Dark Bilious Vapors

But how could I deny that I possess these hands and this body, and withal escape being classed with persons in a state of insanity, whose brains are so disordered and clouded by dark bilious vapors....
--Rene Descartes, Meditations on First Philosophy: Meditation I

Home » Archives » June 2004 » My periodic legal scholarship rant...

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06/25/2004: My periodic legal scholarship rant...

Which I'll put "below the fold" since I'm pretty sure that not all that many readers are interested....and considering that my readership isn't that wide to begin with, that may put this post in the running for "least read" on this blog....

Brian Leiter, for reasons known but to him, chose to repost an entry of his from back in August of last year regarding the seemingly lax standards for tenure in law schools. What interests me in his post is that much of it confirms something that I've believed for years: traditional legal scholarship sucks.

Why is it so easy to get tenure in law schools?


So asks a colleague in philosophy, who was recently a tenure referee for a law professor at a very reputable law school who got tenure, notwithstanding what struck the colleague as quite weak work. The answer is somewhat complex, and perhaps a bit speculative, but it goes something like this:

(1) Up until roughly the 1970s, law schools were essentially "trade" schools, tightly linked to the profession and to practice: law professors digested what judges were doing, and explained it to lawyers and judges, and to their students.
Actually, from my experience in law school in the early 1980's, it sure as hell seemed to me that Northwestern University School of Law was still a trade school. In fact, I've often been struck by the feeling that this is one of the reasons that law school was such hell for me, especially compared to college. I got no feeling of intellectual freedom or appreciation of intellectual inquiry at law school. In a way it was very much like high school (which I also hated)--a way station on the way to something more important (college or a job in HS; a job in law school).
(2) When law schools were essentially "trade" schools, the traditional qualifications for law teaching--excellent grades in law school classes, a published student note in the Law Review (which digested what judges were doing, and explained it), clerkship(s) with excellent judges and/or practice experience with excellent lawyers--worked very well: unsurprisingly, someone with all those qualifications was usually damn good at digesting what courts had been doing and explaining it to judges, lawyers, and students.

(3) Folks with those qualifications also could earn a lot of money in the practice of law, and since the practice really wasn't that different than the scholarly side--a bit less relaxed, to be sure, a bit less reflective--law schools, to recruit these super-smart lawyers, had to both pay reasonably well (better than the liberal arts, to be sure!) and offer something that practice couldn't necessarily offer, namely, job security (i.e., tenure, or life-time employment, barring gross misconduct). And since the traditional qualifications were actually good predictors of success as a legal scholar on the "trade school" model, it was hardly problematic to start with a powerful presumption that everyone you hired, who had the traditional qualifications, is someone you had just hired for life.

(4) Starting in the 1970s, this whole paradigm fell apart, at least on the scholarly side. Starting in the 1970s, law schools started to move away from the trade school model, and become more closely integrated with the rest of the university. The rise of interdisciplinary scholarship began in earnest. The University of Chicago Law School, which in the 1940s was considered clearly the inferior of Northwestern, was the pioneer in law & economics in the 1970s, and moved, accordingly, in to the very top ranks of law schools.
What interests me here is that, as a student at "crosstown rival" Northwestern, while Chicago had passed us up long ago there was poorly disguised contempt for Chicago at Northwestern Law School. "You go to Chicago if you want to be one of those ivory tower types" was a commonly voiced criticism. Of course, it was "well known" (i.e., widely believed at Northwestern without ever examining the actual pass rates that I recall) that Chicago's pass rate on the Illinois Bar Examination was much worse than Northwestern's, thus proving that Northwestern provided a superior education, etc.
Michigan, which in the 1970s was a top five school on a par with Stanford and Columbia, began hiring PhDs in history, in sociology, in philosophy. A quarter-century later, the vast majority of faculty hired at top law schools have not only JDs, but PhDs in some cognate discipline; and even those without PhDs typically do interdisciplinary work, though often not of high quality.

(5) The interdisciplinary turn in legal scholarship, and the move away from "trade school" scholarship, meant that law schools, especially "top" law schools, became increasingly remote from the practice of law. This development was immortalized by Judge Harry Edwards of the U.S. Court of Appeals for the D.C. Circuit, who wrote a 1992 article on "The Growing Disjunction" between the world of practice and the world of scholarship. By then, however, it was far too late to change things. Yale Law School, the leading per capita producer of new law teachers (by a dangerous margin), and Harvard the leading gross producer of new law teachers, were squarely in the interdisciplinary, non-trade school camps--which meant that the law teachers they were training who would take up posts at Podunk U. had a conception of what was worth doing in legal scholarship that would simply reinforce the growing disjunction.

(6) Yet the change from a trade school to a PhD-program model for legal scholarship did not result in a change in tenure standards. (For awhile it didn't even result in a change in qualifications for new hires, which partly accounts for the huge amount of incompetent philosophy, history, economics, social science, etc. that appeared and still appears, alas, in law reviews. That's now changed in economics and history and some of the social sciences; it's starting to change in philosophy, though more erratically.)

(7) The crucial question is: why was there no change in tenure standards given all the other changes? After all, all those clever, scholarly JD/PhDs were certainly smart enough to be partners at Cravath, Swaine & Moore (New York City's "premier" corporate law firm) but they certainly weren't so inclined, and their scholarly work didn't lend itself to that career path. Yet still the salaries remain high and the tenure standards relatively low (though that is starting to change a bit--more on that momentarily).

On this point, we can only speculate, but here are a few at least plausible hypotheses. First, old habits die hard (just like old reputations!): if most of the faculty was granted tenure without a real tenure review, of course they're inclined to do the same for the next generation. That's just the way it's done, after all. Second, because publication in student-edited law reviews is still important for tenure, and because student-edited law reviews have no intellectual standards (the students are especially ill-equipped to evaluate interdisciplinary work, unless, by chance, the editors include PhDs from other disciplines), any assistant professor who isn't asleep can produce enough work in prestige fora for tenure purposes.
My emphasis here, of course. I provide the emphasis because this is something that struck me forcefully from the very beginning of my legal career--why on earth did established legal scholars--some of purported prominence--actually humiliate themselves (that's the only spin I could put on it back then) by allowing individuals who hadn't even finished their initial education in the field to pass judgement on their work? Not to mention that this system means that there is no such thing as peer review with respect to publication in the profession's most prestigious professional journals! As a freshman in law school, possessed of a quite fresh bachelor's degree in philosophy, I couldn't imagine any philosophy professor who'd consider me qualified to decide if his/her work was publishable or not.... Obviously, I wasn't suited to a legal career back then; pity it took me so long to realize that. *grin*

Len on 06.25.04 @ 07:49 AM CST


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