Legal Commentary

Here?s a thought: whoever said ?theory=good, doctrinalism=bad?? Are there value-judgments placed on scholarship style and type? Is one perceived as more or less difficult, more or less useful, more or less ?academic?? Whatever happened to the careful, meticulous doctrinal scholars of 1910-1950? Has that art died out? Was it an art? I?m curious to explore the thoughts of so many bright minds here on Prawfs. Why the shift to theory or ?high theory?? Where did the value judgments come in as to value in the academic marketplace? A few ideas to pique interest and hopefully prompt posts:

1. What is ?pragmatic? scholarship? Must it always be devoid of theory (or thought to be so)?

2. Are there differences in degree (i.e. pragmatic scholarship from the 30,000 foot view which can incorporate theoretical trends?)? If so, does the marketplace recognize this?

3. Why do so many law review articles have what some describe as an obvious peppering of Raz, Rawls, and others when the utility of such for the piece - when you really look at it - is marginal at best. Is it our own ?scholar envy?? Are we signalling? If so, why? Is it a line indicating separation from dreaded doctrinalism? For example, in a piece on bankruptcy, one might lately see ?Rawls? views on bankruptcy are...? when, in the piece cited, there really isn?t a mention of bankruptcy at all.

4. Who does the bench and bar look to now? (begs the question ?should the bench and bar be looking to anyone??)

5. Could the diversity of jurisdictions within the US be the reason for the split? With no cohesive body of law, one has to take a higher road to pull things together as ?trends.? Perhaps this is the reason that, in the UK and Canada, doctrinalism appears alive and well (though not necessarily the most valued among newish scholars - and perhaps dwindling. Thoughts?).

6. What really IS harder to write? A high theory piece? Or a tough-slogging piece slicing and dicing a gazillion diverse cases to come to some rational, pragmatic conclusion at the end? (i.e. is this a dying art?)

7. Could the gulf between theory and doctrinalism be getting wider with the addition of a heavy emphasis on interdisciplinary hiring and publishing? Do people really know any law any more after law school?

Curious as to the thoughts of the masses.