Despite the recent attention given to the relevance of faculty scholarship, the discussion seems neither new nor confined to legal academic. Without reraising that particular issue, I want to pose a similar one: what is the value of legal scholarship as a pedagogical tool? Leaving aside seminars, for which I think law review articles are essential, should we use legal scholarship in doctrinal courses, and if so, what’s the best way to do it?
This question came up when I was selecting my civil procedure casebook for the upcoming term. Some casebooks mention law review articles only in the notes if at all, while others make extensive use of long excerpts. I ended up going with a casebook that splits the baby on this issue. It has a “perspectives” section at the beginning of each chapter that raises some broad issues and contains a few excerpts from leading works on the particular subject. Of course, there are good ways and bad ways to use law review articles. Assigning the articles as background, but only discussing the cases, seems like a bad way. Conversely, using the excerpts to introduce themes, and referring back to them (“how would Professor Perdue reply to that argument”), seems like a good way.
The question of whether to integrate legal scholarship into doctrinal teaching can be rephrased as a question of whether legal scholarship is useful beyond advancing the general corpus of legal wisdom. My own feeling is that it is, because if used correctly, it can introduce some useful forest into the trees individual cases represent. But if that’s the case, then legal scholarship may be more useful than some have recently suggested.
Posted by Patrick Luff on August 18, 2011 at 09:08 AM
Comments
That last question may have been imprecise, but the point is that if you think integrating legal scholarship into doctrinal teaching is useful, then you would also think that legal scholarship is useful beyond advancing the general body of knowledge (because it can also be useful as a pedagogical tool). So it would have been better to say that the answer to the former question provides at least a partial answer to the latter.
Posted by: Patrick Luff | Aug 18, 2011 10:49:24 AM
In my view, any kind of commentary can be helpful in doctrinal courses to the extent they shed light on what’s going on in the field. A professor teaching a subject has a very short period of time to help students develop a rich understanding of a subject: Commentary that happens to have been published in an article can offer a critical perspective, or present an overview, or bring pieces together, in a way that helps students get a much better understanding of the subject relatively quickly.
On the other hand, I’m not sure why “the question of whether to integrate legal scholarship into doctrinal teaching can be rephrased as a question of whether legal scholarship is useful beyond advancing the general corpus of legal wisdom.”
Posted by: Orin Kerr | Aug 18, 2011 10:41:59 AM
It depends on the subject, and on the articles. I’d add another category to your analysis. Some law review articles need to be taught because they’re historically intertwined with an area of law. I couldn’t imagine teaching Internet Law without assigning excerpts from Johnson and Post’s Law and Borders and from Easterbrook’s Law of the Horse. I would think that Currie’s work is similarly relevant in a conflicts of law course.
Posted by: James Grimmelmann | Aug 18, 2011 9:50:52 AM
Good question. I’ve had a good experience with this. I was taking a doctrinal upper-level class, where a professor assigned two dueling law reviews on an open question of law. The articles discussed cases we had already read, which was nice, because there was no need to read Section 1. I found the approach to be a welcome diversion from the usual fare, and it was a good way of integrating scholarship into the classroom
Posted by: Former AE | Aug 18, 2011 9:41:42 AM