Thursday, April 02, 2009

Law Professors Write Way Too Much

Sherman Oaks, California

Law professors do it, too.

Previously, I posted about a study which argued that English literature professors published thousands of unread scholarly articles merely to justify their cushy jobs.

Maybe there’s something in the air, because University of Colorado law professor Pierre Schlag made the same point about his colleagues in the most recent issue of The Georgetown Law Journal.

“Now it’s true that we’re producing at a vastly faster rate than ever before. More papers. More conferences. More panels. More symposia. More blogs. And faster and faster too. More and faster,” Schlag wrote in a breezy style rarely seen in the precincts of academic publishing. “Over seven thousand American legal academics – and all of them cranking out those talks and papers as fast as possible. The speed of legal scholarship is just off the charts right now.

“And yet, nothing’s happening.”

By which Schlag meant that there is no great intellectual movement roiling the academy. In the last decades of the nineteenth century, Anglo-American law was summarized, categorized and systematized into the various doctrinal compartments we use today (contracts, torts, civil procedure, etc.). Before World War II, the advocates of “legal realism” argued that law was nothing more than an extension of human will, warts and all. Since the 1960s, the classroom has been washed by trendy waves such as critical legal studies (law is political and therefore bad), critical race theory (law is racist and therefore bad) and feminist legal theory (guess). But, according to Schlag, there’s not much intellectual ferment at the moment.

So why the vastly expanding body of scholarship?

“The legal academy clearly did not need five hundred contracts teachers to write treatises on contracts (six would do). How then to keep the other 494 duly employed? A three-pronged answer: (1) heighten the intricacy of analysis, (2) let the academics issue lots of normative recommendations, and (3) have them argue incessantly amongst themselves,” Schlag wrote. Taken together, these professional activities – aimed, in terms of quality, at the high end of mediocrity -- guarantee full employment for law profs.

(The word “normative,” by the way, is a word you hear four million times in law school, but all it means is “related to the making of rules.” Like a lot of legal jargon, it’s a shabby idea dressed in a Latin tuxedo.)

Meanwhile, law professors become fixated not on the intellectual or methodological rigor of their work but on various types of numerical rankings. “Quantification rules as the major parameter of academic excellence,” Schlag wrote. “To put it simply: lots of articles + lots of pages + lots of words + lots of certification = double-plus-good knowledge.”

The numbers race becomes a way to avoid the big issue of whether the work is worth doing. “We don’t have to worry that the enterprise might be entirely worthless if we’re totally fixated on how well or how badly we are doing it relative to everybody else,” Schlag wrote.

Schlag’s conclusion is that the character of modern life is essentially neurotic and that the legal professoriate mirrors society in “the excruciating intricacies of everyday demands, the symbolic overinvestment of meaning in the trivial, the obsessive monitoring of everything to within an inch of its life.”

If anything, Schlag’s criticisms are too mild. For most law students, the most shocking aspect of the education is the creeping realization that almost none of the professors have much experience practicing law. The average prof worked at a firm for one or two years before moving into academia. So the fundamental critique of law profs is that they are profoundly unsuited to conduct their core function: training future lawyers.

What law professors like to do is think big thoughts. A few are astonishingly good at that. But then there's the other 6,900. Unfortunately, the incentives of the tenure track reward faculty for scholarship – not for teaching and certainly not for lawyering ability -- so junior professors write and write and write. Even if there's nothing going on.



Anonymous Anonymous said...

Do you think there will be any changes to the legal educational system with all of the attorney layoffs? There are a lot of unemployed attorneys running around out there with tons of school debt.

1:23 PM  
Blogger PKL said...

People will want to be lawyers as long as they think there's money in it, they see it on TV and they're afraid of risk and math.

Law schools will exist as long as the federal government provides easy access to student loans.

Since neither of those will change, no, the legal education will stay the same.

8:36 AM  

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