Scholarship Advice

April 5th, 2016 / By Deborah J. Merritt

My talented colleague Chris Walker is blogging this month at PrawfsBlawg with a series of posts about how junior scholars can maximize the impact of their scholarship. As Chris explains in his initial post, he hopes to crowdsource answers to questions that junior scholars frequently ask.

I hope Chris’s discussion will attract both junior scholars and more senior ones. A lot has changed in the world of legal scholarship over the last thirty-five years:

• Junior professors begin their tenure-track work with more substantial scholarly experience.
• Technology and reduced teaching loads allow tenure-track faculty to produce more scholarship–which, in turn, raises expectations for that production.
• Law reviews, conferences, and online forums have multiplied, making scholarship more interactive.
• Interdisciplinary work has increased and become more sophisticated.
• Concerns about insularity have revived interest (at least among some faculty) in scholarship that directly addresses student or practitioner needs.

Given these changes, how do we choose to use the time given us for scholarship? The opportunity to engage in unfettered scholarship is a great privilege–one that we should execute in the public interest. That doesn’t mean that the public should dictate our scholarship; great discoveries sometimes come from meandering, seemingly “irrelevant” explorations. But we, the scholars, should regularly reflect on the ways we use our privilege.

I’m glad that Chris has opened this discussion among junior scholars, but reflection is even more essential for senior scholars. We, after all, set the expectations that our junior colleagues must meet. Here are the seven ways I would like to reshape our scholarly sphere:

(1)  Give back some of the time we now devote to scholarship. We could use that resource to reduce tuition, expand experiential education, offer more feedback to students, or equalize faculty status (see point #7 below). I strongly support excellent scholarship, but know that we can preserve quality (if not quantity) with fewer resources. The scholars of the 1950’s, 60’s, 70’s, and 80’s did it; so can we.

(2) Reduce the number of scholarly presentations that require travel. Workshops and conferences are terrific ways to promote scholarly exchange, but we have more than is prudent. These sessions are expensive for schools to host, and frequent faculty travel disrupts class schedules. And let’s not forget the major effect that air travel has on global warming. We could cut scholarly travel modestly, replacing some of it with online interactions. We could prune, moreover, in a way that preserves junior and diverse voices.

(3) Encourage both shorter and online forms of scholarship. A short published response to a theoretical piece can promote significant intellectual advancement. Put that essay online and it may stimulate even more discussion. Create an online conference and it will foster both synchronous and asynchronous commentary. These scholarly modes have already emerged but, as Chris’s discussion suggests, junior scholars are unsure of their value. Faculty leaders should make clear that these new scholarly venues make significant contributions.

(4) Balance our scholarly modes. Although I like new forms of scholarship, the traditional law review article and academic book still serve key roles. There are times when a scholar needs to develop an idea fully in an article or book. As faculty leaders, we should promote newer types of scholarship in combination with more traditional outlets. Most scholars will do some of each over an academic career; others will gravitate to a particular mode. We can find balance both individually and as a faculty.

(5) Promote scholarship that helps practitioners and clients. These groups draw value from many types of scholarship. I have discussed my federalism theories with legislators, government lawyers, and judges. Community members have responded enthusiastically to essays critiquing the legal system. We shouldn’t assume that practicing lawyers and their clients are too plebian to appreciate theory.

But at the same time, we should not denounce other types of scholarship as too “descriptive” or “doctrinal.” It’s hard to describe legal principles clearly, and legal doctrines are complex. As a result, practitioners and clients benefit from ongoing insights about legal developments. Faculty already recognize the complexity of legal doctrine in their teaching; that same complexity justifies thoughtful, well organized scholarship that guides practitioners and clients through legal thickets.

(6) Value teaching materials as scholarship. Like my plug for professionally relevant scholarship, this point is both old and new. Hart and Wechsler’s revolutionary casebook on The Federal Courts and the Federal System profoundly affected both scholarship and teaching when it first appeared; it undoubtedly continues to do so under its contemporary authors. Creating thoughtful materials for students has always provoked scholarly reflection. Today, as brain science deepens our understanding of pedagogy, there is even more scope for teaching materials that incorporate and further scholarship.

(7) Abolish our faculty caste system. Today’s legal scholarship rests on an uneasy–and deeply unfair–caste system. Tenured professors at many law schools enjoy job security, high pay, light course loads, and extensive research support (summer grants, travel funds, research assistants, computers). These professors rarely teach the time-intensive courses that students, employers, and regulators recognize are essential to professional education. Instead, we rely upon a cadre of professors who are much lower paid, lack full job security, and enjoy little research support to teach those courses. Many of those professors want to do research; indeed, many have produced scholarship without the summer grants or lightened teaching loads that tenured faculty claim are indispensable.

If we want to nourish scholarship in good faith, we need to end this unfairness. Do we believe that scholarship is compatible with teaching–that it, in fact, enhances teaching? Then we need to make that synergy possible for all professors and subjects.

Do we really believe that teaching is as valuable as research? Then we need to pay those who teach intensively as much as we pay those who focus more of their time on scholarship. Legal writing and clinical faculty devote extensive hours to teaching–while earning as little as one third of the salaries paid to senior professors on the tenure track. Is scholarship really worth so much more than teaching? Why don’t we equate the two in dollars as well as rhetoric? [I add, as a realist, that this means we need to pay people like me less, while paying others more. There are limits to the size of this pie.]