Cranes and skyhooks

In his latest contribution to MoneyLaw, Jeff Harrison minces no words in expressing disdain for legal skyhooks:

Monroe Freedman describes some writing about legal ethics as comparable to engineers writing about sky hooks. . . . In short, it is completely irrelevant to anyone but about 10 people who are genuinely intrigued or building resumes. His comments could be applied to all areas [of legal scholarship].

Jeff's rightful condemnation of skyhooks reminds me of Daniel C. Dennett's 1995 masterpiece on the philosophy of science, Darwin's Dangerous Idea: Evolution and the Meanings of Life. Dennett says this of skyhooks: ""Skyhooks would be wonderful things to have, great for lifting unwieldy objects out of difficult circumstances, and speeding up all sorts of construction projects." Id. at 74. Alas, skyhooks not only don't exist; they can't ever exist.

An unhealthy reliance on skyhooks is fatal to any scientific enterprise. That includes law. Dennett's prescription for biology is one that we lawyers would be well served to embrace. For every skyhook on which we have wagered our professional lives, we must strive to build a genuine crane. In biology, that means finding molecular building blocks for every process. Nothing quite that concrete drives legal science. But we would be remiss if we did not seek, in every act of pedagogy and scholarship, (1) to affirmatively propel the enterprise of subjecting human behavior to the governance of rules, (2) by means of a crane real enough to be falsified by empirical tools at the hands of an independent and politically honest broker. In law as in any other scientific discipline, skyhooks have no place. We're too busy building things to accommodate such idle indulgences.

Sky Hook -- One or Two Words?

That actually may be the title of an 80 page law review article with 300 footnotes.  That article has not been written but, if it were, it might be more interesting than most of what is published.

It has been some time since I wrote to complain about the surplus of law review articles. I've forgotten what it came to when I multiplied it all out but, lets see: 200 law schools, 2 reviews per schools, 4 issues per year, 5  articles per issue. I think that is 8000 per year. Five articles per issue is probably high but not when you throw in student notes and comments.

That seems like way too many to be of any use especially if you agree with my friend who said to me: "Jeff, what are we doing? Law schools are not good professional schools, they are not really graduate schools, and the vast majority of teachers are not scholars." I would have put the last part of that a bit differently. I'd say, whether they are or could be scholars, they do not do that much scholarship. By that I mean something other than a brief for one side of an issue or another.

So, 8000 articles but it gets worse. In a recent article, Monroe Freedman describes some writing about legal ethics as comparable to engineers writing about sky hooks. Plus, they write about the implications of sky hooks for air traffic. In short, it is completely irrelevant to anyone but about 10 people who are genuinely intrigued or building resumes. His comments could be applied to all areas.  In fact, the most skyhooky article I have ever seen was about the efficient breach and recently published by the Virginia Law Review.  I think these articles are mainly written by privileged people who would be happier in other departments but the money and jobs are not there. While not  privileged, I do not exclude myself. I can spend hours wondering about the efficient breach when I actually do not think it exists and, if it did, we would not know it. But it still spins around in my head (but perhaps not in print since my own offering is still looking for a home).

Oh no, it gets even worse than worse. What we do to the people we hire? We tell them to add to the total or they will lose their jobs. In short, they are required to make a bad situation worse in order to get a life time job making it worse still.

And thanks to the pandering to U.S.N & W.R. it gets even  . . . .  worse. If your school is like mine, it is all about numbers. Three articles of almost any quality are better than one very fine article. I would be hesitant to tell a new hire to write one very fine article and expect to get promoted. Like teaching, flash has replaced substance as the standard.

So, is there a point at which this crashes and burns or has it already and what we have now is the debris?