OrinKerr.com

Legal Scholarship and “the Canon”

In the midst of a response to Stuart Buck on the relationship between teaching and scholarship, Larry Solum writes that there is “one important way in which teaching undermines good scholarship”:

Young scholars spend enormous amounts of time on the “canon,” the cases and rules that are in their casebooks. And so it is hardly surprising that many of them end up writing about the core canon–frequently with the result that their scholarship is derivative and repetitive. In many law school subjects, the core has been examined from every possible angle on multiple occasiions over a period of decades; that makes it very difficult to say something new about the material that is in the casebook!

This is a very interesting claim if true. I wonder, though, is this true? It hasn’t occurred to me that younger faculty are more likely than senior faculty to end up writing about materials covered in casebooks, or that they are more likely to write on topics that others have covered. To the extent it is true, I don’t know why Solum thinks it is explained by focus on teaching, as compared to, say, interest in trying to stake a claim in a debate on a recognized important topic. Further, Solum’s claim that “the canon” has been “examined from every possible angle on multiple occasions over a period of decades” may be true in a few particular fields (such as constitutional law), but surely isn’t true in many others (my sense is that it’s not true in crim pro or crim law, for example). Perhaps Larry is on to something, but I don’t quite see the connections he has in mind. Does his description ring a bell for others?

UPDATE: Peter Spiro has more at Opinio Juris.  He also makes this very interesting point:

And where there’s less of a canon, it’s likely that there are less powerful individuals who have a vested interest in it and who are looking to enforce orthodoxies through appointments and tenure decisions. This also allows for more imaginative and foundational scholarship (in a way that does have generational implications).

This is a very intriguing point, and I think there’s something to it.  In some of the fields in which I teach, there are fairly strong dominant views on the “right” way to think of certain important problems.  I do think it tends to stifle creative thinking and open debate (although it’s possible I feel that way because I’m somewhat contrarian by nature — or as I stubbornly prefer to think of it, the common academic wisdom is often wrong.)