Posted by Einer Elhauge, guest-blogging: Response to Professors Tribe and Balkin. http://volokh.com/archives/archive_2007_05_20-2007_05_26.shtml#1179978167
Well, my little piece on the death of doctrinalism (see below) seems to have excited a bit of attention over at [1]Balkanization, drawing responses from my good friends (and even better scholars) Professors Tribe and Balkin. A few words in response: I think the main problem is definitional. I do not think Professors Tribe and Balkin would deny that Harvard and Yale often reject some scholars as �too doctrinal.� But, as I took pains to stress in my posting, this claim does not include people who take doctrine seriously, so the question is what we mean by �doctrinal� work. To avoid an I-know-it-when-I-see-it type test, I offered a specific definition. Professor Tribe objects that my �description of �doctrinalism� is so narrow that it definitionally excludes most of the best doctrinal work I've encountered in the past several decades.� Well now, given my definition, I cannot be excluding �doctrinal� work; I am excluding something else. This objection is a little like objecting to a claim that short people (defined as less than 5'6" tall) have a very hard time making it in the NBA on the ground that some short 5'11' people are in the NBA. Professor Balkin objects that, given my definition, �there's very little scholarship these days that is doctrinalist.� Yes, that was my point � it is dead. Indeed, Professor Balkin confirms my point when he says that �legal scholarship that gets you a good job has to be interdisciplinary.� Precisely. His point is just that this work usually still takes doctrine seriously, with which I agree entirely, which is why I define �doctrinal� to exclude work that just does that, as well as to exclude work like that by Professors Tribe and Balkin, not to mention myself. Maybe you don�t like my particular definition of what is meant when scholarship is deemed �too doctrinal.� Fine, feel free to propose another. Really, feel free, I am not at all sure I have the best definition yet, so am more than glad to take nominees. But whatever plausible definition you come up with, I am confident it will remain true that it is harder to get hired as a doctrinal scholar now than it used to be, and that the proportion of doctrinalists is higher in constitutional law than in other fields. Professor Tribe also objects to my provocative little sidebar about �the oddity that the marquee legal subject, constitutional law, is also the least intellectually respected among law professors because it is the most doctrinal.� He offers three responses: �[1] its real world importance, [2] the high regard in which it is held in law school and university settings, and [3] its locus of much substantive intellectual accomplishment.� But points 1 and 2 simply confirm my point that, like it or not, constitutional law is the marquee legal subject. Point 3 confuses the ordinal with the absolute. There is no inconsistency between the claim that constitutional law scholarship is the least intellectually respected in today�s academy (because a higher proportion of it is doctrinal) and the fact that much of it has substantive intellectual accomplishment. After all, we outside of constitutional law like to think we have lots of work with substantive intellectual accomplishment too, thank you very much. It is all about the relative proportions. And I think the plain fact it is easier to publish a dull doctrinal constitutional law article than a dull doctrinal article about anything else. But really this was just a fun aside, not the main point, which was to warn aspiring scholars to avoid doctrinalism. Professor Tribe also complains that my list of the �dazzling dozen omits many scholars who are the most cited and most highly regarded.� Granted, but then again I was not offering a list of the top 12 scholars. I was just offering a list of great interdisciplinary scholars I happened to know had no PhD. I could have named many more. Finally, Professor Tribe says �I'm inclined to conclude that Professor Elhauge's insights don't explain recent hiring patterns, at Harvard or elsewhere, and certainly nothing he says should discourage those with enough of what Einer describes as �raw talent and creativity� from pursuing their intellectual interests in law and legal thought wherever those interests lead them.� On the hiring patterns, I shall have more to say in tomorrow�s posts, but it is indisputably the case that entry level hiring has strongly favored JD/PhDs, and I think equally clear that under any plausible definition it has disfavored doctrinalists as well. I can only wholeheartedly agree with Professor Tribe that those with raw talent and creativity should not be dissuaded from pursuing their intellectual interests in law. The question is what the best strategy for pursuing those interests are, and I think it is pretty clear that if you do not have a JD/PhD, you should get a fellowship to make your work less doctrinal if you want to maximize your odds of getting a top job on the entry level market. Or failing that, learn how to do good interdisciplinary work elsewhere and then make a lateral move on the very hot laterals market, as I discuss in tomorrow�s post. And if you have a chance on the laterals market to hire Professors Tribe or Balkin, grab it. References 1. file://localhost/var/www/powerblogs/volokh/posts/Balkanization
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