Wednesday’s Child: Academic Over-production

Les Green2 Comments

Today’s woe is scholarly over-production.

No one keeps up with the literature. There is too much. Some of the causes are well known. In addition to an over-supply of people (which increases the number becoming academics), there is institutional pressure to publish almost anything. We end up with what my former colleague Harry Arthurs calls a ‘production-driven research culture‘. Enabling this, there are also too many journals—especially in the US, where student-run law reviews proliferate, pumping out oceans of poorly chosen work that is then often edited so as to make bad writing even worse.

Less well understood are two internal factors.   Young academics seem increasingly keen to adopt  a ‘line’: an outlook capable of generating an article on almost any subject. In addition, the Facebook generation seems addicted to ‘likes’: watching their SSRN or Google Scholar hits rack up, never mind whether anyone is reading or engaging with their work. A word of woe about each of these.

The ‘Line’

I don’t blame rookies for working a ‘line’. I have seen promising young scholars fail to get appointments because they were thought to lack one—‘She seems smart; but I don’t see what her line is’.   Or, ‘He wasn’t very responsive. I asked him what his view implied for my work on inter-state trucking law and he had nothing to say.’

Law and economics is a famously productive defence against such stupid criticisms; so too are the utilitarian and neo-Kantian machines that clank and chug along in their charming, steampunk, ways. Whatever their demerits, they have the merit of never leaving one without an opinion, and of leaving no doubt in others’ minds about what one’s ‘line’ is.

But there is a downside. Probably, no such ‘line’ could be faithful to the law we have, or to the law we ought to have. And if you have a ‘line’ you will need self-restraint in knowing when it isn’t worth pursuing. I imagine people thinking, ‘But I’m sure you are all wondering what my theory has to say about the Roman law of dogs.’ Actually, no; we aren’t. We know what your theory has to say about things of general interest: that is why it is a ‘line’. And what matters—to those who care—about the Roman law of dogs is the doctrinal lore. We already know that if dogs’ happiness is happiness then we should count it, and if dogs matter because they make people happy, then we should optimize the distribution of dogs.   And we already know that, outside a public order of Right no one really owns a dog. They may have dogs, yes (and the dogs may make them happy)–but they do not have their own dogs.   Like tic-tac-toe, these games are fun to play, but only with a child.

Working a ‘line’ also tends to generate long articles. Before you’ve spun your story, you can have twenty pages on the history of the ‘line’ and, after you’ve done it, you can consider twenty pages of objections, including those that would only occur, as Bernard Williams once put it, to the malicious or the clinically literal-minded.   Best of all are objections coming from a different ‘line’. ‘Lines’ live off each other, symbiotically. This produces still more writing.

The ‘likes’

Followers, views and downloads are the new academic’s equivalent to ‘likes’.   They live in hope of the SSRN message that tells them the paper they posted last week, in the dead of the summer, scores a top-ten download. Or that academia.edu shows they have had viewers, or even followers, in Bhutan.

Now, no one can ‘like’ what you don’t write. And once written, you need to get it out anywhere and everywhere.   The otherwise admirable SSRN enables bad behaviour here. It is like taking whisky to an AA meeting. Since there is no substance editing in its journals, people need to rely on their internal editors to exercise restraint.  Few manage.

Often, there is often no editing of any kind. For example, In current number of the Philosophy of Law Ejournal (Vol. 8, No. 125: Aug 18, 2015) there are 12 papers, only two of which are even about the philosophy of law. The Social and Political Philosophy eJournal is as bad, or worse. Now, I do not really think that their authors imagine that the following papers are any kind of philosophy: ‘‘It’s Not for a Grade: The Rewards and Risks of Low-Risk Formative Assessment in the High-Stakes Law School Classroom’, or ‘What leads to Homeless Shelter Re-Entry: An Exploration of the Psychosocial, Health and Contextual Demographic Factors’. More likely, they were unable to resist ticking every conceivable box on the upload form, hoping for one more ‘like’ from someone, somewhere.

I am not sure how to cope with the pressures of the ‘line’ and the ‘like’.  And I don’t think it is always blameworthy to yield to them.  But in addition to external pressures to over-production it is certainly producing a tragedy of the intellectual commons.

Jurisprudence: stop that right now!

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The reader who slogs through the 52 pages of Dan Priel’s latest critique of legal philosophy will get a good survey of some of the (fairly casual) remarks its practitioners have made about the ‘methodology’ of jurisprudence.  Spoiler alert:  but they won’t learn anything about how the subject might be done.

Once again, Priel tells everyone else their subject is empty or question-begging.  He seems to flirt with the idea that there is a sociological jurisprudence that is not only a sociology of law, but a sociology of the nature of law (to the extent that law has a nature).  In any event, we are all to stop ‘conceptual analysis’.  What we are to start is not clear, though it seems to have something to do with measuring and counting–but without any preliminary worries about what counts as what.

The best defense of this proposal would simply produce the goods. We should be given access to Priel’s  measures, data, models, and calculations that explain what law is.  We can then check the validity of his measures, replicate his analyses, verify his calculations, and so on.  (It has been a long time since I calculated a chi-square, but give me an afternoon and I’m sure I can get back up to speed.)

But while scolding analytical jurisprudence for not following the lead of the ‘many philosophers’ who find illumination in things like cognitive science and psychology, Priel coyly keeps whatever findings he has to himself.  Or is his work–and its demand for empirical evidence–a failure by its own standards?

Perhaps not.  When we arrive, finally, at p 52 we discover that it has all been an introduction to a prolegomenon to a preliminary to a research programme.  Its only positive offering is that we should stop reading HLA Hart’s book The Concept of Law 

‘A good first step would be to stop the unprofessional practice of reading with veneration, and perhaps at all, the book most responsible for the misguided conceptualist orientation that dominates contemporary jurisprudence.’

I admit to having hoped for more than a ‘first step’ in fifty pages. In any case, Priel’s step has been taken many times over.

Many academic lawyers, and most legal sociologists, show no signs of having read Hart’s book at all  (or of having understood it if they have).  The first step has been taken. So what’s holding up progress?  It isn’t as if there is a  licensing board in Oxford’s High Street, or in New York’s Washington Square, that must approve all research in legal sociology.  Just do it!

There is a good piece of sociology of knowledge waiting to be written about why some academic lawyers feel so strongly that the only thing stopping them from doing what needs to be done is that other people are doing something else.  I’m not sure what explains this, though I do have some conjectures.