Tuesday, June 24, 2014

How not to win friends and influence people at a law professor conference

Announce that empirical legal scholarship is the dumbest idea in the legal academy in the last 20 years. And that most law & PhD. folks are only in law for the law school paychecks. As I just did. Yikes.

Update: For a more serious and slightly more measured version of my take on the issue of ELS, see this 2011 post.

via www.professorbainbridge.com

The debate over "law and . . ." seems to be coming to a head because of recent economic developments or lack of economic developments, perhaps I should say. My own perspective is unique as far as I know, which is probably due to my not paying that much attention to the debate.

Much of the "law and" stuff is valuable, or would be, if it were any good. It tries to be valuable. It is about good questions. Is law objective? Is it natural? Positive? Are principles real? In the history of law, did corporations evolve to answer the needs of the growing capitalist class? Were corporations around before that? Do judges decide cases based on law or on a lot of nonsense? A combination? And so on and on. Lots and lots of other questions, obviously. These are just some of the questions I'm interested in at the moment. I'm no longer so interested in whether some tweak in the regs will make M&A more efficient, partly since I think it's impossible to know anyway. A big change, well, yes, sure I would be interested in that.

What law professors evidently sometimes forget is that they, or rather some of them, about 20 per cent actually, have a big influence on the law and therefore on the WHOLE WORLD. Sorry, got excited there for a moment. They have this influence, like it or not, by seeing what no man (or woman!) has seen before, even if in the event it is really dismal news. (No, law is not the command of a benevolent deity, e.g.) Most law professors don't have this influence. I already said that. But apparently many have to try for a few of them to work out. Probably it would be a good idea if most law professors quit trying, but you don't want some central authority picking them out and telling them that. They have to figure that out on their own.

It's a good thing to devote oneself to teaching or to write practical, hands on stuff for the bench and bar. I doubt they will want that at Harvard or Yale, but at my small but undeniably cute law school, well, maybe. But I don't want to do that. I'm still swingin' for the fences and will till the day I drop from age or get pushed out to pasture.

All this talk about bench and bar misconceives the project of law. It assumes it is static and doesn't work itself pure or work itself something or other anyway, partly in response to law being conscious of itself, or less pretentiously, people looking at it, taking the big view, and asking, what's it all about anyhow? Among other things that makes inevitably ideological, which makes a lot of the scholarship utter rubbish. But here's the thing -- not all of it is! Admist the great piles of stinking manure, a few diamonds may be found. It is we, the legal scholars of the universe, who paw through that manure. And try to create the diamonds. And frequently just add to the manure. But not always.


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