LawCulture: What Counts as Legal Scholarship?

November 2006

January 19, 2006

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What Counts as Legal Scholarship?

Prompted by Rosa Brooks’ post and the comments, among them from our friends at Prawfsblog, I thought I’d take the interesting conversation on a bit of a tangent. As one who has straddled two disciplines for most of her academic career – literature and law – I am acutely aware of the diverse methodological approaches to knowledge production in the academy. The Ph.D., for example, is the training ground by which scholars of literature (or history or sociology or…) learn what counts as foundational texts and a common language in their field. Through this study, we also are supposed to learn what counts as good scholarship. We learn common evaluative methods, teachable and reproducible ways to assess and analyze assertions about the subject matter in our field. In literature departments, for example, we study specific literary genres or national literatures. We learn to evaluate and critique the canon of texts that forms the basis of the common language in the field. And we learn to produce our own assessments of the literature at issue by understanding that not all interpretations of a piece of literature are equally good. Some are more persuasive than others because they mobilize evidence in the text and about the text in coherent and sustainable ways. Some are outright wrong because they draw on unrelated theoretical musings to illuminate some theme in the text that fairly can be said to be absent.

Other disciplines require of their scholars an understanding of quantitative methods. Knowledge, in these fields (or part of these fields – I’m thinking of some aspects of political science, sociology and economics, for example), is produced by the evaluation and interpretation of empirical data, which must be collected according to certain guidelines. Adhering to agreed upon methods of data collection and analysis is crucial to sustaining the authority of the knowledge that is produced in these fields. Sometimes scholars debate the methods by which the data was collected as a means to critique the knowledge that was produced by it; other times, scholars will debate what the data means, agreeing that its collection is otherwise uncontroversial. In either case, however, there is a foundation – a canon and a methodology – on which the discipline is built and by which scholars are trained.

So what of legal studies and scholarship? Can we adequately compare the Ph.D. training of a scholar in literature or the social sciences with a J.D. in law? Is the better comparison with an S.J.D.? If yes, what can we say the legal methodology is? What is the canon? And if we can agree on a methodology and a canon – a tall feat, I would say – is that what law schools teach? And if not, where do law professors (dare I say, legal scholars) get their training, their expertise? My sense is that there is a kind of identity crisis in legal scholarship and law schools about this precise issue, a problem of “where do we fit” and “where do we get our authority” vis a vis the rest of the academy. I see this as the law professor job market is more and more weighted by “hot candidates” with Ph.Ds who have already published several articles. No longer is the candidate stellar because she has scholarship potential (whatever “scholarship” means) but she is stellar because she has already demonstrated how “scholarly” she is. By comparison to other disciplines, what do you think “scholarly” mean in the legal context?

Posted by Jessica Silbey on January 19, 2006 at 10:33 AM in Inside the Law School | Permalink

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» Hello to Law Reviews - Goodbye to Student Editors? from Law & Society Weblog
[Jurisprudence] Rosa Brooks over on the new and enjoyable LawCulture blog has startedperhaps I should say, rekindleda discussion on the sense and nonsense of law-review articles. There is a response on PrawfsBlog by Ethan Leib and Paul ... [Read More]

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January 19, 2006

What Counts as Legal Scholarship?

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