About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

63 U. Colo. L. Rev. 627 (1992)
In Defense of Traditional Legal Scholarship: A Comment on Schlegel, Weisberg, and Dan-Cohen

handle is hein.journals/ucollr63 and id is 643 raw text is: IN DEFENSE OF TRADITIONAL LEGAL SCHOLARSHIP: A COMMENT ON SCHLEGEL, WEISBERG, AND DAN-COHEN STEVEN D. SMITH* Despite their differences in focus, the presentations given this morning share some common themes. One theme is the claim that legal scholarship can profit by carrying on commerce with other disci- plines-social theory, criminology, and so forth. This claim isn't re- ally controversial today; and I agree with it. There is also a more negative or critical theme running through the presentations, and that is their common dissatisfaction with traditional legal scholarship- meaning scholarship that is primarily devoted to the analysis of legal doctrine and that tries to communicate directly with practitioners and judges. In one way or another, the presenters all suggest that this kind of scholarship is pass6, unprofitable, perhaps even pernicious.' I want to take issue with this theme, and to offer a sketch of a defense of traditional legal scholarship. I will frankly confess at the outset that doctrinal analysis isn't something that I especially enjoy doing or read- ing. But I do think that doctrinal analysis has a valuable and even central place in legal scholarship. I. THE PERSISTENCE OF DOCTRINE-TALK Professor Schlegel's presentation today displays some interesting similarities to a well-known essay published almost three quarters of a century ago. Noticing these similarities may help us to appreciate the * Professor of Law, University of Colorado. 1. Professor Schlegel believes that something is deeply wrong with legal scholarship-and what is wrong, it turns out, is a fixation on the doctrinal paradigm which views law as rules, carefully ordered for sale. John Henry Schlegel, A Certain Narcissism; A Slight Unseemliness, 63 U. COLO. L. REV. 595, 599 (1992). For Professor Weisberg, the basic problem with current criminal law scholar- ship is that it is merely the old doctrine-gaming: its chief concern is with rational abstraction, organization, and interpretation of legal doctrine according to the precepts of analytical jurisprudence. Robert Weisberg, Criminal Law, Criminology, and the Small World of Legal Scholars, 63 U. COLO. L. REV. 521, 528-29, 530 (1992). Professor Dan-Cohen argues that legal scholars should not attempt to enter into the discourse of practicing lawyers and judges; much of his paper is devoted to explaining the discursive divide that creates an unbridgeable rift between theoretician and practitioner and pre- cludes any unity of discourse by which scholars and practitioners could communicate directly with each other. Meir Dan-Cohen, Listeners and Eavesdroppers: Substantive Legal Theory and Its Audience, 63 U. COLO. L. REV. 569, 574 (1992).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most