Journal of International Dispute Settlement, 2014, 5, 235–237

doi: 10.1093/jnlids/idu003
Advance Access Publication Date: 7 February 2014

EDITORIAL

A Comment on Thomas Schultz’s

Editorial
Pierre Schlag
University Distinguished Professor & Byron R. White Professor of Law, University of Colorado Law School

At some points in one’s life as a legal academic, one is called upon to think broadly
about one’s relation to the positive law of the state—to its forms of reasoning, its in-
stitutional make-up, its elaborate doctrinal corpus. Those who are judges and lawyers
may have to think about such questions too—but they are all highly constrained by
their job descriptions. The judge has an office (in the most impinging sense of that
term), and the lawyer has a client (in fact, with luck, the lawyer is never without
one). The relations of the judge and lawyer to positive law are already largely
scripted—and in ways that are quite concrete—at least in comparison to the situ-
ation of the legal academic. The latter, of course, does have a script to follow, but the
contours and content of that script remain abstract, negotiable, yet to be created.
Now granted, it does seem absurd to start comparing degrees of freedom between
legal academics on one side and judges and lawyers on the other. And yet…. And
yet it bears noting that the legal academic—let’s say crucially, a legal academic with
tenure—has an extraordinary degree of freedom over the conditions of his or her la-
bour. The legal academic decides what to write about, what is important, who the
audience might be, what the objectives are (and so on). If he wants to throw inter-
temporal surrealist parties in law reviews, he can. If she wants to write in a com-
pletely different, more lyrical, register, she can. If he or she…. Of course, there may
well be costs. And it may all come to nothing. And it’s true as well, at least in the
United States, that the corporatization of the university, the march of the quantitative
metrics, the rule of the rankings, and the triumph of administration over faculty are
increasingly impinging on this freedom. But let’s not kid ourselves: Tenure is still an
extraordinary privilege.

C The Author 2014. Published by Oxford University Press.

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And with that comes responsibility. I don’t mean this in a quid pro quo sense, but
rather in the sense that with freedom, there is no avoiding responsibility: there are
no excuses. The choices one makes (or avoids making) are relatively unconstrained.
So then the question is: what to do?
In the main, what most legal academics do can still be described as juridical pro-
jects (writing aimed at imitating the judicial practices of norm-selection and norm-
advocacy).1 Juridical projects involve efforts to articulate, elaborate, reform, improve
or otherwise change the positive law through the reasoning, interpretation and au-
thority moves conventionally practiced by lawyers and judges.
Juridical projects can have an explicit political aim. They can be tied to a social cli-
ent group. Or they can present as merely technical efforts to aid the courts. Juridical
projects have their virtues. They do, of course, involve a certain self-subjection of the
author to the norms and orientations of judicial and lawyerly discourse. But if you
think well of these norms and orientations, intellectually, politically and aesthetically,
then you have no problem. Your choices are obvious: you wish to maintain, rehearse
and re-enforce the forms.
For some people, this works well. Entire careers are built on this model. But it
won’t work well for everyone. And it can break down at any time. In my view, the
sooner the better.
Among the reasons it may not work well are the ones mentioned earlier by
Thomas Schultz.2 There is something different about the métier of judge or lawyer
on the one hand and legal academic on the other. One telling difference, I think, is
that the legal academic has no case, no client, no court date—and despite the pre-
tense, no court, really. And so the submission to the norms and orientations of judi-
cial and lawyerly discourse can begin to seem gratuitous—not merely in the sense
that these norms and orientations are self-imposed, but rather in the sense that the
self-imposition of these norms seems a bit ungrounded.
It’s true, of course, that respect for legal authority, the observance of conventional
legal reasoning norms and the worry about characteristic legal anxieties—these seem
real enough. But at the same time, it’s clear to everyone that a law review article is
not a brief, that legal scholarship is not law. Why then observe some (albeit not all)
the conventions of the brief or the opinion? The pose of being seemingly bound by

1 See generally, Pierre Schlag, ‘The Faculty Workshop’ (2012) 60 Buff L Rev 807; Pierre Schlag, ‘Spam
Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the State of the Art)’
(2007) 97 Geo L J 803; Robin West, ‘A Reply to Pierre’ (2007) 97 Geo L J 865. I say that the main work
‘still’ consists of juridical projects, but it bears noting that these are being somewhat displaced, particularly
in elite US law schools, by inter-disciplinary projects. The latter projects involve efforts to work within the
semantics and grammar of an academic disciplinary model (philosophy, economics, psychology, etc) to
make contributions to that discipline, to law, or to the negotiation of intellectual traffic between the two.
The most sophisticated efforts (from my particular perspective) are those projects that recognize and at-
tempt to address the difficulties posed by the different (not self-evidently compatible) architectures, ontol-
ogies, and objectives of the two or more disciplines. The most interesting (again from my particular
perspective) are those which use the foreign discipline to expose the ways in which law and legal thought
cognize, construct, and organize the objects they claim to rule, order, and regulate. The most common
form of inter-disciplinary project remains, however, a kind of hybrid juridical project where the foreign dis-
cipline is enlisted to do law’s work (the identity of the latter being relatively unchallenged and unexam-
ined). ibid.
2 Thomas Schultz, ‘Doing Law and Thinking about Law’ (2012) 4 JIDS 217.
 Editorial ! 237

authority (and yet not) seems at least a bit contrived—an attempt to play to an audi-
ence of judges or other legal officials in their own idioms (except not).
Why do this? There are reasons.
One good reason is that you want to have an effect on the courts or other official
legal bodies. That is not an ignoble aim. But, of course, if that is aim, the question
needs to be asked—is the project likely to be effective? My perception, and it may
well be a purely local US matter, is that legal academics tend to be, as a group, dis-
tinctly left of the courts and legal officialdom. And it strikes me as quite unlikely that
many of the prescriptions offered by legal academics to legal officialdom are likely to
be adopted.
There are other good reasons to emulate the norms and orientations of judges
and lawyers. One of them is that you think it is worthwhile to ‘model’ legal reason-
ing, argument and interpretation. But here too the same question returns and again
we encounter the gratuitousness problem. If you are modelling the practices of
judges and lawyers to reveal what they look like in an ideal state, then why not go
further and relax the conventional norms and orientations even more? Indeed, what
are the criteria delineating those authorities, norms and orientations you follow from
those you do not? And from whence do those criteria come?
These are questions to ask. Here are some others. Do you want to identify with
the courts, with the state, with a social or political client? What is your professional
self-identification? Do you think of yourself as addressing students or colleagues?
Are you trying to maintain a conversation? Produce reform? Are you simply working
out a legal problem—with publishing as an afterthought? Just what? Which of the
various aspects of law will you lend most credence to—its normative grammar?
Perhaps you have decided that this is the best way—as a persuasive or performative
matter—to have an effect? Or will you instead try to fasten onto its coercive appar-
atus? Perhaps this is what you see as most lasting or consequential about law? Its
propositional character? These are all choices. There are many more such choices to
be made.
Interestingly, these questions do not just arise in select moments of broad-ranging
theoretical reflection or existential angst. They can also arise, at any time—in the
midst of writing the next argument, the next sentence.

A C KN O WL ED G EM E NT
My thanks to Jack Schlegel for his comments.