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January 11, 2008

Relevance, Audience, and Legal Scholarship


RatWithin the legal academy, there seem to be two competing impulses regarding scholarship.  On the one hand, scholarship has become more important as a marker of personal and institutional status, and law professors now have to produce scholarship to succeed.  On the other hand, the scholarship produced is often condemned as being too long, too derivative, and too irrelevant to the practice of law.   To my mind, both impulses reflect a truth.  The tension between these impulses may lessen if we start focusing more often on the audience for our scholarship.

Most decent scholarship argues for a change of some type—a change in a law or rule, a change in the way we conceive of an issue, or a change in the actions people take.  Unfortunately, this scholarship is rarely conveyed to those who can make that change.  Articles about legislation aren’t read by legislators; articles about administrative policy aren’t read by administrators, and articles about societal change don’t make it to those able to implement such changes, such as foundations or governments.  Instead, we publish these things for one another.   When we mail out reprints, we professors may just mail them to other professors, instead of to our proper audience, those who can make a change.

Too often, what we lack is an institutionalized nexus to decision-makers.   In this regard, we have a role model in Washington think tanks, which specialize in connecting ideas to power.  It could be that we have too many conferences with one another, and not enough with legislators and others with the power to make the changes we seek.   If scholarship is to mean something in the sense of a lawyerly and scholarly discussion, we cannot exclude those outside the academy who design the machines we critique.

-- Mark Osler

January 11, 2008 | Permalink


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"Too often, what we lack is an institutionalized nexus to decision-makers." Is this the core problem, or it that law review articles, while sometimes professing to aim at reform, are ultimately indifferent to it because the final arbiter of the article's "success" is other professors, not decisionmakers? How highly is being an effective change agent weighted when it comes to, for example, considering a professor for tenure or hire?

Besides lacking a nexus to decision-makers, I suspect many professors also lack a working notion of change itself. (This was suggested by Prof. Minow at AALS). We can't even imagine changing our own law schools, never mind Congress!

By way of a small example of what you're talking about, tomorrow at the Berkman Center we are hosting Prof. Danielle Citron of the U-Md Law School on her article about "Technological Due Process" (how we should hold software accountable when it executes government policy). To organize the lunch I've invited legal advocates and government attorneys in the hopes that we can spark a conversation leading to real change, starting perhaps with a white paper on best practices. The thing is that while this strikes me as incredibly important work, the practical aspect just doesn't seem appealing to journals and other traditional venues of publication, which consider the practical aspects too... practical, I guess. (?)

There is, btw, at least one other audience (and subject matter) we should consider, which is the practice of law itself. I am excited about the efforts to study the legal profession itself in a serious and empirical way.

Posted by: Gene Koo | Jan 14, 2008 4:16:30 PM

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