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Transformative Scholarship:
Legal Academic Knowledge for What?

By Rachel F. Moran

These comments continue the theme I chose for my year as AALS President, transformative law, by turning to legal scholarship.  For most faculty, scholarly work is central to a sense of professional identity– but in ways that are, to some degree, constrained.  This column addresses obstacles to transformative scholarship and identifies and celebrates some successful examples of it.

Transformative scholarship is undertaken in the service of civic-mindedness.  It addresses what law professors, practitioners, aspiring lawyers, and members of the general public can do to improve society.  Such research may be rooted in theories of justice and rights, in insights from cognate disciplines and professions, or in specific questions related to legal practice.

Transformative scholarship is rich in possibilities and reflects as many ideological perspectives  as the term “activism” itself.  Judge Michael McConnell's research on religious freedom, Catharine MacKinnon's research on pornography and civil rights, and Kimberlé Crenshaw's research on intersectionality all reflect the desire to use scholarship to effect social transformation.

Transformative scholarship does not necessarily require taking a side in the longstanding debate over the relative merits of “theoretical” versus “doctrinal” research.  The best transformative scholarship probably combines both.  Professor Joseph Sax developed basic theoretical work exploring the nature of public trusts; the doctrinal refinement and application of his insights led to the Michigan Environmental Protection Act.1  David Harris incorporated theoretical insights from other disciplines into his groundbreaking legal analysis on racial profiling; in a more doctrinal mode, he has educated courts and law enforcement officers about the implications and utility of his findings.2

Transformative scholarship may largely be understood by noting what it is not: it is neither arcane nor disinterested.  It engages real-world problems in ways that those charged with solving such problems can understand.  These characteristics sometimes undermine its academic cachet, but while the legal academy benefits from research that some might consider recondite, a high level of abstraction should not be a prerequisite for respectability.

1. Academic respectability, scholarly arcana, and reform advocacy

These insights (or laments) are nothing new.  On the eve of World War II, sociologist Robert Lynd wrote a book posing a question to the academy: “Knowledge for What?”3  Speaking of his home discipline, he insisted that:

[S]ocial science is not a scholarly arcanum, but an organized part of the culture which exists to help man in continually understanding and rebuilding his culture.  And it is the precise character of a culture and the problems it presents as an instrument for furthering men’s purposes that should determine the problems and, to some extent, the balance of methods of social science research.4

Lynd’s “for what?” question still resonates today, no less pressing for legal scholars than social scientists.  Ironically, law schools could recently be described as relatively infertile ground for scholarly arcana.  Only twenty-five years ago, Professor Wallace Loh included this sentence in his casebook on Social Research in the Judicial Process:

Law schools, unlike graduate schools, are primarily teaching schools, not research schools. 
. . . Most social scientists, in contrast, view teaching as ancillary to their research commitment. If they were as preoccupied about teaching as their law school colleagues, their scholarly productivity would be compromised.5

Contemporary law school faculty would truckle at this comparison.  Only the rare scholar would cheerfully endorse the notion that research is a relatively unimportant part of his or her career, a philosophy deemed more appropriate to trade schools. 

But as legal scholarship sought increasing academic respectability, various prices were imposed.  Continuing from Loh's historical survey:

[S]ocial science and legal realism were offshoots of the same historical root, namely social reform.  However, by the 1930s, they were branching out in different directions.  Social scientists aspired to academic respectability and political neutrality—as law professors had half a century earlier—by severing their ties to social action and by adopting the language and methods of the “hard” sciences.6

Academic respectability thus required erudition and abstraction and a concomitant shift away from reform advocacy—a component of transformative scholarship. 

I have written thus far as if “academic respectability” is an obvious good.  For individual academics, it presumably is.  But for the field of law as a whole, its intrinsic value is contested.  In his famous 1992 critique of legal academia, Judge Harry Edwards complained that law schools too closely resemble graduate schools, focusing excessively on topics of little use to judges and practicing attorneys.7  His commentary raises the question of what purpose legal scholarship should serve.  For example, the New York Times reported two years ago that federal courts are citing academic scholarship less frequently.8  This trend may simply reflect the impact of widely available on-line databases that facilitate citation of primary sources rather than secondary literature, but also may suggest, according to Edwards, that judges and appellate lawyers find academic research of decreasing value.

In the competition between academic respectability and reform advocacy, Edwards weighs in on the side of “reform advocacy” – but the reform he seeks is itself modest, disinterested, even arcane in its own way.  Edwards defines “reform advocacy” largely as serving the collective enterprise of the legal profession – clarifying doctrine for judges and practitioners – rather than fostering social change outside the courtroom.  Such scholarship may be (and generally is) admirable, but it too eschews broad social transformation as a goal.

Transformative legal scholarship is not mired in either scholarly or professional arcana.  The prototypical example of transformative law, in the eyes of most legal academics (and probably practitioners and laypersons as well) is Brown v. Board of Education,9 which in 1954 overturned the “separate but equal” doctrine that legitimated Jim Crow segregation.10  Brown is a vivid success story, both inspiring and daunting, of transformative law.11

One might think that this landmark victory, largely the culmination of a brilliant litigation strategy associated with Howard University Law School (referred to below as “Howard Law”), was also an outstanding work of legal scholarship.  On closer examination, however, Brown differs substantially from what we currently define as “scholarship” – a point that should prompt re-examination of how we use that term.  The differences between legal scholarship then and now tell us much not only about the lawyers behind Brown, but about ourselves.  After grappling with Brown’s implications for transformative scholarship, I will describe contemporary efforts that offer alternative ways of conceptualizing this research.

2. Brown considered as a model for transformative law and legal scholarship

Brown is a landmark case with an especially interesting history.  Consider how the institution that provided much of its scholarly force became a font of intellectual firepower on civil rights.  As Richard Kluger documents in his book Simple Justice, the path to Brown commenced with an academic purge at Howard Law of a scope to shock a tenured law professor.  Starting in 1930, incoming Dean Charles Hamilton Houston trimmed the faculty (firing part-timers and demoting one Full Professor to Instructor), shut down the night school that had allowed his own father to earn a law degree, raised academic standards for admission, and reduced the graduating class from what had been 58 students in 1923 to 11 in 1934.12 

In doing so, Houston turned Howard Law into an institution that less resembles most contemporary law schools and more resembles our best legal advocacy centers by providing scholars, activists, and practitioners (often the same people) for the NAACP Legal Defense Fund (LDF).  Howard Law was largely federally funded.  Congress responded to Houston's statements and actions in support of civil rights by threatening to curtail that funding; Houston welcomed that prospect rather than sacrificing his school's academic freedom.  Howard Law’s faculty and alumni, working at or with the LDF, pursued a decades-long litigation strategy that ultimately led to overturning the “separate but equal” doctrine.

Howard Law had certain advantages in pursuing this long-term litigation campaign: excellent institutional support, the luxury to provide intensive faculty attention to a select few top students, and the need to make a virtue of necessity.  To succeed in a largely segregated profession, Houston had to take risks.  Howard Law’s students had little, and faculty had no, opportunity to excel via the conventional paths to greatness available to other leading institutions.  Only the emergence of great African-American lawyer-scholars like Robert L. Carter and Spottswood W. Robinson III, largely at Howard, would ultimately integrate elite law school faculty.  (If this in turn diluted Howard Law's ability to attract the best and brightest African-American faculty, one suspects that this “self-inflicted wound” was happily endured.)

The intellectual triumph of Brown’s team of attorneys and outside scholars is undeniable.  Thurgood Marshall assembled an interdisciplinary task force of lawyers, political scientists, and historians from across the world, who worked together for six months in 1953.  Under pressing time constraints, they developed a theory on the original understanding of the Fourteenth Amendment that neutralized their opponent’s best arguments and facilitated the Warren Court’s outlawing of segregated public education.13  In Brown’s wake, Marshall predicted the end of school segregation by 1959,14 but turning a legal victory into transformative impact on public education was a longer and less successful project, particularly given the Court’s later decision in Brown II that desegregation proceed with “all deliberate speed.” Notwithstanding this setback, Brown’s fundamental success was not merely in reshaping public education policy, but in shifting the nation’s self-perception from a society rooted in segregation to one committed to equality.

The most obvious problem transformative scholars would have with Brown as a model is its breathtaking scope, which few could hope to emulate.  But there is another less obvious difference between this transformative scholarship and the contemporary demands of the law school world: the transformative lawyering exhibited in Brown barely resembles our current notions of scholarship.

Traditional legal academic publishing played little or no role in establishing the theoretical and doctrinal basis for Brown.  Rather than affording a debate stretching out over months or years, the impending hearing forced disparate scholars to confront one another in the crucible of the LDF office—the diametric opposite of an “ivory tower”—to produce their best work quickly.  Only after 1954 did some members of the Brown team who were or would become honored faculty, such as Charles Black and Jack Greenberg, publish well-regarded papers on Brown’s theory and implications in a more standard academic mode.15  Theorization in the legal academic literature largely followed the courtroom triumph.

3. Viable models for combining reform advocacy and academic respectability

If the effort behind Brown seems too large, too unique, and too distant from our own time to provide a good model for transformative legal scholars, many contemporary examples warrant emulation.  I now review some successful efforts and the principles each reveals.

      A.  Devoting sustained attention to a single problem

The academic world often assesses scholarly productivity as prolific writing about discrete topics.  A legal academic model more friendly to transformative scholarship would recognize the value of sustained attention to a single problem—sometimes instantiated by a single client or group of clients—as a way of obtaining deep understanding and fostering fundamental change.

Consider the example of Neal Katyal, recently of Georgetown Law School and now Principal Deputy Solicitor General of the United States for the Obama Administration.  With Laurence Tribe, Katyal co-authored a Yale Law Journal article in April 2002 asserting that the military commissions then being established by the Bush Administration were unconstitutional.  When the Office of Military Commissions was constituted, Katyal contacted the chief defense counsel and offered his services.  He ultimately collaborated with two defense attorneys, Lt. Cmdrs. Charles Swift and Philip Sundel, successfully arguing before the Supreme Court what became the landmark 2006 case Hamdan v. Rumsfeld.16

Katyal's efforts to transform academic scholarship into effective action were extraordinary, but not qualitatively different from that which other transformative legal scholars can and do undertake.  Georgetown’s willingness to provide him with adequate time and resources to pursue this case deserves both note and praise.  His sustained attention to a single lawsuit exemplifies the spirit of Brown translated into a form that contemporary legal scholars can imagine pursuing.  Katyal’s work also demonstrates how one can maintain academic respectability even while breaking some of the rules.  His work was “interested,” not dispassionate.  It addressed complex areas of constitutional law but waged a defense of our most cherished principles that went well beyond a purely academic debate. Katyal's efforts provide an excellent example of what transformative legal scholarship can achieve and of what we consumers and promoters of legal scholarship can choose to value.

B.  Forming partnerships with non-academics

My previous column noted the tendency of legal academia to undervalue clinical work.  No one, however, looks askance at clinical professors doing what they are hired to do.  For non-clinical professors, perhaps particularly theorists, to venture into practice is less common, but still respected when—as with Neal Katyal's partnership with Lt. Cmdrs. Swift and Sundel—it means taking on a prominent, novel, constitutional case of first impression.  Most cases where academic lawyers (and their theoretical insights and doctrinal knowledge) are most needed have much lower profiles.

Legal scholars have not wholly neglected the challenges of injustices so pervasive and commonplace as to seem almost ordinary.  Professor Eric Yamamoto has long been a leading figure in Critical Race Theory, but one who resists being limited to theory.  His influential 1995 essay on “Critical Race Praxis” was a self-conscious effort to push those in his field into the messy, and often low-profile, world of transformative litigation.  Yamamoto decried “the disjuncture between progressive race theory and political lawyering practice” and “the intensifying dissociation of law from racial justice.”17  He lamented that

Race theorists, particularly legal race theorists, and political lawyers often seem to operate in separate realms: the former in the realm of ideologies, discursive strategies, and social constructions; the latter in the realm of civil rights statutes, restrictive doctrinal court rulings, messy client management, discovery burdens, and politically conservative judges; the former in the ethereal realm of postmodern critiques of knowledge and power; the latter in traditional civil rights rhetoric and strategies.18

Yamamoto has done more than simply identify the divide between theory and practice.  He has tried to bridge this gap in many ways, notably teaming up with anti-sweatshop activist and MacArthur Genius Grant winner Julie Su.  Su was a civil rights attorney in Los Angeles when she became aware of the plight of Thai garment workers kept in de facto slavery by their employers from 1988 to 1995.  With the Asian Pacific American Legal Center, she achieved substantial success in forcing garment manufacturers and retailers to accept legal responsibility for illegal acts of their suppliers.19

Su and Yamamoto collaborated to write a chapter on what Critical Race Theory might “offer to and learn from groups engaged in building alliances and forging coalitions.”20  Their piece acknowledges their different perspectives from the outset: Su is especially concerned with the ability of those in subordinated communities to gain power; Yamamoto's complementary interest is how to “remake civil-rights law and practice into a viable instrument for progressive change.”21  Readers can assess for themselves the success of this particular effort to address cross-racial solidarity among minority groups placed in potential conflict.  What I note is the clear statement that even highly theoretical scholars can and should aspire to be transformative—ideally by working with those who themselves engage in struggles for change.

      C. Embracing controversy in a world that idealizes a studied distance from conflict

My previous column addressed the political reaction that controversial advocacy, such as that undertaken by environmental law clinics, can induce; that these enterprises exemplify transformative scholarship is understood.  One of the most striking and successful examples of transformative legal scholarship in our time, however, may be the sustained effort of scholars like those associated with the University of Chicago Law School to promote the discipline of “Law and Economics.”22

The Law and Economics movement shows that even a highly theoretical analysis can be influential and politically interested, embracing conflict as the price of success.23  Law and Economics transcended a narrowly theoretical orientation by aiming directly at influencing judicial decisions, encouraging student interest, and even establishing, with Olin Foundation assistance, educational programs to introduce judges and others to economic concepts.24  Some critics like law professor Mark Tushnet ultimately doubt the long-term transformative influence of the field both within and beyond the academy, largely because generations succeeding the movement’s founders have become both more arcane in their research and more moderate in their politics.25  Although the extent and permanence of the impact of Law and Economics is open to debate, and while its shifting commitments illustrate the difficulties of changing both academia and society more broadly, this movement is a prime example of legal scholars taking social transformation seriously and pursuing it assiduously.

     4. Valuing transformative legal scholarship

As these examples demonstrate, transformative scholarship remains a vital part of legal academia.  However, as former AALS President Deborah Rhode notes in a 1992 review of legal scholarship, “[i]f we are seriously committed to improving the quality and impact of academic work, we need to alter both individual and institutional reward structures.”26  Rhode favors helping young faculty conduct empirical work that generates facts rather than opinions, arguing that institutions should be more flexible about the kinds of academic research they value, and that “the tenure system should be both more rigorous and less rigid.”  In a key passage, she states:

The most productive opportunities for some talented faculty lie elsewhere than theoretical tomes or dutiful tramps down already well-traveled doctrinal paths. More of their time and talents could go to other labor-intensive projects that generally are undervalued in legal education, such as skills training or supervision of clinical and pro bono projects.27

Institutional reforms such as Rhode describes would be welcome.  But we can make one immediate change that requires no budgetary analysis or formal accommodation.  Prior to any such reforms, we as faculty can adjust our own opinions of academic respectability.  Within broad bounds—continuing to demand scholarly ethics, creativity, and competence—academic respectability is what we scholars judge it to be.  Sustained, engaged, brave, and effective transformative research should be especially valued.  A legal academy that recognizes that civic-minded research, far from being suspect, should be encouraged and embraced will be stronger for having made that choice.