Hucksters and Selective Depth: Is it Scholarship or Merely Research?

One of the most difficult adjustments to make when coming from a more empirically-based discipline to law – aside from mailing out to multiple journals and the wheeling, dealing, and appealing to institutional authority designed to ratchet up placement of an article – is contending with the nature of what is regarded as scholarship. I do not mean the obvious problem of regarding textbooks, treatises and casebooks as “scholarship.”

What I do mean is undervaluation – if it is valued at all – of objectivity. Most articles seemed designed to prove a point or promote a specific solution to a perceived ill. The research is merely a means to this end. Rarely do I see articles that set out to test hypotheses and, then, on the basis of acceptance or rejection, go on to discuss responses. Even articles that set out to promote a particular position by fairly dismantling an opposing one and candidly disclosing weaknesses in the proposed position are uncommon. What I do see is more accurately described as “service,” no different from holding a charity auction for a good cause or writing a pro bono brief on behalf of a client.

As most senior professors are asked to do, I review the tenure and promotion work of researchers from other schools. Two non-scholarship trends, in particular, have emerged. First there are the hucksters. Their articles read like the authors have attended the Ron Popeil or John Basedow (fitness celebrity) school of scholarship. There are no issues or complexities. The target of the author’s attack is invariably characterized as underhanded, exploitative, predatory, cut throat, ill-conceived, missing the point, insensitive, etc. Hopefully, this hucksterism is discounted by everyone except the choir and the weak-kneed. Second are the articles in which the language is toned down, but every time the analysis starts to head in a direction that might compromise the author’s position, it is short-circuited in favor of arguments that drive the point home. You might call this “selective depth.”

Are law professors so wedded to the adversarial system that they feel it is scholarly to write articles that can only be part of a process of discovering the “truth” when someone presents the counter-argument in a subsequent article? Suppose the counter-position is not represented by counsel as will be the case if that position is not politically in vogue? Precisely what is the scholarly element in that endeavor?

Ultimately all of this research is treated as scholarship because, at the tenure and promotion point, the candidates fight to have a hand in selecting reviewers, and articles are often sent to political and social friends. And to those reviewers the candidates are “rising stars,” “brilliant,” “first rate" “imaginative,” “interesting,” “provocative,” etc. – the code words for “welcome to the fraternity” or “What would happen to me if I were actually honest about this work?” (Did you ever wonder why law professors want tenure? When was the last time one said something controversial?)