As noted by Orin below, Marc DeGirolami tries to provide a global answer to that question that often bedevils academics, i.e., who cares? For the reasons that Orin and the commenters suggest, I don’t think DeGirolami’s answer is successful.
On the other hand, law professors like myself who write about legal history have good reason to be frustrated by the “who cares” question. Start with the basic premise that law professors are hired to teach and engage in legal scholarship, and that legal scholarship should be judged by the same sort of standards by which other types of humanities scholarship is judged. Good legal history written by a law professor, in other words, should be basically the same as good legal history written by a history professor.
If a member of a history faculty writes a brilliant analysis of the history of the use of the Magna Charta in American constitutional debate, no one in his department is going to say “who cares?” The analysis will be appreciated as a contribution to the world’s store of knowledge.
But imagine that a young legal historian writes the same brilliant analysis, which he uses as his job market paper. At both his AALS interview and his job talks, he is going to be peppered with various versions of the “who cares” question. His advisors will tell him he needs a “hook” to some modern debate to answer this question. So he’ll add some sort of strained analogy to a modern constitutional controversy to show how the paper is relevant to current legal debate. If the candidate appears to have an ideological edge to him based on his resume, many of the professors judging his candidacy will try to decode the paper for secret meanings (“this paper is obviously a subtle attempt to use the history of the debate over the Magna Charta to undermine the legitimacy of Roe v. Wade!”)
In other words, despite the general trajectories of law school faculties from the trade school model to a more standard academic model, many law professors have not fully assimiliated academic standards in judging scholarship, and instead assume (a) that legal scholarship lacks merit if it doesn’t relate to an ongoing controversy; and (b) that all legal scholars should be, and are, motivated by normative concerns, rather than the pursuit of knowledge.
Indeed, it’s still entirely possible at many law schools to get an academic job by writing what one might call “lawyer’s scholarship”: finding an ideologically congenial position about a current controversy in the law, and arguing backwards from one’s conclusion, as if one were writing a legal brief. In other words, to show you’re a good advocate, but not necessarily a good scholar.
I know that many readers of the VC think that law schools should be organized on the trade school model. That’s a separate debate. But it strikes me that if law schools purport to be organized on an academic model, a proper answer to the “Who Cares” question should be, “this doesn’t directly relate to any current legal controversy, but it’s an important contribution to our knowledge of ....” I hope members of hiring committees attending the “meat market” this weekend keep this in mind. (There’s the “hook”!)
UPDATE: Paul Horwitz has related thoughts.
BRachocki says:
“In other words, to show you’re a good advocate, but not necessarily a good scholar.”
Isn’t this a distillation of the conflict inherent in the practice of law in general? A client hires an attorney not necessarily to seek objective reality (‘the truth, the whole truth, and nothing but the truth’), but to reach a result in favor of the client.
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November 4, 2009, 9:55 amJoseph Slater says:
I don’t get to say this every day, so I will take this opportunity to note that I agree with this D.B. post 100%.
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November 4, 2009, 10:10 amMuskrat says:
There should be room for both scholars and topical analysts in academia. But there’s also the parallel problem that law school courses that focus on historical topics tend to get dismissed as unserious by students, who tend to be fairly career-focused and worry that employers will see (too many of) those courses as negatives on a transcript. (I would have spent my entire 3L year taking them if enough had been offered, but that’s just me.) Maybe there should be (more) cross appointments between Law and History (or Economics) departments. But of course that would undermine the idea of a separate “school” as opposed to a History Department in a School of Social Science or wherever. Can’t have anyone blurring that line...
Of course, I’m one of those “History is part of the Humanities” wackos, so what do I know....
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November 4, 2009, 10:28 amyankee says:
I’m with Joseph Slater on this one.
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November 4, 2009, 10:36 amPaul Horwitz says:
Ditto, Joe. David, I have a long post up on the same subject at Prawfs. One of the categories of legal writers I had up when I wrote about non-normative legal scholarship was legal historians. I will say that it seems clear to me that some legal historians write in the humanities model of history and some write in a more normative and goal-oriented fashion. I am not criticizing that as such, provided that the latter category still meets the criteria for good historical writing.
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November 4, 2009, 10:39 amjiffy says:
Any bias toward practical applicability of legal scholarship should be regarded as a feature, not a bug. After all, the primary purpose of law schools is training students to become practicing lawyers. In this respect, law schools are more closely analogous to medical schools (where practical applicability of research is also considered important) than to history departments.
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November 4, 2009, 10:41 ambyomtov says:
As an outsider, may I suggest that maybe part of the reason this happens is that the entire scholarly apparatus of law schools has “not fully assimilated academic standards in judging scholarship.”
It’s not just professors’ attitudes. It’s the entire process by which papers find their way to publication. Your hypothetical brilliant paper is much less likely to be read than a similar paper by a historian. Indeed, and I’m guessing here, the final version is much less likely to be brilliant, because the vetting process, at every stage, is vastly softer. That devalues the result, and means, fair or not, that it will not contribute as much to the school’s status as the same paper written by a historian.
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November 4, 2009, 10:42 amPaul Horwitz says:
Jiffy, with respect, I think analogies only take you so far on this one. Law schools are both like medical schools and like humanities departments. That is true both with respect to the educations they provide and the work done by their scholars. As it turns out, you have little to worry about on an empirical level, since most legal scholarship does indeed have an orientation toward law reform. I’m not sure it should, but that doesn’t alter the fact that it does. But even if one accepts that it should, surely there is room for work that has no immediate practical payoff (but may in the future), like legal history or legal theory, alongside the more practically oriented work, just as there is room for “pure” research, whose payoffs are uncertain, in medical and scientific research. The tent ought to be at least that big — not that I think you’re necessarily suggesting otherwise.
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November 4, 2009, 10:50 amsk says:
Its probably inevitable. Law is more like medicine and engineering than history. No medical student would get kudos (outside of a history department) for writing an historical document about old surgery instruments, and no engineer would get kudos (outside of a history department) for writing about the history of sewer treatment: in both cases, without application to a current problem.
Its the nature of the beast, and law schools that are trying to become more like history departments are probably just misguided (like it or not).
Sk
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November 4, 2009, 10:55 amCJColucci says:
I suspect that part of the problem is that publications standards in law schools are nowhere near as demanding and rigorous as in, say, a history department. You don’t have to publish as much and it doesn’t have to be as good. In how many history departments would the term “tenure piece” even be comprehensible? To add to the fun, much of the rest of the faculty is still at least half-way into the “trade school” model, much of the stuff that looks superficially like academic scholarship in the humanities is second-rate (no knock there, since most stuff in any field is, almost by definition, second-rate), too obviously so, and, depressingly often, much of what looks like scholarship is too obviously put forth in the service of some practical/ideological end. There probably isn’t any institutional solution to this problem as long as law school has, as it probably always will, a trade school component. The only hope is to be really good and really honest. Then you can expect to be left alone.
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November 4, 2009, 10:59 amFloridan says:
One of my sharpest memories from my graduate school years was from a very theoretical course (analogous, I suppose, to a legal history course in law school). At one point a rather frustrated student asked the professor, “How many professionals [in the field] care about this stuff?”
The professor responded, “All the good ones.”
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November 4, 2009, 11:04 amTracy Johnson says:
You should try a historical wargame designer’s research process! I know one who goes over scans of ship’s logs from the Age of Sail, and analyses how much supplies they took in. How many barrels of fresh water, how many pounds of gunpowder, how much hardtack, how much grog. It goes into his ship analysis for each scenario he writes for ship actions. i.e. How prepared a ship was for a combat, based on whether it was running low on supply.
Yep, lawyers got nuthin’ on wargamers.
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November 4, 2009, 11:07 amCarl The EconGuy says:
This discussion might benefit from economists’ discussion of the role of education as both providing human capital (in this case, lawyering skills) and signals about inherent, but unobservable, qualities in job seekers. Indeed, the best future lawyers in top law firms may not at all be those who learned how to do legal research and produce well-written briefs in law school, but could very well be those who evidenced capacities for independent, critical thinking, such as is required for an academic lawyer. Thus, law firms looking to hire future top legal talent may do very well to try to hire top academic talent — whatever specialist training in particular branches of the law or in presenting effective arguments to the bench can be provided as on-the-job training for associates. Hence, I believe the distinction between practical and academic training may be quite irrelevant. Law school students who prove that they have academic promise are investing in a signal that their general skills are so good that they will make excellent practical lawyers in any law firm. Academic training is therefore a possibly excellent sorting mechanism, allowing prospective lawyers to distinguish themselves early on and providing hiring law firms with a good signaling device about inherent talents in candidates.
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November 4, 2009, 11:23 amOrin Kerr says:
On the other hand, I suspect a historian in a history department might not mind the normative questions at the AALS in exchange for an academic career with twice the salary, very low tenure standards, and half the teaching load. ;-)
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November 4, 2009, 11:25 amDavid Bernstein says:
Paul, thanks for pointing out your post, which I hadn’t yet seen. Further evidence that great minds think alike.
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November 4, 2009, 11:58 amNowMDJD says:
In medical schools, research is either clinically directed, “translational.” (laboratory research with clinical applications) or basic science (oriented to understanding how biological systems work). Promotion and tenure dicisions focus on the importance of the problem as well as on the elegance of the work. The main proxy for importance is grant support.
Law is more like medicine than like history, in that the rationale for the schools is to train students for a specific professional function.
There are many differences. One is that change within the field is generated outside the academy (in courts and legislatures, for example).
Law school also differs in that grant support is not essential for financing law schools.
Another difference is that law has differences in approach that cannot be reconciled empirically as opposed to medicine, in which there is general agreement over the ends of the medical enterprise.
It seem reasonable to me that criteria for evaluating legal scholarship should be intermediate between those for evaluating medical scholarship (caricature: how much grant support do you have?) and those for evaluating ‘basc science humanities’ scholarship (caricature: a brilliant book on a 14th century Polish duchy).
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November 4, 2009, 12:01 pmMark Field says:
I find it strange that some people think analyzing historical legal problems should be directly and immediately related to current issues. The legal profession spends a great deal of its time arguing about history, whether in the form of precedent or in the form of constitutional debate (originalism). The fact that a particular issue may not be relevant now overlooks the fact that it may very well be relevant in the future.
There’s another aspect of legal history which I think is important. History involves putting events in context. That’s a valuable skill, and it improves with practice. Being able to put legal issues into context, even if the context is contemporary, leads to a deeper understanding.
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November 4, 2009, 12:02 pmEarly Bird says:
I second Joe Slater. I never thought I’d agree with DB, but never say never, I guess. I’d also like to add that the bias against history extends all the way down the law school ranks. Several of us on law journal last year took a legal history class, the history of American Capitalism. A very interesting, rigorous, and all-around good class. We all wrote notes on historical topics, and the pinhead notes and comments editors rejected them because they didn’t have anything to say about what we should do now.
You see, apparently a note in a law journal is supposed to point out a problem in the law and offer a fix. To someone with a background in history, this isn’t scholarship at all, this is argument, pure and simple. Open up the Journal of American History (which is NOT edited by a bunch of grad students, for cryin’ out loud) and you will not find a single suggestion on how to move forward. You may read about the failure of biracial political coalitions in the Reconstruction South, but you won’t read about what we should do about that now; you may read about the role of missionaries to the Five Civilized Tribes in pre-removal era, but you’ll find nothing on what to do about it today. So when I was told that my paper didn’t offer any suggestions for the future, I kinda snort-laughed. (I realize this didn’t exactly signal a respect for the role of the NCE, but there you go.) The NCE wanted to know what was funny, and I told her that the very idea was ridiculous. Needless to say, I did not get published.
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November 4, 2009, 12:12 pmJosh says:
I think there is another hidden question in the “who cares?” question. Namely, “why should students/government loans/alumni contributions/state taxes if you are employed at a public law school be charged for what you are producing?”
The answer that “legal academic writing is enjoyable” seems completely useless in answering that question. As a law student if I was told “we’re increasing your tuition by $5000 so that we can hire another professor because he would really like to be paid to write legal articles because it is enjoyable” I would be furious.
So “who cares” means “are you earning your keep”
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November 4, 2009, 12:16 pmjb says:
One interesting subject that comes to my mind where there’s an institutional division between theory and practice is that between Business and Economics. The finance taught at business schools has a strong connection to the economics taught in Econ PhD programs, and the latter often gets quite practical, but they have different names and are taught under different approaches at different schools. Law, not pretending to be the study of universal phenomena (as economics is) but instead focusing on the actual laws of a specific country, has not developed such a separation.
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November 4, 2009, 12:25 pmDotar Sojat says:
As one of the editors of my Law Review charged with reviewing the flood of “publication requirement” articles that crossed our desks each year, I can assure that “who cares” was the reaction to most of the subjects covered. Professors crank them out because they are required to do so, while becoming more effective classroom communicators and presenters of the course material is given much too little weight. The most prolific and honored writer on our faculty couldn’t teach his way out of a wet tissue.
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November 4, 2009, 1:05 pmguy in the veal calf office says:
I read academic papers listed linked by the TaxProf blog and notice a couple of things.
First, a given academic paper may provide comprehensive descriptions of a subject matter, explore nuances and consequences (intentional as well as unintentional), and offer a clear and concise read, but that is never enough—the author must always make some proposal (what’s wrong with, “…and that is a sensible approach. Good job, Congress.”). Why do tax professors have to ape legislators and administrators, isn’t it well enough to master the subject matter, its nuances and its consequences?
The second thing I notice from these readings is that tax law professors and practitioners are living in different worlds. Professional publications and memos seek to convey information, but academic tax papers very often seek to convey the author’s command of various modes of interpretation borrowed social sciences and radical derring-do. The academic writing is often bloated, needlessly polysyllabic, and overly referential and yet no more sophisticated or intelligent than many memos I’ve read, let alone professional publications. This is true even though the academic papers tend to cover less ground than professional papers (compare any paper on the current tax-ademic fetish for carried interest or tax strategy patents to a professional article on the Subpart F manufacturing regs).
Its just one man’s opinion, and probably motivated less by this audience than by my own irritation at having my Note not approved for publication until I added the “Hook”.
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November 4, 2009, 1:13 pmCassandra says:
I think nowadays in most cases classifying something as “legal scholarship” means that it is pretty much worthless.
While “legal scholarship” is an amorphous term that cannot really be attacked since nobody can provide a definition. I cannot think of a law review paper cited by the Florida Supreme Court in 20 years. I can’t think of very many recent (last 20 years) papers listed by Westlaw as supplemental sources either.
The whole idea that the vast majority of professor written law review papers are effecting changes in the law is preposterous. Law Professors write law review papers directed at each other, not on important contemporary legal issues actually being litigated. Although there are always exceptions like Volokh in Heller.
As Professor Jones has very clearly demonstrated. Legal Academia has in many places divorced itself so far from the actual field of law, that it serves no purpose whatsoever. It is not used in any court of law, since it cannot withstand the scrutiny of an actual judge in an actual court of law. All it can withstand is fawning of other similarly situated professors.
While some say these sorts of useless articles are “fun” and we would all be blessed and smarter if we read them. I have heard the same thing from encyclopedia salesmen, and I don’t think I’m any stupider for saving my money.
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November 4, 2009, 1:41 pmohwilleke says:
I’m not convinced that doctrinal scholarship has as much of an edge over informed advocacy as suggested in law schools. Certainly, there are prominant advocacy scholars, but there are also plenty of doctrinal scholars and often the doctrinal scholars exploring obscure, historical or ill developed areas of the law are the ones they get noticed and cited, because advocates have nothing else to cite to on those points.
Obscure historical legal research on English common law, for example, has dominated the constitutional debate of enemy combatant policy in relation to habeas corpus law and related Article III jurisdictional questions in the war on terrorism, because these issues don’t come up very often.
Similarly, one of my tax professors made his mark with an analysis of how best to interpret transition provisions in the tax code that was cited by the U.S. Supreme Court not long after it was written. A citation like that looks very good at the AALS Conference, I suspect.
I do agree, however, with the notion that every piece of legal scholarship should answer the question “who cares,” generally in the title and abstract as well as the article itself. If the author can’t explain why his or her scholarship has value, nobody else should be expecte to do so. And, I do agree that law review articles tend to be repetitive, rhetorically flabby and dull, and excessively littered with talking footnotes.
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November 4, 2009, 2:16 pmDuffy Pratt says:
There’s one point I think you are neglecting. In the history department, it would be absurd to ask “Who cares?” Everyone already knows that no-one cares. Simply asking the question does no more than point out that everyone involved is simply irrelevant.
Lawyers (and most professors were at least trained to be lawyers) tend to think in terms of things like ripeness and mootness. Legally trained minds will likely dismiss as moot any paper on legal history that has no connection to any current debate. And I think this only re-enforces David’s point. Law professors are trained to think like lawyers, not like academics. And there are pretty striking differences between the modes of thought.
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November 4, 2009, 4:32 pmTim says:
I think there’s some truth to this.
I also think that law schools would be well served to hire more part time instructors, and reserve the tenure-track positions for a selected few. I think this same model applied to the traditional liberal arts university is a disaster, but I can think of no place more fitting for it than a professional school like law or medical school.
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November 4, 2009, 5:16 pmAk Mike says:
Interesting post and comments. As a lawyer, my view is that legal history written by a law professor is going to be amateur history. Unless the law professor has a degree (an advanced degree) in history, her background of legal training gives no assistance with the craft of historical research, analysis of historical sources, etc. I guess the one advantage is that a legally-trained writer would have better insight into the reasoning of old legal writings.
Then, if the law professor publishes in a law review rather than a history journal, the editing and acceptance process is by students who haven’t even completed legal training and will be entirely devoid of training as historians. This is not a recipe for gaining professional respect.
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November 4, 2009, 7:15 pmJT says:
Josh got it entirely right.
To earn the privilege of a law license, the ABA requires a law degree. These degrees have become increasingly expensive, even as the degree has become worse less to graduates. Students are being forced to subsidize legal scholarship that does not help their careers. Im sure that is a great deal for the Professors engaging in mental masturbation; but not so for the vast majority of grads who will be spending the first few years doing nothing but doc review (if they are lucky...)
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November 4, 2009, 10:25 pmDuffy Pratt says:
There’s nothing necessarily wrong with “amateur” history. Think of Edward Gibbon, Thomas Carlyle, Barbara Tuchman, Bruce Catton, who are just the first few who came to mind. If a law professor could write a history of law as engaging as those amateurs produced, it would probably be worth reading.
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November 4, 2009, 10:40 pmMark Field says:
I don’t find this very persuasive. Students at universities have to “subsidize” scholarship outside their major which won’t help their careers. Students who want to be litigators have to “subsidize” those damn tax professors, which won’t help their careers. Etc.
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November 4, 2009, 11:43 pmJosh says:
Re: Mark Field
There is a difference between saying that “I’m only a litigator and I don’t want to subsidize tax professors” and saying “I’m a law student and I don’t want to subsidize mental masturbation that will never affect anything that ANY lawyer education at this law school does”.
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November 5, 2009, 12:22 amFloridan says:
Josh: “I’m a law student and I don’t want to subsidize mental masturbation that will never affect anything that ANY lawyer education at this law school does.”
I’m not sure law students are the best judge of this (in fact, I’m pretty sure they’re not).
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November 5, 2009, 8:37 amMark Field says:
Floridan is right. Besides, as I’ve already pointed out, “basic science”-type research can pay off in quite a number of ways that are unforseeable at the time. There are lots of examples of that from mathematics, just to pick one area, but even from other areas as well (if you’re a baseball fan, think Bill James). All those scholars who spent years researching the use of military commissions during the Mexican War suddenly found themselves pretty useful recently. Originalists who studied the RKBA? Same thing.
I think it’s perfectly fair to criticize law professors who put research above teaching. I think it’s fair to criticize the existing system of law journals as inadequate to real scholarship. But I don’t think law students ought to decide what research areas a professor chooses.
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November 5, 2009, 10:41 amZvi Rosen says:
As someone who has also written largely in the mode of legal history, I wanted to largely concur with David’s comments(and Paul’s on Prawfs), and add my own.
While the consequences of interdisciplinary social science/law research are often prescriptive, I do think there’s a tendency to say the aforementioned “who cares” to descriptive scholarship which adds context to the law but doesn’t pose normative suggestions. However, this scholarship is often of far greater use both to other academics (who can use it to easily know the history of a moment in the law without needing to research the area thoroughly) and to practicing lawyers (who are often called on to marshall arguments which rely on legal history, the often-denigrated “law office history”). An article by a legal scholar on legal history can often match a more traditional historian’s depth of research, while at the same time offering insight and understanding of the law which non-lawyers writing about legal history sometimes struggle with.
While I like Paul’s formulation of “is it interesting” from a personal perspective, I’d suggest another question in place of “who cares” — “will this help people?” The answer to that question is really what seperates scholarship from trivia.
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November 5, 2009, 4:07 pmRoy says:
This is pretty routine among non-legal academics, about 15 years ago at a major unnamed public university in the Upper Midwest, I was in the graduate seminar on Chinese History and we had two students who had very well thought out projects for eventual dissertations, one on the ideology of fashion in Chinese modernization, and the other on the evolution of land use and property development in the Shanghai suburbs in the 1920s and 30s. The two Professors conducting the seminar continually asked the “who cares” question, and over the course of the two semesters browbeat the two students to change their research to something more “relevant,” pushing the student with the fashion history idea to study labor organization of cotton mill workers, and the other to work on chronology of Porcelain production in Imperial China. Both students eventually left the program, though they were the two most gifted in the class (both had been instructors at major Chinese universities before coming to the US). Sadly, both the topics are today very “Hot” and would have made either of their careers.
Years later and I am now in the hard sciences, and this sort of “hooking” is even more relevant, but at least in this case, other academics don’t deny the interest of the topic, it just declared that no way will you get funding if you don’t show how it will address climate change, or other hot topics, so you get the most tortured applications out of this. One of my favorites is a colleague who successfully got funding for a study of coastal formation in the Permian (~260 mya) by arguing it would address contemporary issues of rising sea levels.
I think this is really just a matter of the narrow mindedness of academia in general
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November 5, 2009, 6:10 pmJT says:
Well, Ive been a lawyer for 5 years now and I learned very little of value in law school. The only things I learned that I use in my job are: (1) how to do research on westlaw (2) how to write a brief (3) practical skills learned through moot court participation. So, out of a total of 90 whatever credits, the only useful classes were 1L ‘lawyering skills’ and the 2 credits I got for MC. That said, I actually liked LS, but it was a waste of time and money. And I bet I could have spent that time and money on something I liked a lot more.
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November 5, 2009, 11:08 pmVladimir says:
David, Joseph Slater captures my sentiments exactly: you nailed this one.
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November 8, 2009, 9:11 pm