Legal Commentary

Erwin Chemerinsky has written a foreword to the Michigan Law Review's annual books issue.  It's classic Chemerinsky: humble, courteous to other voices in the debate, and written with grace.  The title identifies the topic: -- Why Write?  It's not exactly a new topic for law professors, at least those who have earned tenure.  It's been blogged about here, too.  But when someone like Chemerinsky considers it it's worth considering again.

Early on in his discussion he notes that he agrees with Harry Edwards, the D.C. Circuit judge who some years ago criticized the legal academy for focusing too much on theoretical scholarship at the expense of scholarship written for other audiences, especially (in Edwards' critique) judges.  Chemerinsky doesn't criticize theoretical or interdisciplinary work; he just thinks faculties undervalue other types of scholarship.  For what it's worth I agree, though I hasten to add it's just a subjective impression.  I also suspect there's no consensus on where the line is between theoretical and "practical" scholarship.

More interesting is Chemerinsky's analysis of what should count as tenure-worthy scholarship, and how he ties it into the "why write" question.  He ends up focusing largely on originality.  As long as something is original, he implies, its format -- article, treatise, casebook, even brief -- shouldn't matter.  This is a welcome statement, especially from a dean of a law school, though frankly I suspect most deans would at least claim that even a casebook would count toward tenure if it was sufficiently original.  As Chemerinsky reminds us, wonderful scholarship such as Hart & Wechsler's federal courts book has taken the form of casebooks.  But given Chemerinksy's own history of casebook, treatise and brief writing (not to mention his characteristic candor and good faith), there's reason to believe he means what he says.

As for the criterion itself: Originality is pretty intuitive as a criterion for scholarship.  But as I said, what's interesting is how it ties into his ultimate explanation for why scholars write.  Part of that explanation is the contribution original scholarship makes to the knowledge base.  Sure, it sounds presumptuous to think our work makes a difference.  But I think most of us do write with the hope that someone will listen and maybe use our original idea as a component of a bigger idea that will have some real world effect. 

So far, so good. Where I think about getting off the bus is at Chemerinsky's last argument.  Contributing to the larger debate, he says, "seems too instrumental and too incomplete" a justification for scholarship.  Instead, "a fundamental reason" we write is self-expression.  I don't doubt that he's right about that. I get a great deal of personal satisfaction from scholarship I do that I consider well done, and for me, as I suspect for most of us, "well done" scholarship has something original to say.  But I do wonder about our self-expression getting subsidized by tuition-paying law students.  Subsidizing scholarship done in the name of advancing some larger body of knowledge or public good is one thing; subsidizing our self-actualization seems a different matter.  Would I have a right to expect my law school to subsidize (by considering it an appropriate use of my non-teaching work time) work I do writing a novel?  Reading one?  Climbing a mountain?  Doing stand-up comedy (other than class)?

In a sense this is a trivial argument: given that I accept the "contribution to knowledge or the public debate" justification for scholarship, maybe any self-actualization I enjoy is just a collateral benefit that comes along with the broader contribution that (speaking optimistically) my scholarship may make. But still, if a student asked me why I wrote, and I said that it wasn't to change the world, or in order to learn the material better to assist in my teaching, but just because it made me feel good, I wonder how the student would respond. 

Of course, there may be other side-benefits to students from their professors doing scholarship: presumably the professor will know more and thus teach better, or maybe the school's rankings will go up and that will redound to the students' benefit.  Is it a proper answer to the student that I do my scholarship for my own reasons, but that she shouldn't worry about it because it benefits her, regardless of those reasons?