Reply to Orin on Standards in Legal Academe

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April 15 2008 2:09 PM

Reply to Orin on Standards in Legal Academe

Having just emerged from a period of reading many more law review articles than is no doubt good for my health, I guess I just have to dissent from 

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, that "what makes Yoo's memos so remarkable is precisely how much they resemble con law articles that you might read" in legal scholarship. Yoo's memos certainly fit what one might describe as bad legal scholarship. But unless there's some law-faculty oath I don't yet know of, it sure doesn't seem to me like that's the "prevailing academic standard."

Part of our disagreement may just be identifying what's wrong with Yoo's work. You suggest that all of legal academe is filled with "result-oriented" work, as if this is the central failing of Yoo. The memos are indeed result-oriented. But it seems to me quite possible to write a memo/article that reaches a result the author prefers while still making a useful contribution to scholarship—either because the article sheds useful light on the historical, philosophical, pragmatic, etc. underpinnings of the theory she supports, or because it honestly engages an existing debate and makes an original case for her side's view, or for a host of other reasons.  Electing to pursue research one believes will ultimately support one's views—as long as the research itself is honestly pursued and contrary results accounted for—doesn't necessarily doom the work.

It's thus your later criticism that's the key—i.e., that the work isn't "real, honest, or serious." By that metric, Yoo's memos just don't fly. I haven't read everything in the law reviews this year (heaven forbid). And I'm willing to buy results-oriented as a descriptor. But do you really think the prevailing standard is also dishonest or false? If so, we may be in the wrong business here.

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