalven and Karst were when they wrote their articles would be well-advised--and I am sure is advised--to avoid doing "mere doctrinal work." Kalven and Karst were engaged with doctrine far more deeply than today?s scholars are. For obvious structural reasons those with dual degrees in law and some other discipline are unlikely to, and in my experience do not, achieve the heights that Kalven and Karst reached.¹⁰⁴ But, only by reaching those heights can one truly appreciate the difficulties faced by "responsible men of affairs," and thereby achieve the detached sympathy that Kalven and Karst had for the Supreme Court and its work. That few scholars today have the capacity to do so is unfortunate.



¹⁰⁴ Briefly: Although reasonably smart, well-trained lawyers can do doctrinal analysis to a decent level of sophistication, doing doctrinal analysis at the highest level is difficult indeed, requiring a fair amount of intellectual facility and a wide grasp of doctrine from many fields. Dividing one?s intellectual effort between acquiring facility in doctrinal analysis and achieving distinction in another discipline means that one will be unable to reach the heights of doctrinal analysis. And, on the other side, in every "other" discipline of which I am aware, the field "other discipline of law" (legal history, sociology of law, economics of law, and the like) is marginal to the discipline as a whole, which means that the most able graduate students will be drawn to the fields at the discipline?s core, leaving the subfield dealing with law populated by perfectly able but not truly exceptional students. (There are of course exceptions, quite rare in my experience.)

Jack of all trades, master of none.