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The lingering core of legal scholarship

Published online by Cambridge University Press:  02 January 2018

Susan Bartie
Susan Bartie*
Affiliation:
University of Adelaide, Australia
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Abstract

The purpose of this paper is to consider how leading scholars are interpreting the role and status of the core tenets of legal scholarship in England and Australia – the tenets that have provided an element of unity in legal scholarship over the past century or so. Instead of focusing on the way that scholarship has diversified and expanded, the paper considers whether elements of the prior orthodoxy have remained: do the tenets persist, what status are they afforded and what impact will their presence have on the future identity of the discipline and its conception of law? The paper captures insights into the way that scholars – as opposed to administrators or managers – are interpreting changes in the discipline. It is based on the premise that scholarly attitudes can shape the discipline and that therefore such attitudes are worthy of study.

Type
Research Article
Information
Legal Studies , Volume 30 , Issue 3 , September 2010 , pp. 345 - 369
Copyright
Copyright © Society of Legal Scholars 2010

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References

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5. To say this is not to ignore the significant influence that funding models adopted by university governance bodies have on the nature and direction of research. However, as argued more forcefully later in this paper, research audits do not completely stifle the ability of scholars to govern the discipline.

6. This is a common phrase used in studies of communication patterns in the sciences to describe the communicative relations within an institution.

7. Whiteley's study was limited to scientists.

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24. These traits are best identified and explained in Rubin's work. See Rubin, above n 2.

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26. ‘Black letter’ refers to the ‘black or Gothic type which was often used in formal statements of principles or rules at the start of a section, typically followed by commentary’: Twining, above n 1, p 151, n 61.

27. Legal history and jurisprudence (in some forms) are exceptions to this.

28. Specific examples are given in the final part of this paper.

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40. Cownie, above n 30, at 78.

41. Hyland, above n 16, pp 104 and 106.

42. Ibid, p 104 (emphasis added).

43. A review of early book reviews in law journals clearly evidences this fact.

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45. Ibid, pp 19–20.

46. See, eg, Chesterman and Weisbrot, above n 3, at 714.

47. See, eg, the attitudes expressed in Fleming's review of the fifteenth edition of Pollock's Law of Torts published in the Sydney Law Review: (1953) 1 SLR 282.

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54. G Jones ‘Traditional legal scholarship. A personal view’ in Birks, ibid, p 12 (original emphasis).

55. Ibid.

56. Cheffins commences his discussion by saying that ‘A much-remarked upon feature of British legal literature is its “descriptive and doctrinal” orientation’: Cheffins, B ‘Using theory to study law: a company law perspective’ (1999) 58 CLJ 197 at 197.Google Scholar

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58. Ibid, at 218–220.

59. Cownie, above n 32, p 54.

60. Ibid, p 54.

61. Ibid, p 58.

62. This characterisation has proven influential. Eg, Vick writes with reference to Cownie's work that ‘it is unlikely that most academic lawyers today would consider themselves “pure” doctrinal researchers’: Vick above n 15, at 181.

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66. Ibid, at 72–73.

67. Ibid, at 73–75, quoting from B Hepple ‘The renewal of the liberal law degree’ (1996) CLJ 470 at 485 and 481 and Thomas, P ‘Introduction’ in Thomas, P (ed) Socio-Legal Studies (Ashgate: Dartmouth, 1997) p 19.Google Scholar

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70. Siems, ibid, at 153.

71. Duxbury ‘When we were young’, above n 20, at 488. These ideas are developed further in Duxbury Frederick Pollock, above n 20.

72. Twining, above n 1, pp 130–141.

73. Ibid.

74. Vick, above n 15, at 179.

75. See Duxbury, N Jurists and Judges: An Essay on Influence (Oxford: Hart Publishing, 2001) pp 61–117.Google Scholar

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79. Ibid, at 555 (references omitted).

80. See, eg, Brown, W Jethro Law schools and the legal profession’ (1908) 6 Comm LR 3 at 8;Google ScholarDunbar, above n 11.

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92. J Goldring's unpublished work is quoted in Barker, above n 37, at 446.

93. See Justice Kirby ‘Welcome to law reviews’[2002] MULR 1.

94. For an open criticism of the way that judicial sentiment can serve to limit the horizon of legal scholarship, see J Gava ‘Law reviews: good for judges, bad for law schools?’[2002] MULR 560.

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96. An exception arises from the debate between Justice Kirby and Gava, see above nn 93 and 94.

97. See, eg, K Shatwell ‘Some problems of post-war legal education’[1948] ALJ 17; D Derham ‘Legal education – university education and professional training’[1962] ALJ 209.

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103. Ibid, at 46–50.

104. Bollinger, above n 81, at 2167.

105. Ibid, at 2168.

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108. Ibid, at 2032.

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113. Ibid, at 497.

114. Feldman writes that ‘On the academic side, an increasing number of contemporary legal scholars no longer write with the explicit or even implicit hope of influencing the direction or reform of the law, either in courts or in legislatures’: ibid, at 488–489. He cites the following scholars as evidencing this tendency: Hamburger, P Separation of Church and State (Cambridge MA: Harvard University Press, 2002)Google Scholar; Shiffrin, S Dissent, Injustice and the Meanings of America (Princeton: Princeton University Press, 1999)Google Scholar; Feldman, S Please Don't Wish Me a Merry Christmas: A Critical History of the Separation of Church and State (New York: New York University Press, 1997)Google Scholar; Compus, P ‘The obscure object of desire: hermeneutics and the autonomous legal text’ (1993) 77 Minn LR 1065 at 1094–1095;Google Scholar Fish, S ‘Dennis Martinez and the uses of theory’ (1987) 96 Yale LJ 1773;CrossRefGoogle Scholar Schlag, P ‘Normative and nowhere to to’ (1990) 43 Stan LR 167.CrossRefGoogle Scholar

115. Feldman, above n 112, at 491–492.

116. Ibid, at 496.

117. Ibid, at 491–492.

118. This is a position taken by many critical legal studies scholars.

119. Madison, M The idea of the law review: scholarship, prestige and open access’ (2006) 10 Lewis and Clark Law Review 901 at 906.Google ScholarMadison quotes Getman, J In the Company of Scholars: The Struggle for the Soul of Higher Education (Texas: University of Texas Press, 1992) p 43 Google Scholar: ‘Research.…clothes with respectability the attitudes that the academic enterprise is more important, demanding, and complex than other endeavours and that first-rate academics are different, smarter, and more creative than other people’.

120. See Fish, S There is No Such Thing as Free Speech and it's a Good Thing Too (Oxford: Oxford University Press 1994) pp 273–279;Google Scholar Bergin, T The law teacher: a man divided against himself’ (1968) 54 Va L Rev 637 at 641;CrossRefGoogle ScholarPost, above n 104.

121. See Shapiro, F ‘The most-cited law review articles’ (1985) 73 Calif L Rev 1540;CrossRefGoogle Scholar Shapiro, F ‘The most-cited law review articles revisited’ (1996) 71 Chi-Kent L Rev 751;Google Scholar Shapiro, F ‘The most cited legal scholars’ (2000) 29 JLS 409;CrossRefGoogle Scholar Shapiro, F ‘The most cited legal books’ (2000) 29 JLS 397;CrossRefGoogle Scholar Shapiro, F ‘The most cited law reviews’ (2000) 29 JLS 389;CrossRefGoogle Scholar(1996) 71 Chi-Kent L Rev 781, and discussion in Bartie, above n 99, at 730.

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126. See Edwards, Judge Harry Reflections (on law review, legal education, law practice, and my alma mater)’ (2003) 100 Mich LR 1999.CrossRefGoogle Scholar

127. Ibid, at 2002.

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130. For a dialogue between scholars concerning how a book was intended to engage with the judiciary, see Bigwood, R ‘Author's response to the commentators’ (2007) 32 AJLP 161 at 164.Google ScholarBigwood addresses the critique of his work by Gava: Gava, J ‘The audience for Rick Bigwood's Exploitative Contracts ’ (2007) 32 AJLP 140.Google ScholarGava considered that Bigwood's work was based on the implicit premise that judges would be able to follow and incorporate ideas contained within the work, whereas Bigwood clarified that he had not envisaged a direct transfer of ideas.

131. Cownie, F and Bradney, A Gothic horror? a response to Margaret Thornton’ (2005) 14(2) S & LS 277 at 280.Google Scholar

132. Ibid, at 277–278 (emphasis added).

133. Ibid, at 280, quoting from Thomson, A Critical approaches to law: who needs legal theory?’ in Grigg-Spall, I and Ireland, P (eds) The Critical Lawyers' Handbook (London: Pluto Press, 1997) pp 2–10 Google Scholar and A Bradney ‘Benchmarking: a pedagogically valuable process? An alternative view’ (1999) Web JCLI 6 at 430–443; and Cownie, above n 32, pp 133–141.

134. For a discussion of the role of the Society of Legal Scholars and various conferences and journals, see Cownie, F and Cocks, R A Great and Noble Occupation! (Oxford: Hart Publishing, 2009) pp 137–141 and 183–186.Google ScholarThe Socio-Legal Studies Association was formed in 1990 to promote and encourage the work of socio-legal academics.

135. Eg, the Griffith Law Review, established in 1992, has, since 1996, encouraged the publication of interdisciplinary, social and critical legal research.