The Ethics of Normative Legal Scholarship (original) (raw)
Related papers
2014
Why is legal scholarship valued, required, pursued, and rewarded in the legal academy? What do legal scholars contribute to the academic pursuit of knowledge? What does the pursuit of justice have to gain from legal scholarship? We take up these questions at a time of crisis. The scholarly mission of the legal academy is under unprecedented attack from all corners. Critics include the universities in which they are housed, the legal profession and the bench, law scholars themselves, and law schools' cost-conscious critics. So what is the cause for complaint? The Brief Against Legal Scholarship University colleagues fault legal scholarship for its lack of discipline and peer review, but also, and more fundamentally, question its point. Academic critics contend that legal scholarship, compared to scholarship from the social sciences and the humanities, is too "professional." It is brief writing or perhaps white paper writing in disguise. It is overly argumentative, political, or, most generally, too "normative," by which is meant simply that its aim is to state what the law should be, as well as what the law is. At its best, critics say, it seeks to develop a more just world, rather than a more knowledgeable one. Therefore, even the best of it is not true scholarship: it lacks true scholarship's defining goal of uncovering subtle and interesting truths through the pursuit of knowledge within the discipline of a recognized academic field. Critics from the Bar and the judiciary proffer the opposite complaint: that legal scholarship is not professional enough. The purpose of contemporary legal scholarship, according to professional critics, is obscure, and at least a good bit of it no longer seems primarily aimed at clarifying the law or suggesting pathways for the law to follow. It is of scant use to the practicing lawyer, and even less helpful for the sitting judge. Some judges brag that they don't bother to read it. For these critics, legal scholarship is too "academic." It is enamored with fads from other disciplines, and it is unmoored from any discipline or learning that is distinctively "legal." Law schools' legions of cost-conscious critics, with their eye on the bottom line, complain bitterly about legal scholarship's costs. Whatever might be its aim, tenured law professors with low course loads and high salaries produce far too much of it, driving up tuitions. It is a whole lot of costly nothing, these critics claim. The cost critique urges law professors to retreat from producing little-read and lowimpact scholarship toward teaching instead. The overall theme is that scholarly professors are eschewing the work of training students to be "practice ready" in favor of obscure research agendas and boutique seminars on overly precious topics that are of no use to practicing lawyers.
2003
Abstract I review Eugene Volokh's recent book, Academic Legal Writing. The book is nominally directed to law students and those who teach them (and for those audiences, it is outstanding), but it also contains a number of valuable lessons for published scholars. The book is more than a writing manual, however. I argue that Professor Volokh suggests implicitly that scholarship is underappreciated as a dimension of the legal profession. A well-trained lawyer, in other words, should have experience as a scholar.
S Tex L Rev, 2001
BRUCE A. GREEN* [A member of the House of Commons said in Samuel Johnson's presence] that he paid no regard to the arguments of counsel at the bar of the House of Commons, because they were paid for speaking. JOHNSON. 'Nay, Sir, argument is argument. You cannot help paying regard to their arguments, if they are good, If it were testimony, you might disregard it, if you knew that it were purchased. There is a beautiful image in Bacon upon this subject: testimony is like an arrow shot from a long bow; the force of it depends on the hand that draws it. Argument is like an arrow from a cross-bow, which has equal force though shot by a child.' 1 What law professor would spurn the opportunity, afforded by this symposium, to offer personal reflections on the ethics of law professors? Day after day, by profession, we hold a mirror up to the law, legal institutions and lawyers. Now, we are invited to hold a mirror up to ourselves and our colleagues. Anyone at all reflective would jump at the chance. But, on further reflection, what law * Louis Stein Professor, Fordham University School of Law. Gratitude is expressed to Teresa Collett and the other organizers of, and participants in, the Symposium on the Ethics of Law Professors at South Texas College of Law for which this contribution was prepared, to participants in the Fordham Faculty Workshop who offered their suggestions prior to the symposium and to Cathy Horta, Fordham Law '02, who provided valuable research assistance.
In Praise of Legal Scholarship
William and Mary Bill of Rights Journal, 2017
INTRODUCTIONIt is commonplace to hear legal scholarship derided as out of touch, too theoretical, low quality, unread, and of little practical impact.1 Chief Justice John Roberts reportedly asserted that he seldom reads or relies on law review articles.2Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I'm sure was of great interest to the academic that wrote it, but isn't of much help to the bar.3Judge Harry Edwards is likewise famously critical of legal scholarship. He has written a number of law review articles criticizing legal scholarship.4 In these articles, Judge Edwards claims that legal scholarship does not address the concerns of the profession because it has "little relevance to concrete issues, or addresses concrete issues in a wholly theoretical manner."5 Perhaps most curiously, this critique is one that ac...
Revista Chilena de Derecho, 2011
Can we expect changes in the organizational structure of law schools to result in changes in the kind of scholarship they produce? This paper opens up that question and suggests an affirmative answer, putting forward the example of the United States. In American law schools, it is argued, the institutional structure set up by C.C. Langdell and the theoretical orientation laid by O.W. Holmes created the conditions for the emergence of forms of scholarship that question the existing legal and power order and confront legal problems in an interdisciplinary form.
Lawyering in the Academy: The Intersection of Academic Freedom and Professional Responsibility
The legal academy has given little thought to how practicing law within law schools affects professional responsibilities and is different from representing clients in a traditional law firm or how notions of academic freedom affect lawyering in law schools. Yet repeated attempts to interfere with law clinic representation starkly illustrate how lawyering in the academy might be different, under notions of professional responsibility and academic freedom, from other lawyering or typical law teaching.Scholarship on interference in clinical programs has focused primarily on the impropriety of interference on the institutional autonomy of law schools by those outside the university, such as politicians or business interests attempting to pressure universities and law schools not to represent or to abandon the representation of some clients. Conversely, internal intrusions on law clinic lawyering, usually by university or law school administrators seeking to influence whether and how cl...
The Dangers of the Ivory Tower: The Obligation of Law Professors to Engage in the Practice of Law
2004
After twenty years of teaching at Western New England College School of Law, I found myself frequently haunted by the maxim: "Those who can, do; those who cannot, teach."! I had left the practice of law after a mere four years. Since that time, I have become increasingly bothered by the fact that I was spending my career preparing students for a world that was more and more removed from my daily existence and memory. Although I stayed in touch with many practicing attorneys, including former colleagues, classmates, students, and lawyers in my community, I personally had not engaged in the practice of law in any meaningful way since 1982 when I joined the faculty of Western New England. I was bothered by the fact that I knew law practice had to have changed in twenty years, but I was only • Professor of Law, Western New England College School of Law. I would like to thank the lawyers at Cantor Colburn LLP in Bloomfield, Connecticut, for so generously and graciously allowing me to visit the firm during the Spring of 2003. In particular, I would like to thank Pamela S. Chestek and George A. Pelletier, Jr., who were remarkably willing to give me their time and attention so that I could learn about their practice experiences. In addition, I would like to thank Dean Arthur R. Gaudio and the administration of Western New England College School of Law for granting me a sabbatical leave so that I could take advantage of the opportunity to visit Cantor Colburn. I also want to thank
The Dangers of the Ivory Tower: The Obligation of Law Professors to Engange in the Practice of Law
2004
After twenty years of teaching at Western New England College School of Law, I found myself frequently haunted by the maxim: "Those who can, do; those who cannot, teach."! I had left the practice of law after a mere four years. Since that time, I have become increasingly bothered by the fact that I was spending my career preparing students for a world that was more and more removed from my daily existence and memory. Although I stayed in touch with many practicing attorneys, including former colleagues, classmates, students, and lawyers in my community, I personally had not engaged in the practice of law in any meaningful way since 1982 when I joined the faculty of Western New England. I was bothered by the fact that I knew law practice had to have changed in twenty years, but I was only • Professor of Law, Western New England College School of Law. I would like to thank the lawyers at Cantor Colburn LLP in Bloomfield, Connecticut, for so generously and graciously allowing me to visit the firm during the Spring of 2003. In particular, I would like to thank Pamela S. Chestek and George A. Pelletier, Jr., who were remarkably willing to give me their time and attention so that I could learn about their practice experiences. In addition, I would like to thank Dean Arthur R. Gaudio and the administration of Western New England College School of Law for granting me a sabbatical leave so that I could take advantage of the opportunity to visit Cantor Colburn. I also want to thank