I recently read Brian Frye’s article “Deodand,” which will be published in the Seattle University Law Review. In the article, Brian argues that legal scholarship should be viewed as an art form. Drawing inspiration from Yoko Ono’s Grapefruit, he offers several “pieces” in which he instructs the reader on how they too can make legal scholarship that is conceptual art.
For some time, Brian has been pushing for a more expansive understanding of what qualifies as legal scholarship. He not only makes these arguments explicitly in his papers, but implicitly through the types of papers he writes. He has, for instance, published an article discussing the patentability of inventions in the movie Gremlins and written erotica discussing legal scholarship. He even proposed to his wife in the abstract of an article they co-authored about what they term “the right to unmarry.”
I loved Deodand, which I think is a worthy addition to Brian’s long-term project. And I’m a fan of the project, as well. As I have written elsewhere, I feel that legal scholars’ conceptions of what qualifies as legal scholarship are too narrow. For that reason, I like Brian’s argument that our understanding of what legal scholarship is should be broader, and I especially like that he is willing to write strange and delightful things that push at those boundaries. By writing such papers, he gives others permission to do the same. If the Spears-Gilbert Professor of Law at the University of Kentucky College of Law can do this and get away with it, then so can the rest of us!
Reading Deodand also made me reflect on some of my own work. I recently finished writing a book review which will be published in the South Carolina Law Review. In it, I make the argument that books and articles in which authors refuse to substantiate their claims, or substantiate their claims using only subjective evidence, should not be considered scholarship. This is so, I argue, because the scholarly project “requires above all a large degree of epistemic humility and a willingness to show one’s work.”
(The review is of Anthony Leaker’s book Against Free Speech; the specific argument I object to in the above passage is Professor Leaker’s claim that any need to explain how “[t]he United States and the United Kingdom are structurally, institutionally, systemically racist” and that “racism pervades every day life and language” “is itself testimony to just how deep-rooted racism is.” People can agree or disagree with the merits of Professor Leaker’s contentions, but being asked to provide evidence for your arguments should never be proof that your arguments are correct.)
What Deodand made me think about was how I could delight in strange, fun, and boundary-pushing scholarship from people I admire, while at the same time being scornful of efforts by scholars with whom I disagree, such as Professor Leaker, which do not comport with traditional notions of scholarship. Do the rules only apply to arguments or people I do not like? This is an important question (at least to me), because I should not be dismissive of arguments or scholars just because I disagree with them. I have been thinking about this a lot, and the answer I have come to is that I am interested in the republicanization of scholarship. (To be clear, this is small-r republicanization, as opposed to democratization.)
Here’s what I mean. Scholarship consists of two tasks: the production and dissemination of knowledge. Both tasks are important–if new knowledge isn’t being produced, then the endeavor isn’t really scholarship, and if the knowledge isn’t being shared, then there’s not a lot of point in acquiring it. (Monsanto and Pfizer–among many others–would, I am sure, disagree.)
Both tasks are equally important, but they need not be equally rule-bound. When it comes to the dissemination of knowledge, it is not obvious why the form of dissemination should matter. Scholars traditionally share their work through books and articles, but there is no reason why they shouldn’t be able to share it through podcasts or YouTube videos. Indeed, these methods of sharing the information may help reach a much larger audience than is possible with articles or books–surely a desirable outcome!
However, when it comes to the production of knowledge, some rules still matter. In discussing what he terms “liberal science”–the Enlightenment system for producing knowledge–Jonathan Rauch identifies two rules that are critical. First, no idea is beyond questioning. Second, no person has final say on what is and isn’t true. These rules should still apply to the scholarly production of knowledge, I think. (In fact, I would apply them to all production of knowledge, but the scope of this blog post is more limited.)
When I say that I want scholarship to be republicanized, then, what I mean is that I want to eliminate rules relating to the dissemination of knowledge while maintaining standards concerning the production of knowledge. I do not seek the total liberalization of scholarship; there will still be meaningful restrictions on how the game is played. Scholars, unlike opinion columnists, politicians, and bathroom stall graffiti artists, will still be required to support their ideas with objective evidence. A republicanized model of scholarship would recognize, however, that how scholars share their evidence-backed ideas does not much matter, as long as the form gives the audience enough information to evaluate the evidence on offer.
Using this model, there is a coherent explanation for why I loved Deodand and did not like Against Free Speech. In Deodand, Professor Frye played with the form of the law review article–he got creative with how he presented the knowledge he was sharing–but he did not claim any special authority when it came to the production of knowledge. As such, readers were free to accept or reject his arguments based on whether they found them convincing. In contrast, Professor Leaker claimed special, unassailable knowledge in Against Free Speech by arguing that his assertions were correct and that asking him for evidence of them was proof that he was right. (I have other problems with the book, too, but this was the aspect of it that most bothered me.)
At a minimum, then, the republicanization model allows me to justify liking some scholarship and not liking other scholarship. I think it could also be useful more generally as a means of reducing or eliminating needless gatekeeping and hierarchy caused by our traditional understanding of what is and isn’t scholarship.
There are some limits on the idea, though. The biggest is that it may not work particularly well outside of legal scholarship. As a field, law stands alone in that its scholarly journals are edited and published by students. At most journals, articles never go through peer review or peer editing. Moreover, the standard law review article is 50-70 pages long–an unfathomable length in other fields. Given these oddities of the legal academy (there are many others), it may be that innovations or reforms regarding our understanding of what qualifies as legal scholarship would be unwelcome, unnecessary, or unworkable in other fields.
I don’t have this idea fully fleshed out yet, which is either a sign that this an interesting idea that will provide me months of joy as I work through it, or that it’s totally crazy! I’m thinking about writing a paper on this topic, depending on which of those two options ends up seeming the more likely. There is certainly a lot that I still need to mull over!
Chauvinisms 