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LEGAL THEORY
JUDGE RICHARD POSNER ON LEGAL SCHOLARSHIP: A REVIEW ESSAY
Richard A. Posner (1980). ‘The Present Situation in Legal Scholarship,’ Yale Law Journal, Vol.
90, pp. 1113-1130.
Richard A. Posner (1987). ‘The Decline of Law as an Autonomous Discipline: 1962-1987,’
Harvard Law Review, Vol. 100, pp. 761-780.
Richard A. Posner (1993). ‘Legal Scholarship Today,’ Stanford Law Review, Vol. 45, pp. 1647-
1658.
Richard A. Posner is Chief Judge at the Court of Appeals, Seventh Circuit and a Senior
Lecturer in Law at the University of Chicago’s School of Law. Judge Posner graduated from
Harvard Law School in 1962. Judge Posner is best known for his work on the ‘economic
analysis of law.’
INTRODUCTION
Judge Richard Posner has published a wide-range of articles in American law
reviews and law journals on the economic analysis of law, the American judiciary,
law and literature, and on American legal scholarship. This review essay is an
attempt to summarize his three papers on the state of legal scholarship in U. S. law
schools. These three papers were published in 1980, 1987, and 1993 in leading
American law journals from the law schools at Yale, Harvard, and Stanford; they
remain relevant to what is happening in U. S. law schools even now. Furthermore,
Judge Posner’s description of the state of legal scholarship in U.S. law schools is also
important from the point of view of legal history and the history of legal education.
That is because Judge Posner was himself an important player in the rise of
interdisciplinary studies in American law schools that he is keen to make sense of
and situate in these papers. What these three papers delineate then is the transition

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in legal scholarship in U.S. law schools from the ‘formalist’ approaches in which
Judge Posner was himself trained at the Harvard Law School to the forms of
interdisciplinary scholarship that constitutes the better part of legal academia today.
I will review these three papers sequentially in order to describe the three phases of
legal scholarship that Judge Posner is preoccupied with. There is however some
amount of overlap and repetition in the content of these three papers which I will try
to minimize for the reader in this review essay.
THE SITUATION IN 1980
When Judge Posner made his first foray in describing the state of legal scholarship in
1980, his main concern was to describe a typology of legal scholarship with his
readers. The three types of legal scholarship that he had in mind were ‘legal
doctrine, positive analysis, and normative analysis.’ The purpose of studying legal
doctrine was to clarify what in fact constituted the structure and function of law
from an internal perspective. Positive analysis was an attempt to find out what the
law was and normative analysis was the attempt to posit what the law ought to be.
The difference between the positive and normative analysis of law is represented by
the ‘is-ought’ distinction that will be familiar to students of legal philosophy. Judge
Posner’s main preoccupation in 1980 was to come to terms with the fact that
doctrinal scholarship was under threat in law schools, but the situation was not
extremely favourable for positive and normative forms of analysis either. Let me first
describe the differences between these three forms of scholarship – according to
Judge Posner - before sharing with the reader how the give-and-take between these
areas of legal scholarship can be improved in a knowledge-sharing agreement that is
based on ‘mutual respect’ in law schools.
DOCTRINAL ANALYSIS IN LAW
Judge Richard Posner defines doctrinal analysis as that which ‘involves the careful
reading and comparison of appellate opinions with a view to identifying
ambiguities, exposing inconsistencies among cases and lines of cases, developing
distinctions, reconciling holdings, and otherwise exercising the characteristic skills of
legal analysis.’ In other words, the function of this definition of doctrinal analysis is

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to define the scope of the activity and the forms of legal scholarship that it is
associated with. Judge Posner sees this model of legal analysis as mainly associated
with the Harvard Law School. It is formal in its orientation, and relies on the case
method as first envisaged by Dean Christopher Columbus Langdell in 1870.
Judge Posner’s point is not that all law schools have gone beyond this method; not at
all. If they do, they will cease to be law schools and become departments of legal
studies. Judge Posner’s point is that the formal method is an internal approach to the
study of law; it has to be supplemented by external approaches as well. But this is easier
said than done if by supplementing we mean that the entire law faculty share the
intellectual effort involved in doing so. The problem really is that the values
involved in these internal and external dimensions are not always compatible. That
is because it involves every single aspect of legal education from the recruitment of
faculty and students; the structure of the curriculum; the definition of legal research;
tenuring decisions; the relationship between theory and practice; the relationship
between law faculty and public service; and the ways in which law faculty and the
federal judiciary relate to each other’s work. Judge Posner then gives examples of
doctrinal analysis; he mentions the work of Austin Scott on trusts, Warren Seavey on
torts, Thomas Powell on the commerce clause, Hart and Wechsler on the federal
judiciary, and Phillip Areeda on antitrust. What all these law professors have in
common is the fact that they define legal analysis as an ‘autonomous’ activity. What
does this really mean?
SUPPLEMENTING THE LAW
All that it really means is that in order to teach or do research in these areas of the
law it is not necessary to go outside these areas. These law professors take pride in

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the legal analysis of the law as opposed to the economic, political, or literary analysis
of the law. For them, the law is both necessary and sufficient. Judge Posner however
took the position that while doctrinal analysis is necessary, it is not sufficient. It has
to be supplemented with interdisciplinary approaches in which the ‘object of
explanation’ is the law, but the ‘subject of explanation’ is a discipline like economics.
That is what the economic analysis of law means. There is something in the law that
is not obvious or demands an explanation. The object of explanation could be crime,
insurance, negligence, torts, or trusts. The internal structure of these concepts and
the forms of legal reasoning that were developed in the attempt to resolve
quandaries in the case law of these areas was what had to be explained by the legal
analyst from an external perspective. While lawyers ‘know the law’ that govern
these areas, they may not really know the ‘significance’ of what they are doing when
they attempt to resolve conflicts in these areas of the law. An analogy from literary
criticism will make this phenomenon easier to understand. The common reader -
while reading a literary text - is preoccupied with what it ‘means.’ The literary critic
however who deploys the latest tools of linguistics or psychoanalysis can also
explain what the text ‘signifies.’ Once he does so, it appears as though the common
reader was missing out on something that should have been obvious, but had not
been able to identify in his interpretation because he lacked formal training in
literary criticism. The economic analysis of law usually has this effect. Even lawyers who
are not too well-versed in economics begin to wonder how they were able to cope
before they were told the difference between a straight-forward legal analysis and
the economic analysis of any given legal concept. The invocation of economics as a
tool of explanation serves then as a form of ‘scientific utilitarianism.’ It helps the
practicing lawyer understand for the first time how his concepts are embedded in
economic, political, or even philosophical theories with which he may not have been
fully acquainted.
CLARIFICATION OF LEGAL DOCTRINE
Another important aspect of doctrinal analysis is that it partakes of both what the
law ‘is’ and what it ‘ought’ to be – i.e. of the positive and the normative. Any attempt at

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legal reform necessarily involves understanding the difference between these two
categories of legal analysis. What students learn in the core curriculum of a law
school in the first year is known as doctrinal analysis. They also learn how to ‘find
the law’ relevant to resolving any given conflict or dispute by searching through
statutes or the case law of a given area. Law faculty who teach doctrinal analysis,
and who write or use treatises, are basically experts at the ‘clarification of doctrine’
because they can discern patterns that are not obvious to a newcomer. Their main
preoccupation is with the synthesis of the case law in any given area for use by lawyers
and judges. In the course of doing so, they might become synonymous with the area
like, say, Wigmore on evidence. Though there is no area of the law as useful as
doctrinal analysis for practitioners, faculty who use this approach are subject to a
‘disparity of income’ compared to practitioners. This is a difficult situation for them
to be in because unlike the interdisciplinary types, these faculty members actually
know how to practice law and probably feel bad that they are not doing so. These
faculty members concentrate on teaching rather than research and their levels of
research productivity suffers as a consequence.
POSITIVE AND NORMATIVE APPROACHES
Law faculty who use interdisciplinary methods however fall into two types of legal
analysis: they can pursue either positive forms of analysis or normative forms of
analysis. The former are more interested in the social sciences and the latter in the
politics of legal reform.
Justice Oliver Wendell Holmes Jr., for instance, assumes in his studies on the
common law that a historical approach to legal analysis will reveal the ‘true

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meaning’ of a legal concept in terms of its origins and evolution. By working out the
genealogy of every term of consequence, the lawyer or the law professor will be able
to trace the base passions that are being sublimated into higher forms in the history
of the common law. That is how Justice Holmes taught us to differentiate between
‘internal’ and ‘external’ forms of liability. The economic analysis of law is affected by
the methodological precedent of Justice Holmes’ analysis of the common law. Judge
Posner also differentiates between the positive and normative approaches to legal
analysis within law and economics. Judge Posner identifies himself as working with
a positive model and Judge Guido Calabresi’s economic analysis of torts - when he
was teaching law at Yale - as an instance of normative analysis.
The main difference between these two approaches is that positive analysis – not
unlike doctrinal analysis - works with rules whereas normative analysis tries to do
away with rules since it is preoccupied with how the law ought to be. Furthermore,
positive analysis is interested in asking whether a rule – when it exists – makes sense
within a model of economic efficiency. In fact, this is the first thing that a student learns
in a law and economics seminar in an American law school.
DOCTRINAL ANALYSIS AND THE SOCIAL SCIENTISTS
The basic questions in positive analysis are these: How did the common law survive
for so long? And, furthermore, how can a theory of economic efficiency help us to make
sense of the common law? In addition to law and economics, interdisciplinary
approaches can also use methods from the ‘law and society’ movement and from
studies in legal history. These areas however have not been as successful as law and
economics because they mainly try to provide contexts for the study of law without
being intrinsic to legal analysis. They constitute research ‘about’ the law rather

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research ‘in’ law. That is why they have not been able to penetrate the core
curriculum which is still dependent on doctrinal analysis.
Judge Posner also explains the rivalries between those doing doctrinal work and
those who do the social sciences because they do not share the same values. Those who
do doctrinal analysis do not recognize social scientists as lawyers; social scientists
however cannot come to terms with the fact that anybody would even want to be a
lawyer. Judge Posner also considers the work done by those who belong to the area
of legal philosophy. This has not been a successful area in law schools because of the
lack of career outlets for those who do this kind of work outside departments of
philosophy. It is often not clear whether legal philosophy should even be done in a
law school at all. Judge Posner also pulls up the Marxists because they seem to
believe that anybody who is not a Marxist is an acolyte of the capitalist system as
evidenced by their attacks on Laurence H. Tribe of the Harvard Law School. The
main contention that Marxists have against political and legal forms of liberalism is
that it seeks to reform the capitalist system from within rather than openly pursue
revolution.
JUDGE POSNER’S CONCLUSIONS IN 1980
Judge Posner concludes his 1980 paper with some modest proposals for the reform
of legal education. These proposals include: the need to raise salaries for doctrinal
scholars who still constitute the core curriculum (and thereby lure them away from
law firms); finding adequate room for doctrinal scholarship in an age of

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interdisciplinarity; encouraging research on the legal system (since attempts at legal
reform often fail because reformers do not understand the structure of the system as
a whole); and increase the number of law journals edited by faculty and
interdisciplinary academic programs to help social scientists participate in the
activities of law schools.
THE SITUATION IN 1987
Judge Richard Posner made a second foray at assessing the situation that
characterized legal scholarship in the United States in 1987 in a paper that he wrote
to commemorate the 100th anniversary of the Harvard Law Review. This gave him a
chance to describe the changes that happened in the world of law schools and legal
scholarship starting in 1962 when he graduated from the Harvard Law School. In
this paper, Posner considers why the law should have had an autonomous existence
for so long and why is it that there was a decline in these levels of autonomy. The
reason for the argument in support of the autonomous conception of the law was
related to the rivalry between the Kings of England and their Judges in legal matters.
As Sir Edward Coke made it plain, this was a conflict between ‘natural reason’ and
‘artificial reason.’ What did this mean? The Kings of England felt that they could
function as Judges themselves if required because they too could partake of ‘reason.’
In other words, they were as intelligent to settle claims as the learned Judges. But Sir
Edward Coke’s point was that while the Kings of England might be intelligent, they
were not learned in the laws of England and therefore ‘natural reason’ was not
enough to adjudicate. What was needed was more akin to ‘artificial reason and
judgement of law’; hence the autonomy of the law, the legal profession, and the

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forms of doctrinal analysis from an internal perspective that could only be known to
those formally trained in the ways of the law.
‘ARTIFICIAL REASON’ AT HARVARD LAW SCHOOL
What Judge Posner does then is to connect this approach to the law – i.e. ‘artificial
reason’ – with what Dean Christopher Columbus Langdell was to term the ‘case
method’ at the Harvard Law School.
For Dean Langdell what was required to train lawyers was not natural reason but
artificial reason. In order to acquire this artificial reason, law students were asked to
analyse and compare cases compiled thematically in case books on different areas of
the law. Law faculty were also trained to use the Socratic method of systematic
questioning to facilitate the discovery of the basic principles of the law that could be
inferred by reading a large number of cases written by appellate judges. This, as
Posner points out, was a form of Platonism. Justice Holmes’ critique of this method
of studying the law was an attempt to point out that the law is not as logical as this
method presupposed; it was more important in his contention to encounter the
experiential aspects of law and legal practice in the context of the common law. That
is why Justice Holmes believed that there would be room sooner or later for areas
like economics and statistics in legal studies. But since the social scientists of the
Holmesian era were not interested in the law, his critique did not undermine the
autonomy of the law at once. However the legal careers of leading lawyers and
judges trained at the Harvard Law School gave good reason to believe that a broad
education was needed to supplement the narrow approach to the legal pilpul that
constituted the case method. It was increasingly felt that the ‘keys to understanding
law were held by disciplines other than the law.’

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LAW AS A FORM OF ‘SOCIAL ENGINEERING’
When Judge Posner was a student at Harvard, he felt the situation was a little better
than in Langdell’s day because it had become obvious that knowledge of society was
needed to ‘understand law, criticize it, and improve it.’ In addition, it was also
necessary to acquire some knowledge of ethics, values, and the economy. The
success of the Langdell model for a number of years was related to the fact that
lawyers knew how to reform the system when required. This was the situation in
American law till 1965. No other discipline was in a position to provide the insights
necessary to supplement this model of legal education. Even though the importance
of economics was understood, it did not appear that it would be in a position to
serve as a tool of legal analysis for many more years to come. The only economists
who were doing the economics of law were Ronald Coase, Guido Calabresi, and
Henry Simons, but this was not enough to constitute a law and economics
movement. Another reason for a lack of interest in economics and politics was the
fact that there was consensus between political parties and little by way of
ideological difference during this period. So it was possible for lawyers to
concentrate on the doctrinal analysis of the law. The terms that Judge Posner used to
describe the intellectual scene in the United States in those years were ‘secular,
humanistic, patriotic, and centrist.’ The law was therefore thought to be a form of
‘social engineering’ rather than a form of politics. Legal disagreements were no more
than like disagreements between civil engineers on the levels of wind resistance
while designing a bridge. Likewise, lawyers could get on with the building and
reform of the legal system as they saw fit. Both the study of law and the practice of
law were considered to be autonomous activities and thought to be ideologically
neutral.
THE RISE OF CONSTIUTIONAL LAW
The decline in the levels of autonomy associated with the law is related to the revival
of ideology during the period that Judge Posner is describing (1962-1987). This was
because of the rise of ‘constitutionalism’ as a force for change in American society
and the lead that was taken by the Warren and Burger Courts on a number of

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politically sensitive issues like ‘abortion, (and other matters involving sex),
reapportionment, political patronage, and school and prison conditions.’ There was
also an expansion in the scope of government activities in tandem with the new-
found activism of the courts. A number of other areas were also subject to litigation
like ‘poverty, campaign financing, environmental protection, and the plight of
disabled people.’ These events in society were coeval with the development of new
theories in areas like economics, sociology, and philosophy that sought to explain
these phenomena. The study of economics subsumed sociology at the University of
Chicago when it went from explaining market phenomena to non-market
phenomena. Economics was being used to explain torts, family law, property law,
free speech, and even the first amendment. Before long, it had seeped into the entire
law school curriculum. Judge Posner explains that in 1987, the economic approach
was already becoming the dominant form of explanation in areas like ‘antitrust,
commercial law (including bankruptcy), corporations and securities regulation,
regulated industries, and taxation.’ There was also a revival in political philosophy
at Harvard relating to the work of John Rawls on distributive justice. But Rawls’s
influence was to take up a number of other areas like abortion and women’s rights as
well. It was just a matter of asking whether a given social issue could be rethought
under the ‘veil of ignorance’ argument and thinking through the implications of that
in the context of liberal jurisprudence by both law professors and judges.
INTERDISCIPLINARY APPROACHES TO LAW
Judge Posner also mentions the role played by public choice theory, game theory,
statistics, legal history, and literary studies. How can so many approaches to legal
analysis be contained within the model of doctrinal analysis? That then must have
been the problem for law school deans at Harvard and competing law schools. It
appeared then that lawyers could no longer claim that only they understood the law.
Insights could come from just about any discipline into law schools and redefine the
acceptable forms of legal reasoning going forward. The acceleration of this process of
change is related to the fact that a number of attempts at legal reform carried out by
lawyers without the help of social scientists miscarried prompting them to rethink

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what actually is involved in legal reform. The examples given by Judge Posner
include difficulties in litigation pertaining to the Federal Rules of Civil Procedure,
the Administrative Procedure Act, increase in litigation under the Bankruptcy Code,
the damage caused to liability insurance by the expansion in tort liability, etc.
I do not include the complete list of examples that Judge Posner cites for lack of
space, but the point should be clear to the reader. The exponential increase in litigation
has made it necessary to expand the legal system itself like the building of new roads
and highways to decongest cities. Overcrowded dockets in all American courts have
also made it increasingly difficult for litigants to get a hearing. The conventional
approach to legal education was simply not able to come to terms with such
phenomena that had to be explained from economic, political, and social points of
view.
LEGAL THEORY & STATUTORY INTERPRETATION
Legal theorists also found that they did not have anything more to say on the
autonomous approach to law. Jurists like Justice Holmes, Justice Louis Brandeis,
Henry Hart, Albert Sacks, and Edward Levi ‘had completed the edifice of what
might be termed classical legal thought.’ It was necessary to innovate if legal theory
was to be able to address the needs of society. The innovators in legal theory
included Frank Michaelman on just compensation and property law and Guido
Calabresi in torts. The gap between Barton Leach and Frank Michaelman in property
law and Warren Seavey and Guido Calabresi is proof – if proof is needed - on how
economics was applied to rethink traditional models of the law in these areas. Legal
theorists who did not understand the economic analysis of the law could not occupy

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the ‘cutting-edge’ in legal research anymore. The last of the reasons that Judge
Posner describes for the decline in the autonomy of the law relates to the increasing
importance accorded to constitutional law and statutory law in lieu of the traditional
preoccupation with the common law. The interpretation of statutes has become
much more problematic than the autonomy model makes allowance for after the
work of jurists like H. M. Hart, A. Sacks, and economists like Kenneth Arrow. Other
factors include the rise of social choice theory, ideological differences between
political parties, interest groups, deregulation, critiques of statutory construction,
deconstructionist approaches to interpretation, and the loss of belief in objective
meaning in textual interpretation.
Judge Posner illustrates some of these problems of interpretation especially in cases
involving aging statutes with an analysis of Leo Sheep Co. v United States (1979).
JUDGE POSNER’S CONCLUSIONS IN 1987
Judge Posner’s conclusion is not that doctrinal analysis should disappear or is not of
importance anymore, but rather that he is forced to think through what is happening
because as a judge he is ‘both a consumer and a producer of doctrinal analysis.’ The
importance of interdisciplinary approaches is that it has made the law less
‘parochial’ than it used to be when he was a student. So, while doctrinal analysis will
still remain the core element of legal education for law students, it will cease to be as
autonomous as it used to be. There will be an increase and not a decrease in the
number of social scientists who will get involved in legal analysis. This will have
important implications for how judges write their opinions and how lawyers write
their briefs since ‘the autonomous elements in legal reasoning are replaced by a

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more candid engagement with the realistic premises of decision.’ Judge Posner also
envisages an increase in the role that will be played by those working in the area of
legal theory. And, finally, given that this paper is being written to commemorate the
100th anniversary of the Harvard Law Review, Judge Posner predicts that there will be
an increase in law reviews edited by faculty rather than an increase in reviews and
journals edited by law students. That is because it is difficult for law students to
evaluate the submissions made in interdisciplinary approaches to the law.
THE SITUATION IN 1993
The third of the papers by Judge Richard Posner was written for a symposium on
Civic and Legal Education that was organized by the Stanford Law Review in 1993.
Judge Posner starts by comparing disciplines that are growing with those that are
not growing in American universities. The situation in law schools is that the
Socratic method is not doing as well as it should because – as Posner puts it – by the
change in the demographic composition of students through affirmative action
programs. The case method has always been a source of fear for those who are afraid
to speak up whether or not they belong to minority communities. The reason for
that, as readers of The Paper Chase know, is the ‘public humiliation’ that students
would be subject to by Professor Kingsfield in his attempts to get them to think like
lawyers at the Harvard Law School. Though Judge Posner does not mention
Professor Kingsfield in particular, all law students know the feeling. Judge Posner’s
focus is on the last three decades and the changes that have characterized the
American law school.
UTILITY & TRUTH
The first thing that Judge Posner notices is that for long, law professors were
preoccupied with Utility rather than with the Truth. In other words, they were in the
business of training the next generation of lawyers rather than trying to become
research-oriented social scientists. That has however started to change. In the utility
approach, law professors were mainly preoccupied with writing ‘law review articles,
treatises, model laws, and restatements of the law,’ which would guide the legal
profession. They thought of themselves as lawyers rather than as academics even if

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they were not practising law though they might have done a stint at the bar before
becoming teachers. The main advantage of identifying with the world of practice
was that it gave law school faculty a lot of strength. It provided them with ‘anchor,
balance, and goal.’ Furthermore, the traditional approach to legal education with a
focus on autonomy made it possible to get a feel for ‘convention and stability’ in the
law. This model however presupposed ‘broad political congruence between the
academy, on the one hand, and the judiciary, the bar, and the society as a whole, on
the other.’ Since all legal doctrines have their origins in politics, it is important that
there should be a symbiotic relationship between the faculty and the profession. The
analogy that Judge Posner invokes to explain the relationship between the judge and
the law professor is that of an author and a literary critic. In other words, it was not
always as smooth as it should be.
There was necessarily something adversarial going on because law professors are
always trying to improve the judges’s opinions like literary critics are trying to
improve the texts that they critique. The law professor is anxious to prove that any
judicial decision is not unmediated or a logical outgrowth of a statute or precedent
but is somehow inadequate. In other words, law professors like to ‘unmask’ the
judicial decision and subject it to criticism. It is not uncommon for law professors to
want to be members of the appellate judiciary themselves even when they attack the
judiciary in class. Nonetheless, despite these limitations, the doctrinal approaches to
law ensured that there was some give-and-take between law schools and the
judiciary. It produced the kind of legal treatises that judges were willing to consume
while writing their opinions. The heyday of doctrinal scholarship in American law,
according to Judge Posner, was during the period, 1870-1965. The decline in

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doctrinal scholarship is related to the rise of economics which managed to affect all
areas of the curriculum from ‘adoption to zoning.’
DIVERSITY IN LEGAL SCHOLARSHIP
In addition to economics, Judge Posner also points out that ‘finance theory, public
choice, and game theory’ are becoming important in legal analysis. Amongst the
areas in the humanities; literary theory, hermeneutics, political philosophy, and
moral philosophy have made headway into the law school curriculum. In Judge
Posner’s formulation, ‘the revitalization of moral and political philosophy has
seemed to have major implications for jurisprudence, constitutional interpretation,
and other topics of interest to law professors.’ Feminism has also fought for a place
in the law school curriculum. Amongst the more prominent of the feminists, Judge
Posner mentions Andrea Dworkin, Catharine MacKinnon, Carol Gilligan, and
Martha Nussbaum. Feminist jurisprudence has made it necessary to rethink a
number of patriarchal assumptions in the law in areas like gender, sex
discrimination, and in some aspects of family law. Judge Posner also mentions
interdisciplinary approaches based in legal humanities like critical race theory, law
and literature, legal anthropology, and legal sociology. Give this level of ‘diversity’
in American law schools; it is not going to be easy for law school deans to restructure
the curriculum in order to find the proper balance between core and elective courses.
This difficult situation is compounded by the ideological split between law
professors moving to the left while the judiciary is moving to the right. Not all these
areas of interdisciplinary scholarship will appeal to judges when it comes to
deciding cases. That only exacerbates the split between the faculty and the judiciary
even more. There are also important implications for the acceptable forms of legal
reasoning in law schools and the legal system as a whole because ‘the increased
political diversity has shattered the consensus upon which a confident sense of the
law’s objectivity rested.’
JUDGE POSNER’S CONCLUSION IN 1993
Another problem that Judge Posner raises relates to the fact there is a huge increase
in the number of lawyers. It appears that ‘systemic’ questions are becoming more

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important than ‘doctrinal’ questions to which; in any case, there are no easy answers
given that the basic assumptions of legal doctrine have been repeatedly challenged
by different schools of thought. The limitations of doctrinal scholarship are also
being exposed because unlike students of literature, philosophy, or politics who are
exposed to some of the best minds who have ever written on the topics that they
study, the law professor is immersed in judicial opinions written by law clerks rather
than by great judges as used to be the case before the increase in levels of litigation
have made it difficult for judges to write in the way that they used to. We now have
a situation where legal scholars are writing for each other rather for members of the
legal profession and the judiciary. Furthermore, the lack of objective standards in
evaluating academic research is leading to a situation where unlike in the social
sciences, too many models of critical evaluation are invoked in law schools.
While doctrinal scholarship will not go away, the turn to interdisciplinary
scholarship will make it possible for law school faculty, Judge Posner concludes, to
‘become respected participants in the scholarly discourse of fields outside the law.’
SHIVA KUMAR SRINIVASAN