Wednesday, December 01, 2021

Some Pet Peeves About Legal Scholarship

Mark Tushnet

Part of an occasional series:


(1) Articles entitled “[Toward] a [General] Theory of X,” where “X” is some reasonably broad topic: So, “A General Theory of Administrative Law” and maybe “A General Theory of the FDA,” but probably not “A General Theory of the FDA’s Emergency Use Authorization Practice.” Why? Because though it might take a theory to beat a theory (I actually don’t think it does – some theories are junk on their own terms), facts almost always defeat general theories (in the domain of law). General theories might point you towards some things to look for in examining some subfield of X, and a theory of X might give you some ideas about how to think about Y. No law journal editor is going to take seriously an article that begins (after an appropriate anecdote), “Here are some ideas about interesting aspects of administrative law that this anecdote brings to mind.” (Tom Emerson on the First Amendment is an exception, but actually his article is indeed about some things you have to think about in coming up with a sensible set of First Amendment doctrines.)


(2) “This article is the first to show/argue/demonstrate Z.” (a) With a probability approaching 1, no it isn’t. Your preemption search almost certainly overlooked something, perhaps embedded in a source whose title wasn’t captured in your search, or perhaps stating the core idea in terms different enough from yours that you didn’t come up with a preemption search request that turned it up. (b) Ecclesiastes had it right in the run up to “There is nothing new under the sun”: A generation goes and a generation comes, but the earth remains forever.” (c) And, on the off-chance that you are indeed the first to show Z, maybe the reason is that Z is a terrible idea or at least a not-very-interesting one. (d) But pretty much everybody knows (a)-(c), so the self-promotion is transparent and pointless. (OTOH, maybe not “everybody”: The generation that comes – the annual turnover of law review editors – might not know it. On yet another hand, maybe use the claim to sell the article, then take it out in the editing process.)


(3) Crappy interdisciplinarity. My current hobby horse is serious philosophy, where law-based authors (sometimes even with Ph.Ds) bandy about fancy names, pluck a convenient-seeming idea out of a complex argument, and use the named philosopher’s authority to move an argument forward. (There’s a reason that serious philosophers typically read their papers rather than “talk” from outlines; they have chosen their words carefully to make sure that the argument really does – in their view – hang together.) I’ve adopted a defeasible presumption that any law review article purporting to rely on Grice as support for some argument or conclusion, is probably mistaken in doing so. In other work I’ve referred to a practice I describe as “philosophy indexed to law,” a discipline different from “academic philosophy.” And I’ve argued that the practice of philosophy-indexed-to-law might actually make some contribution to legal knowledge, but not because of the authority of academic philosophy.


The other area of interdisciplinarity I’m interested in is of course history. And there originalists are (now) at least honest in saying that they aren’t doing history as historians understand the practice, they are doing history-indexed-to-law. That means, they properly say, that they aren’t obligated to comply with at least some of the norms of academic history, though exactly which ones isn’t entirely clear. Sometimes they seem to want to say, “Historians look well beyond legal materials to understand the context in which law-related arguments were being made, but we confine our contextual inquiries to things in the near neighborhood of law” (though I don’t know of a decent account of why ignoring the farther reaches doesn’t lead to a loss of some relevant information about context – my own view is that it’s just laziness). And, unfortunately, at least some originalists seem to think that history-indexed-to-law is a practice that allows them to breach the norm in academic history against making stuff up.


I’ve already hinted at one source of these (to my mind) pathologies: The incentives generated by the combination of (a) publication controlled by law students, (b) the rise of the practice of “the tenure article,” which according to current norms has to be ambitious (giving rise to problem (1)) and novel (giving rise to problem (2)), and (c) increasing free-agency among law professors, inducing some to try to write their way up the law school hierarchical ladder.


For my work on the Hughes Court I read a bunch of early articles by people who turned out to become major scholars (so there’s a problem of selecting on the dependent variable here), and I don’t recall any that had the characteristics I associate with hot-shot legal scholarship today. Make of that what you will.

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