Wednesday, May 23, 2007
Mr. Doctrinalism says: "Reports of My Death Are Greatly Exaggerated"
Like Larry Tribe, I was fascinated by Einer Elhauge's recent posting on the "death of doctrinalism." Einer defines doctrinalism as "the sort of scholarship that simply describes doctrine or that assesses doctrine based solely on formalistic grounds having to do with the logic of it internal structure." However, "scholarship that considers doctrine or takes it seriously" is not doctrinalism for that reason alone. Indeed, "[i]t would not . . . be doctrinalism to analyze the functional theories that could explain some doctrine or lead to reform of it, or to measure the consequences of doctrine. Heck, that is what I do, and I am not about to declare myself obsolete."
It would be quite helpful if you, Prof. Balkin, or Prof. Tribe, or Prof Einer, (or anyone else who teaches law) could: a) give examples (whether from actual an article or not) of "narrow doctrinalism" as defined by Einer; b) give an explanation (and examples) of what you have in mind by a "functional analysis" (including, if possible, citations to any articles), and c) why you all believe that legal scholarship was ever NOT interdisciplinary?
Is this death the same thing that Judge Harry Edwards was lamenting in his piece: The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992)?
Edwards claims that academics are no longer pursuing practical scholarship that is meant to make things easier for judges and legislators (which seems to be the project of clarifying current doctrine). He criticizes as "legal nihilism", impractical work that treats doctrine and law as vague or indeterminate. Edwards also laments growing emphasis on interdisciplinarity in the legal academy as diluting the academy's ability to teach student's how to understand and engage current doctrine. A highpoint of the article is that Edwards calls out two of this forum's contributors: Sandy Levinson and Mark Tushnet as possible nihilists.
I was struck by a different bit of Elhauge's post: "So how can one overcome this entry barrier? One way is to get both a JD and a PhD." He points out that most of Harvard's recent entry-level hires have both, and that appears to be true at other top law schools as well. But I'm struck by what an unbelievably expensive credentialing process that is, both in dollars and in years of education. Doesn't this process exclude everyone who can't afford to stay in school (and out of the labor market) for seven or eight years past college?
Perhaps this could be compared to the movement in the English literature field from pure philology to a variety of burgeoning theoretical, analytical lenses: new criticism, reader response, Marxism, feminism, structuralism, and deconstructionism, to name a few. Surely there are fewer jobs now for an English professor whose sole understanding of a text is through the historical origin of the words themselves. However, in English, there is little if any practical job for a PhD other than scholar. The legal field, however, is not so self-referential, as most graduates are actually required to go out into the real world and use the law. I think the more pressing question in this debate is whether interdisciplinary scholars should be teaching doctrine to future practitioners.Post a Comment