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Response to The Paper Waste

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[Editor's Note: Professor Bayer teaches Lawyering at UNLV, and previously served as Director of St. Thomas's Legal Research, Analysis, and Writing Program.]

I must disagree with the sentiments in "The Paper Waste: Legal Academic Writing." It is another smug, anti-intellectual attack on scholarship which seems to be part of a greater effort to transform legal education, and perhaps higher education in general, into a trade school. The infirmity of the blog is evident from its list of "smoking guns," lengthy articles recently published. At no point does the author try to prove that the articles are overly long. Yes, probably they are to some degree. But, perhaps they are no so very excessive taking into account the depth of treatment the authors offer to prove their points. As most articles contain abstracts, summaries, chapter sub-headings and tables of contents, it is not so difficult to find the relevant materials and to skim the rest.

Doubtless many articles could be shorter, more directed and written in more engaging prose. Similarly, the requirement at some schools for annual scholarship might be excessive. A very good, thoughtful article every two or even three years arguably is good production. Tweaking aside, the demand for intense, imaginative intellectual engagement has been integral to the high quality of legal education. We are not producing plumbers and bookkeepers, we are producing the leaders of our Society whose primary ability is the strength of their intellects. Law teachers hone the mind in a variety of ways through a variety of methods. Therefore, the teachers themselves must constantly hone their minds through intricate research, imaginative, demanding analysis and committing their research-analysis to writing.

True, articles that change the legal world are rare. If the only appropriate measure of an article's worth is whether it reflects the innovative creativity of a Holmes, Frankfurter, Hart, Dworkin (Andrea or Ronald), Posner, or Nussbaum, then the present system is a terrible waste of resources.

Rather, the powerful value of widespread, mandatory scholarship is requiring law professors to be part of not only the exchange of ideas, but also the critique, even creation of ideas. If an article finds a large, or even small but interested readership that may itself be inspired to produce great work, so much the better. Regardless, the blog like most of his fellows, refuses to understand how research and writing enhance the researcher-writer. It had been a long time since my last article. I recently finished a my latest work which is very long one, but, I feel, offers an appropriately detailed, ranging analysis of abstract moral-legal philosophy as related to American legal principles. My text may be precisely what the bloggers complain about. Yet, having finished the work, I have never felt so prepared to address my legal writing and other classes on the importance of legal analysis, organization, precision, depth and the "life of the mind" that informs the heart of law and legal practice.

If the authors of such blogs have their way, we will produce clerks, not attorneys. This is not to diminish the importance of thorough teaching, dedication to students and holding lively, useful classes. Moreover, no one denies the necessity of one-on-one contact with students and otherwise letting them know they and their welfare as budding attorneys are the reason we teach.

That being understood, I find the bloggers' position something like saying physical exercise is a waste of time unless you are good enough to be a professional athlete. Exercise is good for the person who takes the time and trouble to exercise well. And, the better health that derives from exercise, like the better intellectual health that comes from writing, inures to the benefit of those who come into contact with the now more fit individual.

 

Prof. Peter B. Bayer

William S. Boyd School of Law

University of Nevada, Las Vegas

 


 

[Editor's Note: This is a response to Bayer, written by BL1Y.]

Anti-intellectual? I certainly wouldn't think of myself as an anti-intellectual. I grabbed my two nearest compatriots and asked them if they were anti-intellectuals, just to double check:

Namby Pamby: I'm anti you asking me dumbass questions before I've even had a chance to spill coffee on my lap. Go away.

Robot Pimp: Only if I ever engage my self-destruct mechanism.

With the decades of combined higher education among us here at Con Daily, anti-intellectual is hardly a fitting description. I started to support Jon Huntsman after he said the rest of the Republicans need to -and I'm paraphrasing here- drop their boneheaded questioning of evolution. In our post Four Ways to Enhance Law Schools, we argued that analytical philosophy should be added to the 1L curriculum. Are there some academic endeavors that we think are silly or a waste of time (and student tuition dollars)? Sure. But going from that to claiming we're anti-intellectual is like saying anyone who wants to cut down on wasteful military spending hates the troops.

I have argued, from time to time, that law schools need to spend more time preparing their graduates to actually practice law, but that's hardly the same as saying law schools need to become trade schools. It's merely an argument that they should truly be professional degrees, and not merely a bachelors degree in law.

Moving on, Professor Bayer is correct that we never proved the articles cited in The Paper Waste were overly long. Perhaps they did both need to be 72 pages. But, that misses the point of the argument. Even if these articles needed to be that long, the point is that the massive pile of paper produced by legal academics every year devalues the entire venture. There are some 10,000 articles published every year, at least 500,000 pages. Aside from other legal academics, who has the time to sort through that mess and find the few truly enlightening pieces?

If you want to see something anti-intellectual, just look at the journals themselves. They take the few brilliant pieces and hide them away among tens of thousands of other articles, like the Ark of the Covenant being boxed and warehoused along side an endless number of identical boxes. Legal academia's addiction to publishing, valuing quantity over quality is anti-intellectual.

 

We are not producing plumbers and bookkeepers, we are producing the leaders of our Society whose primary ability is the strength of their intellects.

Professor Bayer has perhaps been away from the legal industry for too long. The typical lawyer does not spend his day leading Society. He makes routine appearances before a judge which last only a fraction of the time spent waiting to be called. He makes small modifications to a model will. He sifts through piles of contracts and catalogs their contents for a client engaged in a merger, and then through another pile of SEC no action letters. The great mass of lawyers spend their time as fungible cogs doing the grunt work of giant corporate machines, or else navigating the petty squabbles of their neighbors.

Some lawyers will go on to argue before the Supreme Court, or even become judges themselves, or be elected to Congress, or the state legislature, or city council. But, most lawyers will not. Simply comparing the number of such positions to the number of lawyers makes this patently obvious. You may not think you're producing bookkeepers, but the lawyer who spends most of his career filing routine documents with the SEC may have a slightly different opinion.

This is not to say that law students should not spend their time analyzing the rulings of the Supreme Court and contemplating greater policy issues. That certainly has its place and its value. But, law schools do need to stop fetishizing themselves. And, if not, Professor Bayer ought to stop characterizing the leaders of our Society as anti-intellectual, unless of course, he is anti-Society.

 

Professor Bayer may have a point that legal academic writing does help hone the mind of the professor, and thus make him a better instructor. We'll gloss over the 8 year gap in Bayer's publication history, or the great many professors hired shortly after law school who have a scant publication history, or the number of adjuncts who do not engage in academic writing at all. No, we'll just concede that Bayer is right that professors do need to spend time doing higher level thinking in order to teach their classes better.

Law journals don't need to publish it though. If you were to write an article that you thought was quite fine, and had it panned by the academic journal community, you don't have to return any intellectual value gained in the process. If law schools were to decide that instead of 10,000 articles a year, only 1,000 would be published, professors would not be required to write only 10% as much, to use their brains only 10% of the time. Instead, they would be forced to tighten their writing and focus on topics more relevant than whether a law school's treatment of writing professors violates the Equal Protection Clause of the Constitution (39 Duq. L. Rev. 329 (2001)).

Eliminating the paper waste would not only push professors harder to become better intellectuals, it would make legal academic journals far more relevant to everyone else who lives outside the ivory tower.


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