13 Jul International Legal Scholarship and the Lack of a Canon
Young scholars spend enormous amounts of time on the “canon,” the cases and rules that are in their casebooks. And so it is hardly surprising that many of them end up writing about the core canon–frequently with the result that their scholarship is derivative and repetitive. In many law school subjects, the core has been examined from every possible angle on multiple occasions over a period of decades; that makes it very difficult to say something new about the material that is in the casebook!
I think there’s something to this, but I wonder if Larry isn’t working from the problematic, implicit assumption that there always is a canon. That varies from field to field and discipline to discipline, and would seem to me the crucial variable, not the generational one. (Orin is right on this score to wonder whether “younger faculty are more likely than senior faculty to end up writing about materials covered in casebooks.”) Insofar as an area of law has a thick body of received wisdom, it’s going to be harder to say anything new. This really doesn’t have anything to do with teaching, although if you’re teaching a subject you are going to be more likely to be imbued with that received wisdom than if you aren’t.
But it does point to the advantages of writing in a field that is moving to the center stage after a period on the margins. In that context – very much the case with international law – there’s less to constrain creative thinking. There isn’t a canon in international law, or at least it’s a very thin one (or alternatively a thick one under impossible and obvious stress), and it means that anything goes. Teaching can’t help but be a plus in that case, because you get the raw materials without the strictures of received wisdom. Teaching IL almost begs the teacher to come up with her own organizing principle; it forces you to think from scratch. And where there’s less of a canon, it’s less likely that there are powerful individuals who have a vested interest in it and who are looking to enforce orthodoxies through appointments and tenure decisions. This also allows for more imaginative and foundational scholarship (in a way that does have generational implications).
This possibility applies on a disciplinary basis as well. Some of the most interesting writing on global affairs these days is coming out of anthropology and sociology, disciplines which had been laid to waste during the 70s and 80s. Contrast that to political science, in which well-established models are parsed and parsed some more, sometimes blinkering reality in the process. That’s not to say that there isn’t interesting stuff being written in political science, but I think it’s probably tougher as a political scientist to break loose and make a mark as a junior scholar.