Monday, August 04, 2008

The "Future" of Legal Scholarship

By the type of fluke that characterizes too much of what I read and even my scholarship at times, I ended up reading a 1981 article by Bruce Ackerman, "The Market Place of Ideas," 90 Yale L. J. 1131 (1981). I recall reading it years ago but just barely. The "1981" is important because 27 years later he seems to have gotten it right. I think anyone with even the slightest interest in Moneylaw will find the article interesting.

Ackerman notes that the incentive structure in legal education is hardly set up to generate excellence in scholarship. This is driven by the two incentives -- fame and freedom -- and the custom of granting tenure very early relative to every other discipline.

Two results are as follows:

1. "Legal academia will be full of full professors who fail to fulfill the promise of of one or two "promising" articles published at an early age." (Obviously due to friendship and the market for review letters we label the works as promising, but are they?)

2." Even those law professors who continue to produce scholarship after tenure will not stray from 'the logic of the opinion or the series of opinions that they are examining.' "

Ackerman notes the fame from citation as being, in part, responsible for relative low risk projects. According to Ackerman, early tenure means the professor, "has not even developed the basic scholarly skills: the knack of defining fruitful topics, the ability to spend lonely hours seeing one's ideas fall apart, the sense of when to junk a project and when to trudge along in hope of inspiration."

In this age of SSRN download counts, symposium issues, self-promotion, books composed of old articles, casebook churning, and writing within the confines of one's preconceptions, I wonder if Ackerman may have understated the problem.


Anonymous Matt said...


I'm not sure I disagree with you (or Ackerman) but I am eager for clarification on the idea that legal academics get tenure "earlier" than in other fields. In what sense of "earlier"? My impression is that most fields make a tenure decision at the end of th 6th year. Is that not also the norm in law? My very casual watching of the process makes me think so but I might be wrong. Or do you mean age? (I'm not sure why that would be important, but I wonder if legal academics would on average get tenure at a younger age, either- their academic training is usually shorter but most still clerk and practice for a few years at least, probably more or less making up for the longer time it takes to finish a PhD.) I agree that traditionally legal academics have been given tenure on the basis of less work and work that has been less extensively reviewed than in many academic fields, but unless that's just what you meant I'm confused by the remark that tenure is granted "earlier" in a law school.

8/04/2008 2:09 PM  
Blogger Jeffrey Harrison said...

That's a good question and I am pretty sure your six year comment is correct. You might take a look at the article but I think the idea is that a Ph.D may take several years and as Ackerman puts it "a philosopher, say, is lucky if he has received tenure at a good university by the age of thirty-five." If I were expressing my own view it would be more a question of years in a research oriented environment. A Ph.D. area usually means more time in writing and researching.

8/04/2008 3:43 PM  
Anonymous Matt said...

Thanks for the clarification, Jeff. While some philosophers do get tenure before 35 it's less common now, though often for pathological reasons (much more time taken to degree- I think 7 years is now an average though it might be a bit more or less, and many people working one-year jobs for several years before finding a TT job. Such paths don't seem conducive to research.) Maybe it all just points to the utility of looking for a well-worked out and plausible research program, a history of publications, and a more strenuous tenure review. I'd certainly think all would be reasonable things to put in place.

8/04/2008 5:46 PM  
Blogger Fat Man said...

The future of legal scholarship will be like the past only more so. It will be more hermetic, more oriented towards subjects that nobody but other law profs care about and more and more ignored by the legal profession. The real question is why are we paying you people?

8/05/2008 1:09 AM  
Blogger Jeffrey Harrison said...

It depends on who "you people" and "we" are. If you people are private school law teachers, I am not sure. It has something to do with supply and depend but I am lost on the demand side of the market. If it is public school teacher I think you pay us to redistribute wealth from the lower classes to higher classes with having to be too open about it. And you do it because you were told to be those who actually have some control (or did when this all started.)

8/05/2008 1:55 PM  

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