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115 Harv. L. Rev. 1327 (2001-2002)
Legal Scholarship

handle is hein.journals/hlr115 and id is 1349 raw text is: LEGAL SCHOLARSHIP Deborah L. Rhode* Most legal academics should approach scholarship on legal scholar- ship with considerable wariness. It is difficult to engage in serious criticism without offending at least some valued colleagues, and ap- pearing arrogant, hypocritical, or both. Many of us justly fear discov- ering in our own work some evidence of the intellectual indiscretions that we condemn. In reviewing my own publications, I am too often reminded of a characterization of Warren Harding's speeches: an army of pompous phrases moving over the landscape in search of an idea. Sometimes these meandering words would actually capture a straggling thought and bear it triumphantly, a prisoner in their midst, until it died of servitude and overwork.1 Yet our understandable avoidance of scholarly self-scrutiny has some unwelcome byproducts. It has left us with no jurisprudence of legal scholarship.2 We reflect endlessly on the deficiencies of other participants in the legal culture - judges, legislators, lawyers, and government officials - but rarely devote similar attention to our own inadequacies. On the relatively infrequent occasions like this one, when we are explicitly invited to discuss legal scholarship, we seldom focus on the structural sources of the problems that we identify.3 This collective aversion to introspection carries a cost at individual, institutional, and societal levels. Assumptions about what is and is not valuable in legal scholarship significantly affect how academics shape their careers, how law schools choose and reward their faculties, and how those faculties influence, or fail to influence, legal institutions. * Ernest W. McFarland Professor of Law and Director of the Keck Center on Legal Ethics and the Legal Profession, Stanford Law School; B.A., J.D. Yale University. I am grateful for the research assistance of David Knight and Marti McCausland; the reference services of Paul Lomio of the Stanford Law Library; and for the comments of Cynthia Fuchs Epstein, George Fisher, Lawrence Friedman, Pamela Karlan, David Luban, Linda McClain, and William Simon. I WILLIAM G. McADoo, CROWDED YEARS 389 (1931). 2 George P. Fletcher, Avo Modes of Legal Thought, go YALE L.J. 970, 970 (1981). For an ar- gument that such jurisprudence is needed, see Edward L. Rubin, On Beyond Truth: A Theory for Evaluating Legal Scholarship, 80 CAL. L. REV. 889 (1992). 3 For failure to address the structural sources of the problems, see David P. Bryden, Scholar- ship About Scholarship, 63 U. COLO. L. REV. 641, 641-42 (1992); Robert Stevens, American Legal Scholarship: Structural Constraints and Intellectual Conceptualism, 33 J. LEGAL EDUC. 442, 442-43 (1983); David M. Tubek, A Strategy for Legal Studies: Getting Bok to Work, 33 J. LEGAL EDUC. 586, 586-87 (1983). For specific examples of the inattention, see Richard A. Posner, The Problematics of Moral and Legal Theory, xII HARV. L. REV. 1637 (1998); Symposium, go YALE L.J. 955 (1981); Symposium, Legal Education, 91 MICH. L. REV. 1921 (1993); Symposium, Legal Scholarship, 63 U. COLO. L. REV. 521 (1992). 1327

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