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January 18, 2006


Jessica Silbey

Lest this turn into a conversation with just the contributing bloggers on Lawculture, I will raise only few issues. I wonder what "real scholarship" is in the legal realm? Most disciplines have a methodology that enables evaluation and criticism of the scholarship and/or knowledge it produces. What is the methodology of legal scholarship? What kind of knowledge are law professors in their law review articles producing? And, do we teach that methodology as law professors or are we teaching something else? (I am thinking, off-handedly, about the AALS theme this year of empirical scholarship. What role does empiricism play in the production of legal knowledge and why has it taken so long to catch on in law faculties?)

Rosa Brooks

I think you've put your finger on it, Jessica: it seems to me that there's amazingly little consensus on what constitutes "good" or "real" legal scholarship. But that also probably deserves its own post!

Ethan Leib

Just to paste here what I said in full:

"I'm with you normatively. . . .

Of course I agree that one COULD write path-breaking books that have never been published before as articles. But if one had a really original and path-breaking idea, s/he would be crazy not to try to get it out as an article first. Books take much longer (unless you've got some special connections or Posner-like speed) -- and the cycle of article publishing actually helps you take ownership of an idea faster.

My sense from having a book out (which started as a law review article!) and one forthcoming this year (which didn't!) is that they do indeed require a higher level of popularization. Publishers (even academic ones) rightfully want to know that your book can reach a wider audience than an academic article. Academic presses routinely refuse to consider unedited (read: unpopularized) dissertations. This has some benefits, of course: books tend to be more readable than articles or dissertations and can often get a wider audience consequently. But it has some drawbacks if people set their tasks as only writing books, especially us law professors who like the limelight and media attention. Careful and excruciatingly researched books are relatively hard to publish and hard to get an audience for. The process may be less depressing than negotiating with students but it is still long and arduous. The worry is that even the books will be of a certain form -- something just shy of real scholarship. And I believe there is reasonable cause for concern about this."

Dean C. Rowan

One hardly knows where to begin to address the manifold generalizations and cliches in this and its related discussions! Academic books require a "higher level of popularization" than articles? Books "tend to be more readable than articles"? And so books turn out to be "something just shy of real scholarship"? Then there's the rehashing of weary complaints, many nevertheless legitimate to my mind, about the nature of student-edited law reviews.

I'm not a legal scholar; I'm a librarian (although I did indeed work on a law review as a student, and so I'm familiar with their virtues and vices). I may very well be missing the point of these claims, but then in my line of work I do tend to see lots of books, articles, blog postings, working papers, and so forth, and I also tend to regard them as substantive resources, not merely as widgets. It is a source of some anxiety to hear scholars wondering, in one breath, about the wholesale value of a format in which to produce scholarship (books vs. articles, certainly a good strategic question about how to advance one's career) and yet also about the more introspective, philosophical notion of what "real scholarhip" might be. How and why are scholars themselves confusing these questions, one fundamentally practical, the other almost esoterically theoretical? What does it mean for books to be, generally, more "popular" (in terms of their substance) than articles? University presses have been distressed for years about the relative unpopularity of their output. Recently, they have begun working more pointedly to "market" their products, not only after publication, but at the point of selection and during editing, but this can't mean that there has been a concommitant widespread "popularization" of academic--even just academic legal--scholarship in book form.

So much for my anxieties. An influential legal book that did not emerge from law review articles? How about, off the top of my head, Robert Cover's Justice Accused? An approach to the question, "What is scholarship"? It's not precisely on point, but Randall Collins' Sociology of Philosophies views the matter from a w-i-d-e perspective. See a description (courtesy of Harvard UP) here: http://www.hup.harvard.edu/catalog/COLSOC.html. Rather than answer the ontological question, it examines how (philosophical) knowledge expands and changes.


Ethan Leib's comments are quite astonishing.

The articles v. books question usually depends on the field. Historians and English professors are judged on their books; economists write articles. Does this mean that historical work is less "scholarly" than economic work? That would seem to be an absurd suggestion on its face.

What's more, economists have to compete, and be subjected to peer review, to get published in an academic journal. Given the bizarre law-review system--not based on peer review, and with an almost infinite number of outlets (multiple ones at each law school)--one would have to doubt that getting accepted for publication at a law review says anything about the quality of the work.

I agree that the underlying questions are: What IS legal scholarship? And are all law professors "scholars"? I think books can be every bit as "scholarly" as articles. (How could they not be?)) But I would also say many law professors do not really aspire to be scholars. Like Rosa Brooks, they really want to be a "higher" form of opinion journalist. That's fine, too.

Ethan Leib

I fear I'm being fairly widely misunderstood. I have no doubt it has to do with how I am expressing myself. But instead of continuing to try to articulate what for me is such an obvious point that it can't be seriously seen as controversial by those familiar with the legal academy, I'll only provide links to others who are making similar points about this navel-gazing "book" issue more clearly than I am:



No one disputes that books can be scholarship. To the extent that I have been imputed with the insane proposition that books aren't and can't be scholarship in the legal academy, I deny the charge. I was making a descriptive point that is obviously a generalization -- but not one that I think is especially controversial. There are a handful of major scholarly books written by legal academics -- many of which started as articles. If Rosa was planning on not writing articles and writing scholarly books instead, no one could give her a hard time about it (though, as I pointed out, this doesn't save you much time, debasement, or effort -- and means you won't get your ideas into print for a long while). My original point was that if Rosa abandoned scholarly writing for more popular writing -- even if that popular writing included books (something many law professors decide to do post-tenure) -- that might be a cause for concern for her institution and younger scholars who also write popular articles.

Anyway. Onto to substance...


I think there is a fundamental point being missed in this discussion because (I assume) most of the commenters and the original poster are professors or legal scholars in general.
If law reviews are so "badly" done as a way to contribute to scholarship, don't you think scholars would go somewhere else (in beyond trivial numbers) and things would change by market forces? With so many law reviews in existence today, if there was "a better way" wouldn't a law review trying to gain prestige have employed that method already? The truth is that law reviews have gone through a process of "genre evolution" (or specialization, if you prefer) to become what they are today, gaining such disctictive features as heavy footnoting, dry tone, and length. These features of the law review genre, however, were not created purely to antagonize junior professors attempts at scholarships, but were the result of genuine requirements of the legal field. (For example, what would happen if a scholar did not "heavily footnote" his article --> he would be criticized by other scholars for not supporting his assertions!)
My second point is that while law review articles to professors may seem like a purely academic enterprise, they are not in fact limited to that role. While a main purpose of articles in other fields of study is the spead of ideas and information, in the legal field they occupy another role as well: that of shaping the future of the law. Every year courts tap law review articles for new and as-yet-undiscovered ideas that become actual law. The ideas get not just read, but applied by the courts. This is another underlying reason behind those "negative features" in law reviews: so that other scholars, critics, and most of all, courts that would like to implement the ideas of a law review article can do so with research and caselaw to back up that author's point.
For example, in biology, how would a scientist apply a collegues work from a article without detailed directions from the original scholarship? (Would it be easier if every person who sought to apply that scholarship emailed the author for his sources and exact directions?) Similarly, courts need heavy footnotes, dry tone, and depth in articles to be able to apply them "in the field" so to speak.

(Caveat: I don't think it would be a bad idea for a forum that doesn't have the same "negative" features as law reviews, but authors would have to recognize that their work could not easily be applied by courts or other scholars. I think blogs fill in this gap nicely actually.)


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