Legal scholarship is at an inflection point because the legal education industry, to which legal scholarship is merely an internally overvalued appendage, is passing from a period of affluent abundance to a period of relative austerity. Scarcity stimulates self-examination. This essay describes how the population explosion in American law schools during the 1990s and the simultaneous rise of the U.S. News rankings mania created a kind of tulip bubble in legal scholarship – a bubble that is rapidly, and properly, deflating. I make several concededly retrograde recommendations for dealing with a post-bubble world, including changing law school hiring practices to favor professors with more legal experience than has long been the fashion, assessing scholarship more by effect and less by placement, and devoting more of our scholarly attention to questions of state law and practice.
These suggestions all flow from the basic premise that we should more consciously encourage, even if we do not limit ourselves to, producing legal scholarship that has practical value to legal and business professionals and to policy makers at every level of American government. That premise, in turn, is based on the conviction that a modestly more pragmatic approach to the scholarly project is good for society and is, in any case, a sensible response to the parlous state of the legal education industry. Local legal scholarship is an important area of legal research that seeks to provide an understanding of the legal systems, institutions, and practices within a particular jurisdiction. It focuses on the interpretation and application of local laws, rules, and regulations, and seeks to contribute to the development of the legal system within the local community. In this article, we will explore the value of local legal scholarship and its contribution to the development of the legal profession and the society as a whole.
Local legal scholarship provides an in-depth understanding of the legal system. One of the primary values of local legal scholarship is that it provides an in-depth understanding of the legal system within a particular jurisdiction. Local legal scholars are intimately familiar with the laws, rules, and regulations that govern their community, and are able to provide insights into how these laws are interpreted and applied in practice. This knowledge is essential for lawyers, judges, and policymakers who must navigate the legal system on a daily basis. For example, a local legal scholar might provide a detailed analysis of a recent court decision, highlighting the key issues that were considered by the court and the factors that influenced the final outcome. This type of analysis can be incredibly valuable for lawyers who are litigating similar cases, as it can help them to anticipate how the court might rule and to prepare their arguments accordingly. Local legal scholarship supports the development of legal institutions.
Another important value of local legal scholarship is that it supports the development of legal institutions within a particular jurisdiction. By providing an understanding of the legal system, local legal scholars can help to identify areas where the system may be functioning suboptimally and suggest ways in which it can be improved. For example, a local legal scholar might identify a particular area of the law that is unclear or ambiguous, and suggest ways in which the law could be clarified or reformed to provide greater clarity and consistency. Alternatively, a local legal scholar might identify a gap in the legal system, such as a lack of access to justice for marginalized communities, and suggest ways in which this gap could be addressed through changes to the legal system.
Local legal scholarship fosters community engagement and civic participation. A third value of local legal scholarship is that it fosters community engagement and civic participation. By providing insights into the legal system and its impact on the community, local legal scholars can help to promote public understanding of the law and encourage greater civic engagement. For example, a local legal scholar might write an article on the impact of a particular law on a marginalized community, highlighting the ways in which the law has perpetuated systemic inequalities and suggesting ways in which the law could be reformed to provide greater protection for vulnerable individuals. This type of analysis can help to raise awareness of important legal issues and promote greater public engagement in the legal system. Local legal scholarship supports the development of legal professionals. Finally, local legal scholarship supports the development of legal professionals by providing a platform for legal education and professional development.
Local legal scholars can provide insights into the legal system and its workings that are not available through traditional legal education or training programs. For example, a local legal scholar might offer a continuing legal education course on a recent development in the law, providing practical insights and guidance to lawyers who are navigating this area of the law in their practice. This type of training can be incredibly valuable for lawyers who are seeking to develop their skills and expertise in a particular area of the law. In conclusion, local legal scholarship is a valuable area of legal research that provides insights into the legal system within a particular jurisdiction. By providing an in-depth understanding of the legal system, local legal scholarship supports the development of legal institutions, fosters community engagement and civic participation, and supports the development of legal professionals. As such, it is an essential component of the legal profession and plays a critical role in promoting the rule of law and protecting
Storytelling-particularly storytelling written from an “outsider’s” perspective-is a new form of legal writing that appears with increasing frequency on the pages of law reviews and specialized legal journals. At the same time, critics are questioning whether storytelling deserves to be classified as a form of legal scholarship. Perhaps storytellers are to be regarded as talented and creative writers, but do they truly deserve to be called legal scholars? At first, the debate was local, arising in the context of the deliberations of appointments committees and tenure committees. Now the debate is national, and it is being conducted on the pages of the most prestigious law journals.
There is general agreement that legal cases are “stories” and that ”the common law” emerges from the judicial resolution of “cases and controversies. “lo Most law schools teach by the “case method,11 and most casebooks are filled with ”true stories,” although sometimes law professors write “fictionalized stories” for classroom discussion, such as the “Case of the Spelunking Explorers.,12 Traditional law review articles are expected to describe legal cases, analyze appellate opinions, and propose sound solutions to the thorny problems raised by “real world” controversies.13 Given the general agreement that “cases” are central both to making law and teaching law, why is there such a vigorous debate over the propriety of “storytelling” as a form of legal scholarship?
Other storytellers express a willingness to adhere to the nonns of legal scholarship if (but only if) their topic can be properly developed within the confines of the traditional fonnat. For example, William Eskridge, an openly gay male law professor, readily acknowledges the value of telling stories within the traditional mode.27 However, he simultaneously defends the occasional necessity of turning to pure storytelling, as when legal refonn appears to be unattainable unless and until there has been a “rupturing” of the societal “status qu.Thus, he suggests that a gay law professor might tell a personal story of being the victim of employment discrimination,29 followed by a traditional, rigorous legal analysis of the application of equal protection principles to governmental discrimination on the basis of sexual orientation post-Romer.30 But that same gay law professor, confronting the universal prohibition on samesex marriage, might find it necessary to engage in pure storytelling,31 hoping that his stories would enable the reader to identify a sufficient number of commonalities between opposite-sex and same-sex intimate relationships to warrant a change in the law.
One thing we in academia are often hearing about from members of the bar and bench is how irrelevant much legal scholarship is for practice or how too much of legal education is “theory driven” instead of being “practical.” The Chief Justice himself has weighed in, suggesting that too often law reviews are filled with content he finds of little value. Many people have addressed this issue. For instance, there is this nice bit from Sherrilyn Ifill. What the Chief Justice Should Read. But it seemed worthwhile to weigh in again on this question since it is a complaint also raised in connection with the general fusillade of criticism launched at legal education, that is, that one reason legal education is too expensive is that professors spend too much time on this relatively worthless enterprise. I am not going to try to argue how much is the appropriate amount of time to spend on scholarship. But I do want to take issue with the issue of its worth as measured by its impact in the world. It has more impact than these criticisms reflect.
The criticism of scholarship is intertwined though with another criticism, this about the utility of practice to scholarship and teaching and whether law schools pay enough attention to practice in their hiring. That old canard, “those who can do and those who can’t teach” rears its ugly head in the comments section to the piece cited above. That too deserves some rebuttal and since it is connected I will address it first. On the hiring issue, my sense is that most law professors have some practice experience. There is no question that practice experience is valued differently at different schools and it is probably the case that in most schools a very long period of time in practice may raise some concerns about whether someone can successfully transition to an academic position and be willing to, as it were, start at the bottom again as a junior member of a new profession (academic) after getting used to the prestige and authority of being a senior member of the profession of practicing law.
But Jeff Lipshaw has words of wisdom for that transition (see his great article Memo to Lawyers ); and he and countless others have proven that it can be done. So the idea that practice experience is not valued is not true at the level of gross generality in which it is often repeated. – the cararicature of a professor who has no idea what it is like to practice law. It is simply not true in my experience.
Now admittedly, “my experience” is not a scientific study; but I have been a student, faculty member, visitor or fellow at a wide range of schools: University of Miami, Harvard Law School, Stanford Law School, University of Missouri-Columbia and FSU, in addition to my permanent position at University of Tulsa. And in all those places most (even if not all) of the faculty had some experience practicing law, often at a very high level.
But here’s the rub. Even if you have practice experience, at some point that experience will become stale. That is, your practice experience from 10 or 15 or 20 years ago undoubtedly continues to have relevance for your teaching and scholarship; but some of it is going to reflect a different world than the one your students enter. When I was in practice we still routinely dictated memos and pleadings. I don’t know if that is common now. The internet, email and electronic discovery/filing barely existed, even though word processing and computers did. Court reporters took most depositions and video depositions were the exception not the rule. Social media didn’t exist at all. Does that mean my practice experience is irrelevant? I hope not.
But even if all law schools suddenly made practice experience the sine qua non of hiring, that experience would soon become stale with the passage of time unless we continue to practice (and some do). Whether you think this is a bad thing may depend on what you skills and knowledge you think practice experience brings to teaching and scholarship. It could well be that the bits that degrade over time aren’t so critical to what you have to offer to students from your practice experience and so it doesn’t matter that it wasn’t very much or that at some point it will become stale.
Either way, given that it will inevitably grow stale, it is easy to understand why schools wouldn’t make practice experience the be all and end all of hiring. What they do clearly value is scholarship. Written work is one of the few things that it is possible to assess ex ante as opposed to ex post. (It is hard to assess in advance what sort of teacher someone will be.) We want professors to be productive scholars. Productivity is often a product of intellectual curiosity and enthusiasm. And that intellecutal curiority and enthusiasm often contributes to good teaching as well. So there is nothing particularly illegitimate that law professors, like professors in other fields, explore what is of interest to them without first considering whether it will be of interest to others, or more grandly, to the practice or even the world as a whole.
