Legal Commentary

Three years ago, Paul Horwitz started a wonderful discussion about the value of scholarship by law professors, Why I Write.  Those of us who populate the legal blogosphere tend to be writers.  We write articles, essays, symposia pieces, and, our appetites still unsatiated, jump into blogging, op-ed writing, and the like.  The personal and professional benefits of writing are obvious and immediate.  You get bigger raises, get promoted, get invited to speak at conferences, and become part of a national network of scholars in a field that helps assuage some of the loneliness or monasticism of the academic life.  Many of my friends in the law professoriate still express amazement that they get paid to write!  About things they care about!

An equally interesting, and perhaps more troubling question, is why some professors choose not to write.   Even the top law schools -- as presumably will be revealed by Greenbag's pending "Deadwood" rankings -- have professors who have not written a piece of scholarship, legal or otherwise, in years.  I have heard various explanations from some non-writers about why (typically post-tenure) they choose not to write, although none of these seems completely satisfying.  Unlike the folks at GrumpylawMoneylaw, I don't think the answer is that non-writers are thieves who could easily be brought into the scholarly fold by an aggressive dean or post-tenure review.   

In my own experience, those who don't write aren't lazy.  They spend no more time at the golf course or fishing than those who do write.  They take on time-consuming positions in bar associations, serve on university committees I'm thankful to avoid, and teach extra classes and CLEs.  It's not that that they lack ideas -- frequently, they ask some of the most insightful questions at workshops and provide incredible feedback on colleagues' scholarship.  The question I want to explore here is why, even though it seems so obviously harmful to their own personal and professional interests, they choose other activities instead of write legal scholarship.  The point isn't to lay blame or scold those who don't write, but rather to try to understand the roots of non-writing in the hopes of generating ideas of how to provide a chance for change.

1. I have nothing to say that would re-invent my field.  One of the reasons offered by some non-writers has to do, I think, with the burdens of high expectations.  Some professors think that if they can't pull a Posner in their next article, they shouldn't bother.  These folks may have (in the past) written massive "battleship" pieces but sometimes feel that they can't offer anything new and so they don't try.  But legal scholarship has changed.  Although doctrinal work -- in the "here's what the law is" sense -- has largely lost its place in the prestige pecking order, I don't think it's fair to say that only a paper developing a monumental new idea is worth writing.  There are many tiny but fascinating questions in the law that have yet to receive scholarly attention.  And law reviews are seeking shorter pieces these days.  A "think" piece that might not have been publishable two decades ago can now land a "top" placement.  Need an idea?  Any time a student asks you a question in class that you can't answer (even after doing some preliminary research), write it down -- there's probably the nugget of at least an essay. 

2. No one will read it anyway.  True, many articles are never read outside of a tenure review.  But blogs are read.  Write in a more accessible medium and you may be surprised by the attention your work gets.  And even if no one reads it, if you pick questions that are related to your teaching or service, at least you will learn something that you can use to make more of a difference.  Keeping up with your own craft as a writer can also help you be a better adviser of student writing projects -- and heaven knows, students need help with their writing.  If you're engaged in a literature you will have suggestions for students about doctrines worth studying and new articles on their subjects.  And you may be able to give better counsel to alums working on cases in a field who may call upon your (free) expertise every now and then.

3. I object to student-edited law reviews.  One of the commenters to Paul's post -- reportedly a law professor -- indicated that he wrote only for tenure purposes and that he hated the "nasty" "genre" of law review articles.  The animosity some legal academics show towards student-edited law reviews may explain why at least some choose not to write.  But these days, there are peer-reviewed journals and inter-disciplinary journals that will take quality work from law professors.  If you don't need a quick placement and publication for tenure purposes, then craft a great piece and send it to a different kind of journal.  Or start a blog -- about an issue maybe only you think is important -- and write that way.  Or just post it on SSRN and let that be its place of publication.

4. I get more satisfaction out of service and teaching.  This seems the hardest explanation to deal with.  Teaching is satisfying, and at least some kinds of "service" surely are as well.  But scholarship is satisfying too.  A commitment to scholarship doesn't always turn you into a bad teacher (actually, if you write in fields you also teach, it probably makes you a better teacher by giving you "superexpert" knowledge of the subjects of your scholarship).  Nor does writing foreclose university, community or bar service (in fact, writing in a field is one of the best ways to get opportunities for more meaningful service). 

I don't think that this last explanation is really about relative satisfaction.  Instead, there is something about writing that detracts from some professors' happiness, satisfaction, and sense of self worth.  What is it?  Maybe rejection.  Law professors tended to be at the top of their law school class; they tended to have their pick of clerkships and jobs at big firms and government agencies.  They survived the gauntlet of the FRC and ended up as one of the few candidates with a tenure-track job.  They aren't used to, or conditioned for rejection.  But even the most interesting article, when submitted to 50-100 law reviews, will be rejected by 90% of them.  And some of those rejections will be particularly low class.  There will be the rejection that comes 1 hour after an on-line submission to a journal -- hardly enough time to download the piece, let alone read it and judge its merits. There will be the rejection sent out to 100 authors "cc"ing each and letting them know they were rejected.  There will be the journal that never bothers to send a response, one way or the other.

The indignity of this may just be too much to handle.  Service and teaching, by contrast, provide more immediate affirmation of worth -- sitting on a government commission, for instance, a law professor can typically make daily contributions that improve the quality of the commission's product.  Teaching well provides an immediate sense of satisfaction when a student asks an insightful or compelling question.  But if the reason some don't write is because of how they feel they are treated by law reviews, maybe we as teachers and advisers of student law reviews need to do a better job of reminding them that the way they reject authors can have real effects.  We should encourage them to process pieces in the way they would want the products of their own hard labor to be judged, and to treat authors -- even those who submit pieces editors find lame -- with respect.