In this 2020 blog post, entitled somewhat gradiosely The Deafening Silence: Why People Generally Don’t Take Me On in the Marketplace of Ideas, I explain why, well, people generally don’t take me on in the marketplace of ideas.
But this article by Katy Barnett of Melbourne Law School got me to thinking further about the role that academics play, or rather don’t play. Katy’s article is about how in Australia and perhaps elsewhere, teaching doctrinal law—basically, the core law-school subjects—is out of fashion. Doctrinal scholarship involves determining what the law is; that contrasts with theory. As Barnett says,
Currently, there is a tendency to reward theoretical work, where grand claims can be made as to it its significance and relevance. “I am exploring fundamental concepts of justice” sounds more interesting than “I am trying to impose some order on the law of contract damages”. Being confined by practice means that your work might look less flashy, but that does not take away from its importance.
I got a sense of that while working on my forthcoming article about how the word material is ambiguous. I had to explore the nature of vagueness and how it relates to figuring out what material means. Not being remotely a scholar of such stuff myself, I cheerfully importuned some actual scholars. They signaled that they had no interest in my practical questions. I bought a couple of their books, flipped through them, then set them aside—they were wall-to-wall theory.
I suspect that a preference for theory helps explain why I rarely encounter full-time law-school faculty who write anything relevant to what I do. (The one notable exception I’ve encountered is John F. Coyle of the University of North Carolina School of Law; go here for links to my three blog posts that mention him and a link to the podcast I did with him.) I can’t say I blame them. I spent years in semi-isolation, grinding out analyses of the building blocks of contract language. It ultimately paid off for me, but I suspect it wouldn’t have come close to allowing anyone to climb the greasy pole of academia.
Of course, I explain in my 2020 blog post that practicing lawyers don’t have much appetite for my kind of work either. I suspect that Katy could write a follow-up article to that effect. I hope she does!