The aim of this brief essay is to explore several of the dominant forms of scholarship in the university and in law schools. This is done by examining what are described as five sometimes incompatible ideals, those of development and pursuit of original knowledge for its own sake, preservation, refinement and transmission of the best forms of knowledge, objective social critique, individual activism and collective activism.
Tenure track positions in American universities and in law schools particularly are comfortable sinecures. In far too many instances these privileged and lifetime positions serve mainly the personal interests and agendas of the purported scholar and teacher who often produce what could be called “fugitive rubbish” in their intellectual work, or that possess the characteristics of largely technical reportage while proclaiming elevated intellectual merit. Beyond those issues the situation has become considerably worse with the rise of an incredible array of special interest journals, many of which allow “scholars” to publish their analysis in journals whose editors share political agendas with the authors and whose pages are open only to analyses that fit the specific aims. A result is that perhaps a majority of American legal scholars are essentially “preaching to the choir” with little readership outside the ranks of the already converted and scant impact outside academia.
An American legal scholar’s reputation is too often generated not by the intellectual power of the work but by the name of the law school at which one is a faculty member and the choices made by third-year student law review editors. Of course there remain journals that accept scholarship of deep consequence but one is hard pressed to identify on a consistent basis what those enlightened journals are. This is a particular problem in American legal scholarship where the most prestigious journals (but not automatically the best) are law reviews run by law students who by definition are generally highly intelligent but lack the depth of knowledge, expertise and context of the kind required to evaluate the intellectual quality and significance of the pieces they select for publication.
A result is that the published writings of members of American law school faculties run a gamut in terms of quality, meaning and intellectual depth. Much of what is published is “useful” to a restricted group interested in the specific technical topic, or to members of a political “identity collective”. A fair amount of the scholarship can be seen as philosophical in that it attempts to join the principles contained (or claimed to be found in) the US Constitution or in the jurisprudential principles on which the Western Rule of Law is grounded. Constitutional and jurisprudential analyses are in fact the closest sub-discipline where American legal scholarship seeks to formulate a philosophy and critique of government, power, rights and duties. Much of legal scholarship, however, is little more than technical explanation of a doctrine, rule or statute of the kind that might be better done by practitioners, or political polemic based on assumed facts and values held by activist scholars.
One challenge is sorting true scholarship from mediocrity and rubbish is that virtually anything a faculty member writes can find a home in print somewhere. The proliferation of narrow special interest journals has exacerbated the situation. The problem is that writing is not the same as scholarship. Yet it has increasingly become the case that since we lack the criteria, courage or political will to carefully evaluate and critique what is put forward as legitimate scholarship a great deal of what makes its way into print is of questionable merit when assessed against any traditional standards. This is so embedded in the academic system’s terms of operation at this point that it is unlikely to change. A result is that we will increasingly produce vast volumes of verbiage of limited merit and consequence outside the narrow limits of our personal and group agendas.
David Barnhizer. "The Illusion of Creative Scholarship in American Universities and Law Schools" (2010)
Available at: http://works.bepress.com/david_barnhizer/11/