Two Important Perspectives on Scholarship

This weekend, I read two informative articles on scholarship that approached academic writing from two very different perspectives.

The first is On Legal Scholarship by Robin West and Danielle Citron. A short version of the article is available here at the Association of American Law Schools' website. The full article is available here.

West and Citron defend legal scholarship against claims that it is too "normative," esoteric, and impractical. From the article:

The goal of normative scholarship is to influence the shape of the path of the law, but its impact will be felt differently than that of briefs, opinions, or white papers, and sometimes over a longer time frame. Normative legal scholarship does not aim to have the impact of an amici brief written for a particular case or a white paper written for a congressional subcommittee. But that does not mean that it lacks impact or that if it has an impact, it is not scholarly. Scholarship advocating a “reasonable person” or “reasonable woman” standard for purposes of some tort causes of action, arguing that cyber gender harassment constitutes a form of sex discrimination, or making the case for a new law protecting consumers of financial instruments against seller over-reach, or documenting the pernicious and racially skewed effects of over-incarceration of a large swath of the population for relatively trivial and victimless crimes, and demonstrating the racially skewed effects of both the death penalty and of failures of policing in both city and rural populations, are all self-avowedly “normative,” and arguing that all of that violates fundamental constitutional norms, and are all, in different ways, looking to change law quite fundamentally, albeit not directly through the filing of a lawsuit.

The impact of normative scholarship is felt, rather, through the force of its argument on its readership, including students who go on to become judicial clerks, lawyers, judges, and legislators. More broadly, and sometimes more deeply, it is felt in the understanding of law and the possibility it holds out for justice, held by law students who go on to become critically and constructively engaged citizens, bringing to the work of citizenship a deep understanding of both the law that is their calling and the justice it purports to serve. The doctrinal and reformist scholarship – all of which aims to align law with justice – that they read and in some cases edit in their much maligned student-run law reviews, contribute mightily to that self understanding. It all rests on the understanding that the work of justice is squarely within the purview, and the reach, of law. It also rests on as well as demonstrates the implicit assumption that that work of the citizen-lawyer requires scholarly virtues: deep engagement and rigorous thought.

The second article that I read was Steven Pinker's, Why Academics Stink at Legal Writing. Pinker dives into the myriad shortcomings of scholarly writing and seeks out explanations for how these problems are caused and how to combat them. From the article:

When Calvin explained to Hobbes, "With a little practice, writing can be an intimidating and impenetrable fog," he got it backward. Fog comes easily to writers; it’s the clarity that requires practice. The naïve realism and breezy conversation in classic style are deceptive, an artifice constructed through effort and skill. Exorcising the curse of knowledge is no easier. It requires more than just honing one’s empathy for the generic reader. Since our powers of telepathy are limited, it also requires showing a draft to a sample of real readers and seeing if they can follow it, together with showing it to yourself after enough time has passed that it’s no longer familiar and putting it through another draft (or two or three or four). And there is the toolbox of writerly tricks that have to be acquired one by one: a repertoire of handy idioms and tropes, the deft use of coherence connectors such as nonetheless and moreover, an ability to fix convoluted syntax and confusing garden paths, and much else.

Anybody interested in legal writing and the value of legal scholarship should read both of these articles in their entirety.