Advocacy Scholarship and the Place of Law Schools in the University

In a recent symposium in the Illinois Law Review, Jason Mazzone maintains that many, if not most, Constitutional Law articles in laws reviews are principally advocacy pieces. He contends that these articles are not scholarship. He insists that law professors should engage in the same kind of research and writing employed in other departments. See here. (For interesting commentary by Paul Horwitz, see here). In so arguing, Mazzone puts forward the most recent echo (though he does not go quite as far) of the insouciant claims of Stanley Fish, who insists that professors in universities should confine themselves to politically neutral academic discourse.  

I think it worth observing that advocacy pieces in Constitutional Law have counted as scholarship in American law schools, and the narrow conception of scholarship recommended by Mazzone and Fish borrowed from other disciplines has long been rejected in American law schools, not to mention some other humanities and social science departments. Mazzone and Fish apparently would not allow such articles to be counted for tenure in law schools. Would legal education be better off if law professors did not write what in many respects many, if not most of them, are best equipped to write? It seems obvious to me that the clash of advocacy scholarship has sharpened our understanding of legal issues. John Stuart Mill was on to something when he thought that advocates were more likely to see the benefits of a particular position. In the end, I do not see the advantage of imposing the author's crabbed conception of scholarship and inquiry as the one-size-fits-all mode of writing in the legal academy.

Having said that, I am not claiming that advocacy pieces are the only or even the best approaches to the understanding of law or legal issues. Law reviews have always had articles featuring the on-the-one-hand-on-the-other-hand handwringing neutral sounding discussions of legal issues, and the move toward interdisciplinary scholarship has made law reviews far more interesting and important. Moreover, many advocacy pieces are shoddy. They often sport the kind of bad advocacy that avoids confrontation with the most serious challenge to the positions they take. Nonetheless, law schools have rightly declined to dismiss advocacy pieces merely because they argue for apparently preconceived positions, let alone because they dare to depart from neutral academic discourse.

It is also worth observing that the call of Stanley Fish for politically neutral discourse highlights one of the great failures of American education. Universities ought to be a place where student citizens come to learn how to debate the great issues facing the United States and the world. But where would they go to do this? In most departments, they can learn facts that bear on such issues, but the curriculum itself does not present adequate opportunities to explore the policy issues presented.

The university is infected with positivism, and normative issues are for the most part unexplored. Political Science is a discipline thoroughly infected with the positivist disease. The exceptions within the discipline are Constitutional Law (which does not come close to addressing the broad range of policy issues) and Political Theory. The theory is valuable, but it approaches policy issues from a high level of abstraction that is under inclusive with regard to the levels of abstraction analysis needed to approach many issues. The same applies to Philosophy Departments that themselves are situated in a discipline that is not well equipped to explore the interaction between theory and practice.  Public policy schools tend to be dominated by cost-benefit analysis; economic departments by narrow economic analysis.

A law school is one place in the university where a broad range of policy questions can be addressed. Of course, one weakness is that most of these questions are addressed by resort to a model of adjudication, but that is not the exclusive model employed and the adjudicatory model quite frequently engages in an exploration of relevant policy factors. In short, law schools fill a vacuum in scholarly writing and in the education of citizens wrongly left open in the general university.

This brings me back to Fish and Mazzone. The imposition of their imperialistic conceptions would deprive the university of a type of scholarship and teaching that is vitally needed in a democratic society. 

 

Comments

[Fernando Teson]

Dear Steve:
I recall you and I once had a conversation about this and we disagreed. My co-author, a young philosopher from UNC Greensboro, published this:
https://www.academia.edu/7734633/In_Defense_of_the_Ivory_Tower_Why_Philosophers_Should_Stay_Out_of_Politics

I think his arguments apply equally to legal scholarship. Our job is not to be advocates, or even "neutral". It is to seek the truth.
Cheers,
Fernando