Tagged: legal scholarship


On legal education & legal scholarship — More questions for Judge Posner

We should not allow complacency about the American university system to blind us to the weaknesses in legal education.

I am not starry-eyed about the new interdisciplinary legal scholarship. [Even so,] where is it written that all legal scholarship shall be in the service of the legal profession? 

The decline in doctrinal scholarship is relative, not absolute, and perhaps not even relative; all that may be occurring is a shift in the production of doctrinal scholarship toward scholars at law schools of the second and third tier.

Richard Posner (1995)

This is the fifth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, and the fourth one here.  

Richard Posner’s scholarly career in law may have started in 1961-62 when he served on the Harvard Law Review, first as a staff member and then as the President. During that period he published on topics as diverse as a note on the application of international law to outer space (74 HLR 1154), a comment on federal review of state law rulings (74 HLR 1375), a comment patent and antitrust law (75 HLR 602), and a comment on the application of law to religiously owned property (75 HLR). After his clerkship with Justice William Brennan (1962-63 Term) and several jobs with the federal government, he began his professorial career at Stanford Law School in 1969 and thereafter ventured off to the University of Chicago Law School where he is currently a senior lecturer in law. Over the years he has taught antitrust, economic analysis of law, civil procedure, conflict of laws, law and science, evidence, and law and literature.

Screen Shot 2014-12-02 at 2.03.58 PMOne of his articles ranked 64th in the list of the most-cited law review articles of all time. In the field of antitrust law, one his articles (co-authored with William Landes) ranked second in the listings of the most-cited law review articles. (Posner had his own system of rankings.  See here) Even more impressive, as reported by Fred R. Shapiro and Michelle Pears, “[a]s of 2000, Judge Posner was the most often-cited legal scholar of all time with 7,981 citations, nearly 50 percent more than anyone else.”

In the last half-century or so, Posner has published a wide variety of scholarly works in the form of books (40-plus) and articles (300-plus) – perhaps more than any academic writing in the field of American law. In that array of legal literature he has written much on the topic of legal education and legal scholarship. See, for example, the following nine articles by him:

  1. The Present Situation in Legal Scholarship,” 90 Yale Law Journal 1113 (1981)
  2. The Decline of Law as an Autonomous Discipline,” 100 Harvard Law Review 761 (1987)
  3. The Deprofessionalization of Legal Teaching and Scholarship,” 91 Michigan Law Review 1921 (1993)
  4. The Future of the Student-Edited Law Review,” 47 Stanford Law Review 1131 (1994)
  5. William M. Landes & Richard A. Posner, “Heavily Cited Articles in Law,” 71 Chi.-Kent L. Rev. 825 (1996)
  6. Past-Dependency, Pragmatism, and Critique of History in Adjudication and Legal Scholarship,” 67 University of Chicago Law Review 573 (2000)
  7. Legal Scholarship Today,” 115 Harvard Law Review 1314 (2002)
  8. Against Law Reviews,” Legal Affairs, Nov-Dec. 2004
  9. The State of Legal Scholarship Today: A Comment on Schlag,” 97 Georgetown Law Journal 845 (2009)

Below are some questions on the topics of legal education and legal scholarship I posed to the Judge followed by his replies. (Note: Some links will open in Firefox or Chrome but not in Safari.)


Question: What do you think is the single greatest shortcoming of legal education in America today?

Posner: There are several shortcomings; I don’t know how to rank them.

  1. Legal education is too expensive, in part because law school faculties are too large.
  2. Not enough law professors, especially at the elite law schools, have substantial practical experience as lawyers, and
  3. Law school teaching focuses excessively on legal doctrine, to the exclusion of adequate attention to facts, business practices, science and technology, psychology, judicial mentality and behavior, legal practice, and application of legal principles.

Question: Insofar as the teaching of legal ethics is concerned, is teaching the rules of professional responsibility and the cases interpreting them enough in your opinion? Or should some significant attention be devoted to familiarizing law students with some of the great works of the Western Philosophical tradition? – say, to Plato’s Gorgias or Aristotle’s Rhetoric (see here at p. 1924)

Posner:  I don’t consider instruction in legal ethics an important part of legal education. Aristotle’s Rhetoric is pertinent to the rhetorical dimension of legal practice, rather than to legal ethics. Gorgias can be read as critical of lawyers’ tricks, though there were no lawyers as such in fourth century b.c. Athens.

Question:  It has been argued that legal education is akin to learning a form of science. In what ways, if any, does it make sense to speak of the study of law as the study of legal science?

Posner: Law has nothing to do with science. It involves making and applying rules of conduct; the rules are based on legislative and other political decisions, common sense, societal values, judges’ personal preferences, intuition, rhetoric—not logical or scientific rigor.

Question: All things considered, what do you think of calls for reducing law school education to two years?

Posner:  I think that would be fine. A third year might be offered, but as something to be taken after the two-year graduate has spent some time in practice and wants some specialized further training.

Question: In your opinion, how, if at all, has the role of the law school dean changed in the past half-century? And if it has changed, what do you make of it?

Posner: Much more emphasis on fund raising.

Question: In Tagatz v. Marquette University (1988) you noted that tenure “tends to take some of the edge off academic ambition.” What are your views on the current tenure system as it operates in law schools and how, if at all, might you change it?

Posner: Tenure is a form of nonmonetary compensation, hence attractive to universities. The downside is it undermines the work ethic. I don’t know whether the benefits exceed the costs.

Question: (1) What are your views concerning affirmative action and tenure standards when it comes to promoting racial minorities? And do democratic principles justify bending evaluative standards?

(2) Is the problem of race the problem of the evaluative standards that law schools employ? If so, what is the alternative?

Screen Shot 2014-12-07 at 11.45.07 PMPosner:  (1) The only racial minority in the United States that needs affirmative action is the African-American minority. I doubt, though, that African-Americans who have the competence to be considered as law professors need a boost.

(2) I think law schools should give more weight to practical experience in hiring law professors, but I don’t think this relates particularly to African-Americans.

Question: Many years ago you wrote: “not all blacks are culturally black.” Would you a say a bit more about what you meant by that and do you still hold to that view? In answering that question, do you think that one can ever fully escape the consequences of his or her color even if one is, as you put it, an “assimilated black”?

Posner: I’m sure that almost all African-Americans are conscious of and think occasionally about being black—that’s inevitable given history, and it’s the same reason that secular Jews, who may have zero interest in Judaism or Jewish culture, remain conscious of being Jewish. But successful upper-middle-class African-Americans are so much like their white counterparts as not to be preoccupied with the racial difference.

Question: Is Socratic “cold call” method dying in law schools? Or is it already largely dead? If so, is this a good thing? Your views? Read More


The Varying Use of Legal Scholarship by the U.S. Supreme Court across Issues

While patent law is my core area of scholarly interest, I have also studied the use of legal scholarship by the courts. My co-author Lee Petherbridge from Loyola-LA and I have conducted several comprehensive empirical studies using large datasets on the issue. More precisely, we have analyzed how often federal courts cite to law review articles in their decisions. We have empirically analyzed the issue from a variety of angles. We have studied the use of legal scholarship by the U.S. Supreme Court (available here), by the regional U.S. Courts of Appeals (study available here), and by the Federal Circuit (available here). I won’t recount the finding of those studies here. Instead, I will report some new information and ask readers for potential explanations of the data.

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Should Empirical Legal Scholars Have Special Responsibilities?

Before delving into the substance of my first post, I wanted to thank the crew at Concurring Opinions for inviting me to guest blog this month.

Recently, I have been thinking about whether empirical legal scholars have or should have special ethical responsibilities. Why special responsibilities? Two basic reasons. First, nearly all law reviews lack formal peer review. The lack of peer review potentially permits dubious data to be reported without differentiation alongside quality data. Second, empirical legal scholarship has the potential to be extremely influential on policy debates because it provides “data” to substantiate or refute claims. Unfortunately, many consumers of empirical legal scholarship — including other legal scholars, practitioners, judges, the media, and policy makers — are not sophisticated in empirical methods. Even more importantly, subsequent citations of empirical findings by legal scholars rarely take care to explain the study’s qualifications and limitations. Instead, subsequent citations often amplify the “findings” of the empirical study by over-generalizing the results. 

My present concern is about weak data. By weak data, I don’t mean data that is flat out incorrect (such as from widespread coding errors) or that misuses empirical methods (such as when the model’s assumptions are not met). Others previously have discussed issues relating to incorrect data and analysis in empirical legal studies. Rather, I am referring to reporting data that encourages weak or flawed inferences, that is not statistically significant, or that is of extremely limited value and thus may be misused. The precise question I have been considering is under what circumstances one should report weak data, even with an appropriate explanation of the methodology used and its potential limitations. (A different yet related question for another discussion is whether one should report lots of data without informing the reader which data the researcher views as most relevant. This scattershot approach has many of the same concerns as weak data.)

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