Even as something like 200 clinical educators were preparing to descend on New York last weekend to engage in an exchange and discussion of scholarship (at New York Law School for the 25th Anniversary of the Clinical Theory Workshop and at NYU for the third Clinical Law Review Workshop), an article in the South Carolina Law Review raising some questions about (among other things) the value of legal scholarship was making the rounds on listservs and blogs. This confluence of events leads me to want to reflect on AntiDisEstablishmentScholarshipism.
I can’t fully explain to you what AntiDisEstablishmentScholarshipism means, but I will try to deconstruct it for you here, with minimal footnotes. Let’s start simply with one of its roots, AntiScholarship. I get this. I think I am a good person to talk about AntiScholarshipism because I was once a true believer and because I still very much appreciate why not everyone wants to spend time writing and reading law review articles. I take pride in the fact that my first publication in a law review was a short story, unadorned by footnotes. And as I confessed for the first time in New York this past weekend, my first “substantial” article was written on a dare to myself to produce something with 400 footnotes. Not surprisingly, I suppose, I was taken half-seriously.
But the fact is, I did move over to AntiDisScholarshipism a long time ago. What I mean by this is that I came to understand the University model of teaching and to value research and writing. I came to see value in writing to communicate what we know, what we are learning to know. I believe that thinking theory, thinking abstractly, can make us better teachers, better lawyers, even better people. I believe this work hones our skills, improves our brains, and maybe staves off Alzheimer’s. Maybe more importantly, as Claudia Angelos reminded a roomful of clinical folks at lunch a few days ago, we can all point to publications that have affected us and given us something – that have transformed our teaching, helped us understand the systems we operate in, named our struggles, articulated the reasons for what we intuitively believe. So I don’t dis scholarship so much anymore, which I think makes me an AntiDisScholarshipist.
Still, I remain skeptical about the scholarship enterprise as a whole. We all know the reasons why. The tenure system, rooted in publications for student-edited journals, contributes to the reproduction of hierarchy (fn: Duncan Kennedy) that many of us generally abhor. Law review articles too often are conversations with ourselves, exclusionary, formulaic and ungrounded in reality (fn Richard Delgado & Jean Stefancic, others). Therefore, I could easily revert to my AntiScholarshipism past, if I weren’t hell-bent on problem solving; the problem is, I want to grab the benefits I see in Scholarshipism, without falling prey to its practices of inequality and irrelevance. And so I seek a way to claim scholarship by redefining it.
Here’s where I begin: About 20 years ago, The Carnegie Foundation for the Advancement of Teaching published a report: Scholarship Reconsidered: Priorities of the Professoriate by Ernest L. Boyer. (fn needed). Boyer proposed a broader definition for scholarship than was traditionally assigned to the term in the university system, and laid out a four-dimensional paradigm that includes the following types of scholarship:
- Discovery (the norm for legal scholarship);
- Integration (often cross-disciplinary; contextualizes specialized knowledge; by illuminating connections, creates an extension of practice);
- Application (a theory/practice bridge; translational, as between professional community and the academy; demonstrates consequences in realistic, practical terms); and
- Teaching (focus on creation of new knowledge in the presence of learners).
At about the same time, then-Harvard president Derek Bok published an appraisal of the academy, Universities and the Future of America (another fn needed). Both works received a lot of attention in higher education circles. Subsequently, with the support of Carnegie Foundation president (and pedagogy expert) Lee Shulman, a second report was written and published by the Carnegie Foundation. The second publication, Scholarship Assessed, was developed from a survey of journal editors, scholarly press publishers and funding agencies. The authors came to the conclusion that scholarship across all disciplines seeks conformance with six basic standards: clear goals; adequate preparation; appropriate methods; significant results; effective communication; and reflective critique. Scholarship Reconsidered basically began with the premise that academic scholarship demands excellence in the disciplined and reflective discovery, transmission, and application of knowledge. Scholarship Assessed provided the scaffolding for evaluating scholarship, regardless of its type.
Clinical scholars are more likely to engage in Types 2, 3 and 4 of the scholarship paradigm set out by Boyer. Among the signature characteristics of clinical scholarship I see are:
- Broadened context, including a focus on trial (as opposed to appellate) courts, the law office, client lives, and community settings;
- Incorporation of interdisciplinary work, applicable to law practice, including, for example, linguistics, anthropology, psychology, and critical theory;
- Dialogic dynamics, or what Clark Cunningham describes as “the subject matter of our scholarship talk[ing] back to us.” (fn to Clark). Clark’s point, as I understand it, is that as clinical scholars write and reflect on clients, students, courts, systems, and lawyers, they are simultaneously engaged in the practice of law. This creates a unique structure for both giving voice and learning in action.
I am well aware of the political realities that make it difficult for clinicians to get tenure or even keep their jobs without bowing to the pressures of scholarship as usual; and I admire the pragmatists who, preferring to review student briefs or perfect policy arguments for a legislative agenda, nevertheless buckle down and get those 400-footnoted, doctrinal pieces out on Express-O. But if we are talking Best Practices here (and we are), I wonder if we might start articulating our own standards of excellence. What would they look like? I can imagine a world in which scholarship is valued because it, say, does no harm; is of use to practitioners; challenges assumptions; broadens horizons (by virtue of being descriptive); transcends the lawyer/client dichotomy; or is simply beautiful. In a world like that, I just might be persuaded to subscribe to a belief in Establishment scholarship, and become an official AntiDisEstablishmentScholarshipist.
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Best Practices for Legal Education 