Foreword: why write?

• Author: Chemerinsky, Erwin

INTRODUCTION

This wonderful collection of reviews of leading recent books about law provides the occasion to ask a basic question: why should law professors write? There are many things that law professors could do with the time they spend writing books and law review articles. More time and attention could be paid to students and to instructional materials. More professors could do pro bono legal work of all sorts. In fact, if law professors wrote much less, teaching loads could increase, faculties could decrease in size, and tuition could decrease substantially.

The answer to the question "why write" is neither intuitive nor obvious. Nevertheless, as a professor who has been writing for almost thirty years, much of which likely never has been read by anyone, (1) I find myself inevitably asking what is worth writing about and for whom. As a new dean (of a new law school), I have begun to think of this question in a more institutional context: what faculty behaviors should a law school encourage and reward?

The answer to this question seemed far easier earlier in my academic career, as it probably is for most faculty members beginning in the academy. I was writing to establish my academic reputation (and to get tenure). I knew that writing that impressed other academics was the key to advancing in my chosen profession--pleasing those within my institution, opening the door to moving to other schools, and fostering my reputation so that I would receive recognition such as being invited to speak at conferences and being thought well of by my peers in academia.

As I observe my more junior colleagues, I realize that they are far more sophisticated than I was in working toward these goals. They spend far more time than I did in making strategic choices about topics that will lead to prominent placements and taking actions to gain recognition. They focus much more than I ever did on the hierarchy of law reviews and trying to draw fine distinctions among them in deciding where to publish. It is now common for faculty to send out hundreds of reprints to other academics. I never have sent out reprints; it always felt like uncomfortable self-promotion.

I, of course, do not mean to deprecate faculty members choosing to write to advance their careers. The reality is that being an outstanding teacher has great rewards within one's own institution, but I don't know that I have ever heard of an instance of a professor being recruited to a more prestigious school because of his or her reputation as a teacher. Doing pro bono work--even handling high profile cases--does not, at this point in the history of legal education, bring much in the way of status or advancement. (2) I often felt that my colleagues looked at my appellate pro bono cases the way they would regard the mountain climbing of another colleague on weekends:

vaguely interesting, but unsure why someone would do it. A young faculty member wanting to establish an academic reputation and perhaps "advance" to more prestigious schools would have to be advised that pro bono advocacy is not the path to get there. That path unquestionably is scholarship.

Although writing for professional advancement might be an adequate answer at the individual level, it raises a question for the legal academy more generally. Why should law schools require and encourage scholarship, and what types of writings deserve recognition?

There are superficial answers to this that have a kernel of truth, but that ultimately aren't very helpful. Law schools are usually part of universities, and a key aspect of being a faculty member in a university is scholarship. Most universities have some form of campus-wide review of promotions and tenure, and there would be serious problems if law faculty did not publish. But this just shifts the question of why write to another level and asks why universities put so much emphasis on faculty scholarship. (3)

There is also the superficial answer that law faculty members don't have enough to do with their time if they don't write. Law school classes generally meet twenty-eight weeks of the year. Teaching loads are light compared with many other departments in universities. Even including the weeks of grading, teaching law still leaves professors with a good deal of time without professional obligations. Yet there are many things faculty could do with this time that would have professional benefit and likely enhance their teaching, such as doing pro bono work; why should a university encourage scholarship over these other activities?

In my opinion, as legal academics, we write to add significant, original ideas to the analysis and understanding of the law; as people, we write to understand ourselves and the world in which we live. Ideally, scholarly writing offers insights that are useful to others, but at the very least, it helps the author understand an area better and clarify his or her thoughts. Frequently, that greater knowledge and understanding helps in teaching as well.

A good place to begin examining more fully the question of why we should write is with a heated debate engendered by Judge Harry Edwards, who questioned the value of the direction of contemporary legal scholarship. The debate over Edwards's article produced the most analysis in recent years on the question of why law professors should write and what the focus of their legal scholarship should be. After describing this debate, I turn my attention to the unstated crucial question in this debate: for whom should law professors write? Strikingly, most of the books in this review issue are written for other academics. There are not reviews of new casebooks written for students or treatises written for judges and attorneys. Ultimately, the greatest force of Edwards's critique of legal scholarship is that the audience of law students, lawyers, and judges is no longer particularly valued. The recognition of the multiple audiences of legal scholarship is important because it helps in seeing the benefits of writing. However, academic writings, including the books reviewed in this issue, can serve many different audiences and meet many different goals: helping law students, aiding judges and lawyers, and advancing knowledge and insight. Achieving these goals is the answer to the question of why write. But it is a mistake if the academy values scholarship directed to only some of these audiences or accepts only some of these goals as appropriate. Finally, I examine the role of writing in our personal lives, recognizing that we write for ourselves and to discover the world around us. It is through our writing that we communicate both to one another and to ourselves.

1. THE HARRY EDWARDS DEBATE

   Several years ago, United States Court of Appeals Judge Harry Edwards wrote, in these pages, a scathing indictment of current legal scholarship. (4) Edwards argued that legal scholarship, especially at elite institutions, has become increasingly focused on abstract theory at the expense of doctrinal analysis more likely to be useful to judges. (5) Edwards claimed that "many law schools--especially the so-called 'elite' ones--have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and pedagogy." (6) Coming from Edwards, this was a particularly compelling critique. He was an esteemed professor specializing in labor law before being appointed to the United States Court of Appeals for the District of Columbia Circuit. (7) He knows the academy and trends in legal scholarship, as well as obviously knowing what is useful for those on the bench.

   Edwards's critique produced a number of responses from prominent scholars and judges. (8) Some challenged Edwards's description and argued that doctrinal scholarship continues to be produced. Professor Robert Gordon, for example, had his research assistant, Ariela Gross (now an eminent professor at the University of Southern California Law School), search the contents "of three major law reviews in 1910 and every tenth year thereafter, to sense historical trends; and of five major law reviews in the last five years, to sense current trends." (9) Gordon concluded that theoretical or interdisciplinary articles were most common during the 1920s and 1930s, at the height of the legal realist movement, and increased during the late 1980s and early 1990s. (10) However, he found that doctrinal articles remained frequent during this latter time. Dean Lee Bollinger similarly disputed Edwards's claim by pointing to the extensive doctrinal scholarship by faculty members at his school, the University of Michigan Law School. (11)

   Others agreed with Edwards's descriptive statement that doctrinal scholarship was being replaced by theoretical writings, but challenged his normative conclusion that this was undesirable. Professor George L. Priest, for example, argued that social science and philosophy do provide practical assistance because they analyze "the effects of law on the citizenry, the values imbedded in the law, and how the public interest may best be achieved." (12) Likewise, Judge Richard Posner responded by defending the...