by Thomas C. Galligan,
“So, what do
you want to talk about?” Amanda
about scholarship?” Tony
be cute, although I would find it fascinating,” Tony confidently smiled back
sure that you would but let’s try to be a little more general than that.
Who do you write for?” Amanda
mean for whom do I write?” Tony
edited her question. “I write
won’t bite but I will take that as a nice little pseudo-poetic lead-in.
You mean you write for deans at other law schools.
Even though you are one of my mentors and closest friends, that is what
I am Tony. I am a dean at another
are that Amanda. And while I can
still say your old friends miss you; our new faculty don’t even know who you
are so I will admit that you are a dean at another law school.
But why would I write for a dean at another law school?”
Tony asked, with a trace of seriousness in his voice.
could be several reasons but one might be that when writing for deans at other
law schools you send them reprints of your articles and they see what and
where you published and they are impressed by what you do.
Thereafter, they think highly of you and of your law school.”
mean they would rank us higher in the yearly rankings.”
mean you might mean that or you might rank us higher or both.
And, by the way, do you think the deans to whom I send my articles
really read them? But to get back
to the heart of this conversation ( I think), of course I think my work should
be highly regarded and well respected and that our school should be ranked
higher than it is but that–the indirect and unlikely higher ranking from one
piece of scholarship–seems a feeble
and hollow reason to write.”
you write for some greater purpose?” Amanda
course I do. I write to improve
the law.” Tony thrust back his
shoulders, held up his chin and put his right hand over his heart.
me reask the question: for whom do you write?”
Amanda asked. “Do you
write for other law professors?”
answered Tony cautiously. “I
write for them in part.”
you write for them so they will read your stuff?”
sound like my kids when they were three, always asking why.”
Tony was trying to deflect the question.
kids were like that at four,” Amanda responded.
must be brighter.”
love you Tony so I’d rather not go there.
Why is the question.”
do I write for other professors?” Tony
want them to read my material_______”
they think higher of you and of your law school and rank you higher in the
yearly rankings?” Amanda
you are becoming a cynic; you have been a dean too long.
betcha. But is that the reason
you write for other professors?”
never get to vote in the yearly rankings,” said Tony.
“I’d like to. Amanda, do you rank your school in the yearly
ratings?” Tony asked.
do,” Amanda answered.
you think there is a conflict of interest there?”
Tony raised his right eyebrow.
guess there is,” said Amanda, truly considering the issue.
bet you rank it pretty highly,” said Tony.
a great school,” said Amanda.
you think most deans think that about their schools (and not necessarily
yours)?” Tony asked.
would certainly hope so,” said Amanda.
point exactly.” Tony licked
his lips. “And you say
professors get to vote too–or at least some professors?”
wouldn’t they have a conflict too?
Wouldn’t they tend to rate their own law schools high?”
might,” said Amanda.
they might rank their alma maters pretty high too,” said Tony.
“And I would also think that the students who vote have a conflict;
they would rank their own schools high and others low.”
Tony. Students don’t get to
vote. Let’s get back to the
scholarship questions.” Now,
Amanda verbally tried to steer the conversation back to where she wanted it.
Students don’t get to vote at all?
I suppose you could argue that students have no basis to form an
opinion about any law school other than their own but do many professors or
even deans? Certainly, they
don’t have knowledge about all other law schools.”
but if you really don’t have knowledge about a place you can check that
After all we are an honorable profession.”
Amanda said. “Tony, I
would like to talk about scholarship but I feel compelled to say that
students do get to vote in some rankings.”
do deans and law professors vote in those rankings in which the students
vote?” Tony asked.
don’t think so.”
deans and faculty vote in some rankings and students vote in others?”
in the most publicized rankings deans, faculty, judges, and lawyers
vote.” Amanda added.
I suppose I could ask the same series of questions about judges and lawyers
that I asked about deans and law professors.
One, how are the judges and lawyers selected?
Two, do they vote on the law schools they attended?
Serve as adjuncts at? Give
lectures at? And, three, do they
vote only on those schools at which they have substantial knowledge or
others as well?”
questions. Can we get back to
scholarship?” Amanda asked.
When we got diverted to rankings we were talking about why I think
law professors are one of my audiences, correct?”
said Amanda. “And I, perhaps
unwisely, asked you if you wrote for other professors so they would think
better of you and your law school.”
and we got sidetracked on all that ranking stuff.”
did,” said Amanda.
how it might relate to scholarship.”
did,” said Amanda.
now it is time for me to say once again that I write in order to improve the
law and that one of my target audiences is other scholars who can read my
work and engage in a scholarly dialogue about the best approach to a legal
problem. Sound good?”
sounds great,” Amanda said, “but is it true?”
it’s true,” answered Tony.
do you write for judges and lawyers?”
Amanda asked. “It would
seem to me that if you wanted to improve the law judges and lawyers would be
one of your primary audiences.”
legislators.” Tony added.
legislators but these are your audiences Tony.”
course I write for judges, legislators, and lawyers,” said Tony.
they can both read and act upon your work,” said Amanda.
but so can other scholars,” said Tony.
writing on the same or similar issues.”
let me ask you about accessability of your material–your scholarship.,”
do you mean?’‘ Tony inquired.
I mean is that if you write about economics, psychology, sociology,
philosophy, etc., will your work be accessible?”
suppose that depends upon how well I do it, doesn’t it?
Amanda, you are not discounting the importance of other disciplines
in analyzing or understanding law are you?”
course not. But I wonder if at
some point the level of the inquiry inspired by the other discipline does
not make the work less accessible to a legal audience.”
audiences in other disciplines can appreciate the work,” said Tony.
don’t doubt that but the legal audience becomes more removed from the
scholarly endeavor.” Amanda
the legal audience who analyzes law from a similar perspective,” Tony
but depending upon the perspective selected that legal sub-audience is
smaller than the whole.” Amanda
furrowed her brow.
Amanda continued, “does the analysis of legal problems from other
perspectives have real meaning for judges, legislators, and lawyers?”
don’t know. Certainly the law
and economics movement has had a real impact,” Tony said.
it has indeed. But some of that
is not generally accessible to a professional audience.”
“ said Tony. ‘But what’s
your point? I’ll ask again.
Are you discounting that kind of interdisciplinary scholarship?”
at all, although I question somewhat the interdisciplinary title.
Some of what many might call interdisciplinary scholarship is really
just applying another discipline to a ‘legal’ issue. It is great stuff
but it does not really get down and crunch doctrine, as in cases and
statutes. That is not its
purpose. But it is not always
dealing with what I might call day-to-day legal issues.
For instance, when I was taking Law and Economics during my LL.M.
program–a course I thoroughly enjoyed and which has been incredibly useful
to me–it took me about one full week to realize that some legal economists
used the phrase “strict” liability to mean liability without fault in a
rather general way free of many of the ambiguities that lawyers encounter
when trying to define strict liability.
That is, is strict liability Rylands-type strict liability?
Is it strict products liability, which may not be so strict at all?
The point is that some of the analysis was much more economic than it
was law and economic.”
Tony said, “You can’t deny
that the influence of that work on economic thought and potentially on
public policy may be critical to future legal regimes.”
can ask for proof but I won’t deny it.
What I will say is that much of that very valuable work may not reach
most judges, lawyers, and legislators trying to solve problems in more
traditional concrete cases and legislative contexts.
And I can say that type of interdisciplinary scholarship may be
increasingly prevalent in our law reviews.
And it may have increased importance in how law schools view each
I can translate, do you mean that rankings may be heavily influenced by the
placement and publication of non-traditional legal scholarship?”
think that might be true.”
I want to respond but I want to state clearly for purposes of this
conversation and the law review record that I very much value traditional
scholarship. There is definitely
a place for that.” Tony said.
you sound so diplomatic.”
am, “ said Tony. “Maybe I
should be the law school dean.”
tempt me Amanda.”
won’t and we’ll get to how this relates to being a law school dean
later. After all that is the
subject of this symposium and we need some tie in to that,” said Amanda.
sure do and since this is my third or fourth conversation like this in this
symposia series I wouldn’t want to rock the proverbial boat.
I would say however that the moniker ‘traditional legal
scholarship’ is not as clear as one might desire.
It certainly involves a close analysis and reading of cases,
statutes, regulations and more. It
involves stacking up cases (and other materials) against one another and
pointing out and trying to eliminate or explain perceived inconsistencies.
And it involves making predictions about what might happen and
proposals for changing the law.” Tony
is a good, if not totally complete explanation of traditional legal
scholarship,” said Amanda.
not done,” said Tony.
problem. But I would like to add
to that nice but not necessarily complete statement about traditional legal
scholarship that traditional legal scholarship has always employed a fair
amount of ‘law and ____’ analysis.”
so?” Amanda asked.
what we are calling traditional legal scholars have long employed some
economic thinking in analyzing law. Risk/utility
analysis in negligence cases predates the 1970s in both court decisions and
literature.” Tony said.
all sorts of legal scholars have looked to history since forever to explain,
interpret, and criticize law.”
said Amanda again.
they got it right or wrong, psychology or at least what scholars thought was
psychology has been employed by legal scholars for years.”
see your point,” said Amanda.
would add that one problem with what you call traditional legal scholarship
is that it’s hard to evaluate against any sort of standard.
Someone crunches cases and statutes and comes up with some solution
slightly influenced by history, slightly influenced by efficiency, and
slightly influenced by logic–with maybe a big dose of undisclosed bias
thrown in. Is it good?
Is it bad? How do you
know?” Tony asked.
don’t know,” answered Amanda.
“But I also don’t know if somebody’s article on law and
anthropology is good or bad because I don’t know enough (if anything)
an anthropologist might,” said Tony.
anthropologist might but then would the anthropologist be able to say
anything about the legal aspects of the piece other than how they related to
the anthropology. And would it
mean much of anything to a judge, a lawyer, or a legislator?”
understand your point. But do
you disagree with mine about the problems with traditional legal
scholarship?” Tony asked.
don’t although we are on the edge of a debate about whether law or
traditional legal scholarship can have any real meaning outside of a
particular time and place and whether it is inherently political in all its
aspects and as biased as the culture which creates it.”
are on the edge of anarchy and nihilism and meaninglessness you mean?”
And I suppose you’ve noticed that this year in this symposium we
are not talking anywhere. There
is no backdrop of the AALS recruitment conference or the Hiring Conference
or the Southeastern Association of Law Schools meeting, and no footnotes.
We are just engaged in stark, backgroundless dialogue.”
did notice that Amanda. It’s
like Fritz Lang directed it. But
we don’t want to give away all the symbols to the readers; we want them to
find some themselves.”
thing Tony,” said Amanda. “But
let’s get away from the edge of nothing.
We know it’s there and we know we are close to it but we won’t
jump in this year. And we both
agree that there is value to law and _____ scholarship and value to
traditional scholarship. We also
agree that there are down sides to both.”
am willing to say that is the case,” said Tony.
I think it is fair to say we are generalizing and leaving out of our
conversation all sorts of scholarship in other genres that we might call
writing about pedagogy, narrative scholarship, and more.”
will agree to that as well,” said Tony.
“But I bet that if we were to push it we would find that we agreed
that there were benefits as well as potential problems with those scholarly
endeavors as well.”
wouldn’t doubt it but I won’t go there.”
I do want to get back to traditional legal scholarship for a second–again
realizing we are on the edge of meaninglessness.
Even if traditional legal scholarship has long employed inconsistent
references to and reliance on other disciplines and even though the bias of
the writer and culture are inherent, the traditional legal scholarly
treatment of an issue uses terms, phrases, and techniques with which I, as a
lawyer, am familiar. Consequently,
I have some rudimentary ability both to evaluate (on some level) and
criticize. I lose that ability
with some interdisciplinary legal work.
And I do not think I am being anti-intellectual in saying that,”
let’s get back to your scholarly audience.
I can make a case that much traditional legal scholarship aims at
judges, lawyers, and legislators to try to educate them and influence them.
That scholarship seeks to get them to read the scholarship as lawyers
and rely upon it in their actions. It
has the potential to create a dialogue not just between scholar and scholar
but between scholar and legal decision maker.”
see your point,” said Tony. “But
isn’t that still the case today?”
may be,” said Amanda, “but I have some concerns.”
as?” Tony asked.
is that as traditional law reviews have grown in number, judges and lawyers
read them less. One could
persuasively argue that there are too many law reviews and too many other
sources of material of which to keep track.
And many of them, like many CLE programs, are not as carefully
crafted or as carefully researched as the traditional law review.”
just a paean to the good old days when things were simpler,” said Tony.
said Amanda. “But I also worry
that as law reviews have included more and more interdisciplinary articles
judges, lawyers, and legislators have turned to them with much less
frequency. To put it bluntly,
legal decision makers have turned off to most law reviews.”
said Tony, “would be unfortunate and would be anti-intellectual.”
would but it might be attributable to the fact that the interdisciplinary
material is inaccessible to most legal decision makers.”
let ‘em skip to the next article,” said Tony.
reading this dialogue may have already done just that,” said Amanda.
“And that is no doubt the best answer.
And I have no doubt that legal scholarship as a whole is richer and
broader than it has ever been before.”
too. But if you are right and
legal decision makers read law review articles less than they used to, that
is unfortunate,” said Tony.
is indeed,” said Amanda. “And
if we as law professors lose our realistic and practical link to the
profession, our scholarly discourse does change radically.”
it does,” said Tony. “But
let’s stick this out here for a second to analyze a side point.”
of what you say has made me think,” said Tony.
good. Thank you for the
compliment. But what has it made
you think about?”
made me think that much of what many legal decision makers have to deal with
day in and day out are matters of state law.
Certainly we are all interested in how a particular state’s
solution to a legal problem fits within the broader context of the nation
and hopefully, today, the world. But
the fact remains that much of what we lawyers deal with occurs at the state
level.” Tony paused for a
what are the implications of that for the points you have articulated?”
that one is that serious legal scholarship–most probably of the traditional
variety–is very important to law and to law makers,” said Amanda.
it also may mean that as legal scholars turn away from that scholarship as I
think they have tended to do, then they have less impact upon the development
of a large part of the law - law at the state level.”
if the academy turns away from scholarship focusing on law at the state level
then state level legal decision makers will look less and less to law reviews
and law professors for guidance,” said Tony.
we have lost an important part of the dialogue about law that can go on
between scholar and legal decision maker.”