Toward a new legal scholarship

BY AARON HOUCK

These are historic days.

The establishment is coming down hard on Professors Ogletree and Tribe, seeking to punish them for their attempts at pioneering a new brand of legal scholarship.

Like so many heroes of history, their efforts are not appreciated by their contemporaries. Yet only they recognize that for far too long the progress of legal studies has been hindered by the obligation to reveal every source that has in some way contributed to a given written work. They have chosen instead to discard this burdensome method, eliminating an unnecessary transaction cost that frustrates the free exchange of ideas.

What did Professor Ogletree do wrong? By hiring research assistants to help with All Deliberate Speed he was relieving himself from the dreary, unimportant work of flipping through innumerable pages. Without that burden, his mind could freely ponder the intricacies of ideas and thoughts never before pursued. Moreover, his schedule no longer bogged down by hours of “library time,” he could travel the television and speech circuit Ñ passing knowledge to thousands of people who, let’s face it, will never get around to reading the book. Employing research assistants is no different from paying someone to clean your home or a garbage-collector to remove your trash. It’s dirty, dull work.

But Professor Tribe’s approach in God Save This Honorable Court is even more exhilarating, as he bypassed the citation system altogether. Professor Tribe was able to record his stream of consciousness while avoiding those eddies caused by footnotes that, in so many other works, confound our journey to greater understanding. His mind, uninterrupted by the requirement to cite sources, was able to race on toward new frontiers in legal understanding, enriching fields that had been left fallow.

Until now, the requirements for academic papers have kept all but the dullest thinkers from contributing to debate. Imagine the people who actually pore over books and articles, highlighting and scribbling, tracing each step forward Ñ what interesting insights can they possibly have? I have brilliant ideas all the time, but the daunting prospect of doing research and noting each of my sources quickly squashes any interest I have in fully articulating them. Thus, they never make it past the margin of my notebook. And that’s the world’s loss.

Because I also don’t want to have to play by the rules, I’m just going to speculate that at one time citations were unknown. Powerful thinkers accumulated knowledge through reading and observing their world, and then simply wrote down their thoughts. Along the way, they certainly borrowed the ideas of others, but there was no system forcing them to catalog the complex creative process that produced their work. After all, you don’t see any footnotes recognizing John Locke in the Declaration of Independence, do you?

And William Shakespeare, I think I heard somewhere, used plots from well-known stories and applied his own, beautiful language Ñ isn’t that all Professor Tribe has done? If Shakespeare had been required to acknowledge every allusion to every source, he would have given up long before he ever finished his first play, whatever it was. We would be left with lesser, albeit original, versions of Hamlet, Othello, and Macbeth.

The true culprits in these cases are those authors who selfishly keep their works out of the public domain. Their unyielding yearning for credit and recognition prevents real progress. Once we rid the academic arena of these self-promoters, people like Professor Ogletree and Professor Tribe will be able to lead a new and exciting era of intellectual inquiry.

Once again I applaud Professor Ogletree and Professor Tribe for having the courage to tear at the walls restricting free legal thought. Like them, I can imagine a world without research and footnotes, and I am excited for the day to come when that dream becomes a reality.

3L Aaron Houck is a guest columnist. We hope he’ll write again, because this column is awfully good.

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