Post on Legal Scholarship
posted by Frank Pasquale
Yale announced today that Robert Post will succeed Harold Koh as Dean of its Law School. I am thrilled to hear the news. I read Post’s book Constitutional Domains: Democracy, Management, Community while I was in college, and it helped convince me to go to law school. During my recent visit at Yale, Post struck me as one of the most intellectually interesting and friendly faculty members. Virtually every student I talked to who worked with him described him as an outstanding mentor.
Many of our readers might be interested in Post’s take on legal scholarship.
In the 1992 article Legal Scholarship and the Practice of Law (63 U. Colo. L. Rev. 616), Post discussed the “emergence within the past fifteen years of ['external scholarship,'] a form of legal scholarship that is self-consciously external to the practice of law and that takes its bearings instead from traditional academic pursuits.” Such “external scholarship” resulted in new hiring practices at many law schools, which had a tendency to “hire entry-level professors with no experience in the actual practice of law, but with advanced degrees in nonlegal areas of scholarship.” Post was concerned that “Law schools have no historically established standards to measure achievement in the area of external scholarship.”
Post was responding to a number of movements in the legal academy. He worried that law professors “veer unstably between celebrating the rule of law and deconstructing it in the most advanced postmodern fashion:”
We are ripped apart by divergent currents of Critical Legal Studies, Hermeneutic Theory, clinical education, Doctrinalism, Law and Economics, Feminism, Critical Race Theory, Positivism, Law and Literature, or, most recently, anti-normativism. We are in danger of dissipating our coherence as a professional discipline.
Is there any way to bring unity to the profession? Post adumbrates a way forward in his response to Robert Weisberg’s essay in the same volume of the Colorado Law Review:
[Weisberg's] search lies in the grand tradition of progressive legal scholarship, which throughout most of this century has attempted to meet Brandeis’s 1916 challenge to assemble the “necessary knowledge of economic and social science” for the law “to meet contemporary economic and social demands.” Weisberg’s quest ultimately leads him to conclude that “the hope for . . . criminal law scholarship” must lie in “some combination of ethnography and social theory that is willing to see criminal law as well as crime as observable social data.”
[But b]ecause Weisberg is uncertain what he wants to achieve through criminal law, his writing lacks conviction about how to clarify or improve it. He remains stuck attempting to locate first principles, a scholarly position increasingly familiar to those who follow closely the contents of contemporary legal publications.
Post suggests that the legal academic enterprise requires a “firm sense of the internal purposes and function of the practice of law.” Without it, legal scholars may end up detached from the practice of law.
Along with Balkin and Levinson’s essay on Law and the Humanities, and Balkin’s work on Critical Legal Theory Today, Post’s work provides a very good opportunity for law professors to reflect on the balance between theory and practice, and advocacy and detachment. I am broadly sympathetic with Post’s position on the need for a distinctively legal take on society’s problems. Though the rise of the administrative state has necessitated a great deal of data gathering and external scholarship capable of making sense of it, the ultimate synthesis of various social scientific perspectives into judgment on particular cases and rules is a paradigmatically legal one. We can’t subcontract it out to economists or the “policy sciences,” lest we become “lost lawyers” (in the words of another dean of Yale Law).
June 22, 2009 at 12:50 pm
Posted in: Law and Humanities, Legal Theory, Philosophy of Social Science
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Responses (1)
MHS - June 23, 2009 at 9:56 am
You found that students who worked with Post found him to be an excellent mentor; what did students generally, or students who’d just taken his classes rather than writing a paper for him, think?
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