The Practice and Discourse of Legal Scholarship

Abstract

This Article is an attempt to evaluate the enterprise of legal scholarship. It might appear that an enormous amount has been written about the subject in recent years, but the majority of the discussions actually focus on the law itself, on legal theory, or on the validity of new approaches, such as law and economics, law and literature, and critical legal studies. The concern here is the remainder-that great mass of work that discusses contemporary legal issues in a manner that is difficult to describe but easy to recognize. 1 It can be referred to, without any implicit condemnation, as standard legal scholarship. These are not cheerful times for standard legal scholarship. In fact, the field is widely perceived as being in a state of disarray. It seems to lack a unified purpose, a coherent methodology, a sense of forward motion, and a secure link to its past traditions. It is bedeviled by a gnawing sense that it should adopt the methods of other disciplines but it is uncertain how the process is to be accomplished. The field even lacks a conceptual framework within which to criticize itself. One reasonable way to develop such a framework is to rely upon the same approach that has been used to reevaluate other forms of scholarship. In fact, the reevaluation of scholarship has been a central theme in twentieth-century thought. Its most consistent development is to be found in continental philosophy: the phenomenology of Husserl, 2 Schutz, 3 and Merleau-Ponty, 4 the linguistic analysis of the

What’s in a Game? Legal Positivism as ‘Still Descriptive and Morally Neutral’

“…Legal scholars therefore 'employ the same legal terms, and treat them with comparable levels of respect or disdain. This shared conceptual framework between legal scholars and their subject matter may be referred to as the unity of discourse' (Rubin 1988(Rubin , p. 1859(Rubin -1860. Importantly, and this is the third point, the game of chess consists in a system of rules and is therefore completely normative in nature.…”

Legal Scholarship as a Source of Law

“…In the US at least, where literature about legal scholarship is particularly rich, there is significant agreement about the broad characteristics of the sort of legal scholarship that counts as "standard" (see, e.g., Dan-Cohen 1992;Friedman 1998;Gordon 1993;Posner 2002;Rakoff 2002;Rhode 2002;Rubin 1988;Rubin 1992;Saks et al 1996;Schauer 1991;Schlag 1992;Tushnet 1987 So what is standard legal scholarship? It is identified by reference to three related characteristics: (1) it is prescriptive; (2) it is directed not only at other scholars but also at legal officials and practitioners; and (3) it employs a discourse that is typical of the legal professionals who form part of its audience.…”

Cautions on the Use of Economics Experiments in Law

“…In fact, much is unsettled. Rather than providing an objective assessment of the economics landscape, however, legal scholars sometimes report only those results that support their forwarded policy positions, which are often chosen not based on an objective assessment of potential consequences but rather to forward a particular set of values or predetermined policy objectives (e.g., 11 See e.g., RUBIN [1988RUBIN [ , p. 1847] ("When viewed as an academic discourse, the most distinctive feature of standard legal scholarship is its prescriptive voice, its consciously declared desire to improve the performance of legal decision-makers. "); SCHLAG [1991, p. 807] ("The rhetorical script of normative legal thought is already written, the social scene is already set and play after play, article after article, year after year, normative legal thought requires you to choose: 'What should we do?…”