Legal dons in the dock

Against the Law
March 27, 1998

American law professors sometimes seem dreadfully insecure and self-obsessed. The worst afflicted, furthermore, often have the best jobs. In the 1930s, legal realists such as Thurman Arnold and Fred Rodell railed against what they saw to be the conventions of legal education and scholarship; in the 1970s, Duncan Kennedy lamented the failures of the law school; Anthony Kromnan recently suggested that the modern law faculty has contributed to the erosion of the lawyer-statesman ideal; and Roberto Unger has bemoaned the poverty of academic-legal imagination. All of these people are from Harvard and Yale. If they express unhappiness with law schools, what are the feelings of those at less elevated institutions?

The authors of Against the Law hail from the University of Colorado law school. Their book is made up of essays, written by each author, which have appeared in American law reviews. It also contains a running commentary on itself in the form of a three-part interview with the authors. This interview, although rather arch and self-indulgent, makes the book worthwhile. For it captures the way in which many American law professors will just, well, talk - and continue to talk even when they risk looking foolish. Consider, from the interview, this delightful slice of imagery: "Doctrinalism is like hot fudge - it's fine in its own place, and it has its uses, but we've got way too much of it and it's way too complicated, and I think that many lawyers are beginning to get a feeling that this stuff isn't working because there's too much of it, it's too complex, nobody can understand it, it's too expensive to deploy, and it's really kind of distasteful on all sorts of levels."

Anyone who has delivered papers at American law schools is likely to have heard plenty of people talking like this. While easy to mock, such talk is worth taking seriously if it offers insights into those who speak.

Perhaps such talk betrays insecurity. American law professors often seem worried that law is not intellectualised, and so they try to bring academic respectability to what they do by linking their endeavours to developments in other disciplines. Some also talk as if they were participants in other disciplines. One consequence of this quest for interdisciplinarity is a peculiar devotion to rigour - not in the sense of being precise, but in the sense of leaving nothing unarticulated. If you have a thought, do not censor yourself. You want to write 50,000 words and call it an article? No problem. American law reviews rarely discourage verbosity. If people never speak, they are dull; and so it follows that the more you speak, the less dull you will be. Correct?

The authors of Against the Law doubt this logic. Applauding them on this point would be easier if they distanced themselves more convincingly from that which they condemn. Their essays, however, are typical American law review essays. They bemoan the marginalisation of academics who have been critical of law; yet the very notion of marginalisation seems strange here, for so-called marginal scholars often work in prestigious law schools and publish in the best law reviews - the reviews, indeed, from which some of these chapters have been taken. Notwithstanding the title of their book, the authors have a problem not with law, but with law as presented by law professors. Yet they are themselves law professors, writing about the law that gets taught in the classroom and discussed in the law reviews. So what are they against? Themselves?

Paul Campos, Pierre Schlag and Steven Smith are against conventional legal scholarship. Such scholarship is, they believe, moribund. Each diagnoses the problem differently: Campos takes issue with fundamentalism in constitutional jurisprudence; Schlag expresses disillusionment with normativity in legal scholarship; Smith attacks the apparent nonsensicality of natural rights discourse - but, in essence, they share a belief that American law professors are committed to an enterprise which is hardly deserving of faith.

This belief is represented most boldly here by Schlag's critique of normative legal scholarship. Stripped of its nuances, Schlag's thesis runs thus: American legal scholarship is all dressed up in the garb of normativity, but with nowhere to go. Literally hundreds of law review articles appear each year telling judges, legislators and other legal professionals what it is that they ought to do in order better to go about their business. Yet the audience hardly ever listens. What, then, is the point of the exercise? American law professors, Schlag argues, seem to be engaging in "wishful thinking". They want to believe that their recommendations have some effect in the legal world, even though there is little evidence that this is the case. And so there is often a rather desperate, demoralised quality to legal scholarship. Wishing to connect with the wider legal world, academic lawyers endeavour to suggest improvements to the legal system. When their suggestions are ignored, they turn to one another for self-legitimation. They ignore the fact that law is really power, that lawyers hassle, harass and serve as hired guns. And they produce a type of law-speak which hardly ever connects with law as practised.

Schlag's thesis would not seem so bleak were it hyperbole. However, the legal profession rarely appears to take much notice of what gets written in law reviews. And so it is easy to see why he sees little point to normative legal scholarship. But then, what is one to do instead? Schlag's answer to this question seems vague. "For those with the inclination and the capacity," he claims, "there are a tremendous number of questions to answer, questions that ... no one has yet dared to ask." Elsewhere, he states that academic lawyers ought to be trying to "destabilise normative legal thought." But what questions ought we to be asking? And to what end might we wish to destabilise normativity?

Of course, these questions have normative implications. Schlag might say that they are not the questions to ask. Yet normativity, while it may be otiose, appeals to academic lawyers for understandable reasons. Asked what he would put in the place of normative legal scholarship, Schlag replies:

"I just cut down some parasites on my ponderosa pines. And if somebody were to ask me, 'What are you going to put in its place?' I'd say, 'Nothing. Haven't I done enough?'" The comparison of law with an infested garden tree is not convincing. People depend upon legal systems and want to be happy with the way that they operate. Academic lawyers produce normative legal scholarship because they appreciate that citizens depend upon law, and they recognise that if law is to serve people better it often requires not simply the removal of defects but their replacement with something else. This is not to detract from Schlag's important observation about the redundancy of much legal scholarship. But it is to claim that the reasons for the endurance of such scholarship are rather stronger than he suggests.

Neil Duxbury is professor of law, University of Manchester.

Against the Law

Author - Paul F. Campos, Pierre Schlag and Steven D. Smith
ISBN - 0 8223 1841 5
Publisher - Duke University Press
Price - £16.95
Pages - 286

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