How to Fix Legal Scholarmush

43 Pages Posted: 16 Jul 2019 Last revised: 23 Jul 2019

See all articles by Adam J. Kolber

Adam J. Kolber

Brooklyn Law School; NYU School of Law

Date Written: July 16, 2019

Abstract

Legal scholars often fail to distinguish descriptive claims about what the law is from normative claims about what it ought to be. The distinction couldn’t be more important, yet scholars frequently mix it up, leading them to mistake legal authority for moral authority, treat current law as a justification for itself, and generally use rhetorical strategies more appropriate for legal practice than scholarship. As a result, scholars sometimes talk past each other, generating not scholarship but scholarmush.

In recent years, legal scholarship has been criticized as too theoretical. When it comes to normative legal scholarship, however, the criticism is off the mark. We need more careful attention to theory, otherwise we’re left with what we have too much of now: claims with no solid normative grounding that amount to little more than opinions. We have no shortage of opinions, and simply producing more opinions will not make scholarship more practical.

Of course, centuries-old disputes in jurisprudence have struggled to untangle the precise relationship between law and morality, but my message is simple: Scholars must be more clear, transparent, and rigorous about which of their claims are descriptive and which are normative (and what sort of normativity is at issue). By being more precise, we can hope to stop talking past each other and develop more objective criteria for evaluating both scholarship and public policy more generally.

Keywords: jurisprudence, normative, scholarship, sentencing, courts, judges, scholars, morality, positive

Suggested Citation

Kolber, Adam Jason, How to Fix Legal Scholarmush (July 16, 2019). University of Indiana Law Journal, Forthcoming; NYU School of Law, Public Law Research Paper No. 19-26. Available at SSRN: https://ssrn.com/abstract=3420862

Adam Jason Kolber (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

NYU School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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