Relevance, Audience, and Legal Scholarship

 

Within 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