Susan Crawford has posted a helpful summary of a panel at last weekend’s American Association of Law Schools (AALS) Annual Meeting on “Implementing Scholarship.” Deborah Rhode (Stanford) and Harold Hongju Koh (Dean at Yale) both responded to a NYT column last Spring by Adam Liptak. Liptak’s column reiterated the proposition that there is a problematic disconnect between what interests law professors and what interests judges, policymakers, reporters, and law students. In response, Dean Koh urged law professors to adopt what Berlin might have called a hedgehog strategy: Adopt and push one big idea. Professor Rhode noted that the incentive structures of both journalists and academics are simply at odds with each other.
At a different panel, “The Future of Legal Scholarship,” sponsored by the Section on Scholarship, I was most interested in the comments of Saul Levmore, Dean at the University of Chicago, in part because they addressed the “Implementing Scholarship” theme: Why (and whither) the disconnect? There’s no way for me to do justice to Dean Levmore’s wit or delivery (he is, after all, a teacher who once tested his freshman economics students with the exam question: “Why does a house cost more than a cookie?”). A dry summary will have to do.
Painting with a broad brush, Dean Levmore noted that practitioners and academics in the legal profession have switched sides, so to speak.
Back in the day, practitioners were generalists. They were business lawyers, counselors, trial lawyers. They weren’t specialists; they couldn’t afford to be. Law professors, by contrasts, were masters of the specialty. The great professors of the past were, in fact, those who committed their full careers to a single topic, often embodied in a treatise. When a practitioner needed specific help, to the treatise — or sometimes, to the derivative law review article — he (usually he) would turn.
Today, practitioners are specialists. In the era of super-sized law firms, it’s the practitioner who spends a full career dispensing counsel and advice centered on a single section of the Code, or a single deal structure, or a single type of litigation. If you’re a lawyer in a mega-firm and you need the hyper-specialized answer to your question, there’s no need to consult the treatise (or the reviews, or the professor in person). Simply track down the firm specialist in that question. If you don’t work in a mega-firm and therefore don’t have in-house hyper-specialists, then align with firms that do.
If that’s the world of practice today, then it’s no surprise that academic lawyers have become generalists. We’re abstracters, synthesizers, theorists, high-level perspectivists, and the more specialization we see in the practice of law, the more general our academic role will become. Our primary task as scholars and teachers isn’t to tell lawyers (or judges, or reporters, or even students) “what the law is” or even “what the law should be” in some specific sense, but instead to counsel how to think creatively, and perhaps unconventionally, about the issues and problems to come.
It’s entirely possible that my paraphrase hasn’t done justice to Dean Levmore (he had some modestly skeptical things to say about empirical research, for example), but this is essentially what I took away from his talk.
Suppose that he is right, or at least that he is on to something, which I think that he is. What are the implications?
First, of course it’s possible to view the argument as an enormous rationalization of academics’ failure more effectively to contribute to solving policy dilemmas. But I think that there is more to it than that.
Second, the angst expressed in connection with the “Implementing Scholarship” panel (and expressed frequently and publicly by many others, notably Judges Edwards and Posner) may partly be due to the fact that a large number of today’s judges (in particular) and senior practitioners were trained in law schools in the 1960s and early 1970s, that is, when the “older order” described by Dean Levmore was only starting to give way to the beginnings of the “current order.” In 10 or 15 years, will we hear the same lament about disconnects between academic lawyers and practitioners and judges? Are law schools building higher-level thinking into their teaching sufficiently so that the practicing bar “gets” the Levmore allocation of role?
Third, I wonder whether, when, and how this specialization/generalization pendulum might swing back the other way. The legal academy isn’t responsive only to trends in the practitioner community; it also responds to trends in other wings of the academy. And elsewhere in the academy, hyperspecialization is the rage.Â To the extent that law schools and law professors want to be perceived and treated like “real” academics, they mimic behaviors of their other academic colleagues. Specialize, specialize, specialize.
To a degree, the legal academy is at war with itself. (And as Research Dean at my law school, don’t I know this!)