The Georgetown Law Journal's got a nice little debate in its most recent issue, with Pierre Schlag declaring that: "American legal scholarship today is dead—totally dead, deader than at any time in the past thirty years. It is more dead, vastly and exponentially more dead, than critical legal studies was ever dead during its most dead period." In response, Robin West, Daniel Ortiz, Richard Weisberg, and Richard Posner offer up their own assessment of Schlag and the legal scholarship world at large. Law bloggers could (and perhaps will) ponder many of the issues surfaced there. But I want to flag the discussion because...hey, I'd hate for everyone to miss it!
I was particularly intrigued by Posner, who found himself in far more agreement with Schlag than he ever expected. Pondering the demise of traditional doctrinal scholarship, or perhaps the status accorded such scholars, Posner wrote:
With the rise of interdisciplinary legal studies, a rise powered in part by advances in the social sciences and in part by the radicalism of the 1960s and the resulting pressures to diversify law school faculties and student bodies along politically correct dimensions, the old system of faculty recruitment faltered. Eventually it was largely replaced, especially at elite law schools (but at many nonelite ones as well), by a system more like that found in the standard academic fields. Now many new legal academics begin their teaching career after obtaining a Ph.D. in economics, or history, or some other field related to law, or after a two-year teaching and research fellowship at a leading law school, and invariably they have done some substantial academic legal writing, preferably published, before being hired for a tenure-track position. The period to tenure has been lengthened to enable the law school to base its decision to grant tenure on a larger sample of a candidate’s written work. The problem with the new system of recruitment and promotion is that it tends to freeze out the type of person who is very good just at legal analysis— whose identification is with the legal profession rather than with one of the standard academic fields, such as economics or history, philosophy or statistics, psychology or sociology. That is the type of person who, entering law teaching after a few years of law practice, would be superbly equipped to do Langdellian scholarship.
Might it not be a good idea for law schools, just as they have separate clinical departments, with clinical faculty whose credentials, job descriptions, and career tracks differ substantially from those of the “regular” faculty, to have a department of legal analysis? The members would be legal doctrinalists, and their salaries would probably exceed those of the other professors in the law school (because lucrative private practice would be a close substitute for what they would be doing in law school, which is not the case for more “academic” law professors), but they would have somewhat higher teaching loads and the school would have different and lower expectations with regard to their scholarly publication. The practice of law has become a team effort—so has medicine— so why not legal education? Already regular law professors and clinical law professors work side by side in general amity. Why not have a third group of specialists, the legal analysts, working alongside them?
The law schools legal analysts, not merely as teachers but also as scholars. Doctrinal analysis cannot be left to judges. As Schlag puts it, “Courts have dockets. Legal academics have time. Given this asymmetry, the academics could always outdo the courts in the intricacy of their analysis."
I love most of all the rhetorical approach here: Yes, you doctrinalists will be second class scholars and citizens...but you'll be the richest guys in town!
Image: Professor Posner.