A Young Scholar Heedlessly Plunges Into the Empirical Beyond

Well, not really. But more on that later.

They said take heed, young whippersnapper:

Lisa Faifax at the Conglomerate:

[S]hould young scholars engage in such[empirical legal] research? The answer appeared to be no, with some qualifications. There were essentially four reasons why people responded no to the query.

First, the research takes a long time, too long for people on a tenure clock.

Second, data that is not public is extremely hard to get, feeding into
the first problem and potentially undermining the saliency of the study.

Third, the finished written product is generally not that long and
possibly too scientific for traditional scholarship, making it difficult to
place the article in a traditional law review, and hence potentially
undercutting the weight given to the article during tenure review.

Fourth, for purposes of external reviews associated with tenure and
promotion, it is difficult to find outside people who can evaluate the work. And
apparently if you find someone with a social science background who understands
how to conduct empirical research, there is the possibility that she will be
overly critical if the law professor fails to appropriately defend her
methodology for the study.

(The commments thread was very good, in particular the discussion of the difficulty of gathering your own data, learning empirical methodology and models if you don't have the training on your own, and "follow your star.")

Larry Solum at Legal Theory Blog:

Very junior scholars without a solid foundation in empirical research methods should be wary--to say the least. Junior scholars ought to be exploiting their strengths, not starting over. Another important consideration is the prevalance of empirical scholarship on the senior faculty: as a rule of thumb, its better to do scholarship that is likely to be understood and valued by those who will be voting on one's tenure. But if you are trained in empirical methods and are on a faculty with tenured faculty who do empirical work, then I see no reason for juniors to shy away.

Unamed Kindly Avuncular Professor Friend:

As you probably know, there has been a lot written about trying to take on mpirical work as a young tenure track professor, and that has to be true in spades for an LLM student.

Paul Horwitz at PrawfsBlawg:

Still, there is an undercurrent behind all of this advice that troubles me. That same current runs through the advice offered to Kenji Yoshino in his book Covering, that as a junior scholar he is better off being a homosexual professional, i.e. someone who's gay but doesn't write about gay issues, than a professional homosexual. It's present in the countless anecdotes in which junior scholars of color were warned to mute their interest in race scholarship until they were safely ensconced in positions of tenure. It is also present in advice regularly offered to junior scholars to think strategically about their scholarship, although this is more of a mixed picture; some of that advice is geared toward tenure, and some of it is just about how to put together a useful scholarly agenda. Taken together, this advice doesn't just say, "Be a smart scholar"; it also, and maybe primarily, says, "Be smart about being a scholar." It says, be careful, be prudent, or you may be sorry.

This doesn't mean we junior scholars don't want and don't appreciate the very good advice we often receive. It does mean that we should be trying to shape these discussions differently. Although the real-world burden may often fall on the junior scholar, we should be aiming to shift that burden. We should be encouraging junior scholars to take chances, provided they do so in a way that strives to meet the highest standards of the academy. We should be asking, to paraphrase a comment of Jason Czarnezki at the Conglomerate discussion, how to support junior scholars' pursuit of scholarship in a useful, professional, and fearless fashion. We should distinguish between the kinds of prudence in a junior scholar that are about becoming good scholars, and those kinds that are merely about staying out of trouble. And if the point of much of the advice we get is that senior scholars sometimes apply improper standards for tenure ("Why is he writing about racial issues?" "Why is he blogging?" "What the hell is this empirical stuff?"), our primary focus should be on reforming that sector of the academy rather than placing the burden of prudence on the junior scholar.

Of course, this is all a bit of a non-debate for me. I'm not an empirical legal scholar, and the article I'm writing is sooooo not ELS. I do have some empirical training doing demographic research, and have thought seriously about going to political science graduate school. (I chose to get an LLM instead). But for this particular article, I'm not doing my own surveys, collecting my own data, or performing my own regression analysis. I'm doing what other legal scholars have been doing for decades: relying on publicly available data (such as census figures) and using other people's original studies (for example sociologists and ILR experts) to bolster my arguments. Those who can't do--well, they just don't.

But my work does utilize empirical data to support various arguments about treatment discrimination or the disparate racial effects produced by the organizational structure. I am reasonably confident in my ability to interpret data (thank goodness I am one of those law students who took statistics) as well as the large grain of salt with which I read any empirical study (always look at the size of the N, p-values, what variables were controlled for/included in multivariate analysis, framing of the question, etc.). But it is somewhat scary, and no, not in a good way, to embark on slightly "interdisciplinary" work. "Sociology? What's up with that?" you might ask. Yet I wonder what else I would be writing on. Would I write a "theory" piece given my background and training in Critical Race Theory? I think I've already discussed sufficiently why I'm not doing that. And also, I wonder if it's a "safer" choice anyway. Who honestly thinks they can engage Chuck Lawrence, Jerry Kang, or Kimberle Crenshaw any better than they can engage a few statistics about wage disparity and promotion/tenure rates? Think of your first student note or independent study---how much did you know about anything when you wrote your first article? What about your second or third article? It's always tough for a beginner in any area of law. I will be fortunate enough to have an advisor for my master's thesis--but for this article, I'm pretty much on my own, unless I abuse the goodwill of my employment discrimination professor (or am cheeky enough to email the blogging ones).

My point is, while the debate about young scholars and ELS does not really concern me (not in the sense that I am not worried, just that I'm irrelevant), the "undercurrent" to the debate Paul Horwitz mentions does concern me (in both senses). I've written before about how this is a terrifying time in my life, not knowing where I'll live or what I'll be doing from one year to the next, not knowing whether I'll succeed or fail at my first endeavors, and just not knowing anything. And in a surprising, rare sanguine moment, I've even written about how this is a great time to be a young academic, with so much that is intellectually interesting and worth exploring before me. But in both posts there is one common thing: I don't know what's going to happen to me, I only know kind of generally the areas of law I wish to specialize in as a legal academic, and I have but a vague sense of my current path. And sometimes that's good, and sometimes that's terrifying.

A large part of me wants (and needs) to act prudently in every aspect of my "aspiring"--it won't be "ad astra per aspera" (to the stars, through hardship/endeavors/difficulties), but rather "ad tenurem per aspera" (you can guess, and yes, I just made up an accusative case). I want to do really, really well in my LLM program so that I can get into the JSD program. I will work my butt off in my classes (taking the most appropriate ones for my concentration, which hopefully will mean that I'll do well, but will also mean that I won't learn "something new."), I will work closely with my advisor, I'll go to workshops, I'll solicit comments from every friendly professor. That's all well and good. But being "prudent" also means playing it a bit safe. I'll probably take all of my advisor's suggestions, even if it shifts the direction or tenor of my originally conceived project. I wonder if it will remain focused on federal and state initiatives on hate crimes and anti-discrimination law, or become something entirely different. Anything can happen. Again, that's a wonderful, but terrifying thing. I'm at a stage in my career where I have no specialization, no niche, and yes, no direction. I have definite ideas about what I want to do--but no corpus of work behind me to say "I am a/n _______ scholar." So any prodding by a senior academic and I just might scoot off in that direction. Right now, I'm just stumbling along, and not even on my own two feet. But one day I'll be ready to walk on my own, CV and sense of self in hand, and truly enter the academic world. This just isn't the day yet.

So a large part of acting "safe" or "prudent" is knowing your limitations while not knowing a lot more, such that any "direction" given to you becomes incorporated into your path. But sometimes, that's a good thing, and leads to other types of discovery and academic adventure. Scott Eric Kaufman, a literary scholar, wrote very movingly in favor of "stumbling," using Walter Benn Michaels' erratic path through academia as an example:

What interests me most about Michaels' intellectual development is how its contingencies have been routinized. The people he happened to encounter at the places he happened to encounter them have been transformed from arbitrary events in one man's intellectual history into a program of study 99 percent of literary scholars follow.

That "one man" bit may be overplaying it. Expand that to "one generation" and the charges stick. The moribund state of literary theory may result from the fact that each new generation of graduate students is asked to recapitulate in anthologies the seminal moments in the lives of a previous generation. Nothing intrinsic to the thought which falls under the heading of "theory" is responsible for the current state of affairs. What's responsible is that we're being asked to "experience" a previous generation's adventure. Only instead of the ideas being alive in the mouths of theirrepresentative, they sit there dead on the page. This generation isn't
allowed the freedom to stumble the way Michaels and Gallagher and Fish's was.

Good Lord. That would be disastrous. We need immediate professionalization. We have to follow the path blazed by our betters. That's insufficient. We have to do it by finding the footprints they embedded in the snow and follow them up the mountainside.

If you've read my blog for long, you'll know that I'm a highly anxious and very ambitious person who both lives for the future and in perpetual terror of it. I wish I could plan all my days. Maybe I can finally say that I will never be as financially insecure as I was growing up, that I will never have to share a mango between 3 people or a 2 bedroom apartment between 8 and that I will never go back to eating generic snack foods and parsing out only one slice of bologna per sandwich. But I can't say what I'll be doing next year--whether I'll be in a JSD program, a teaching fellowship, or a clerkship (I can pretty securely say I probably won't be on the market though). I can say, right now, the areas of law I want to research and write about. But I can't say they'll be the ones I'll be working on five or ten years from now. I can give you my thesis prospectus. But it's only a prospectus, and I have no idea whether the final product will significantly resemble it.

I only started writing this employment discrimination law article because I LOVED the class---which I took the LAST semester of my THIRD year of law school, and only because it fit in my schedule and fulfilled a requirement in my CRT concentration. (Not that I wasn't interested, but those were the reasons I chose it over "Law and the Poor.") It was one of those serendipitous things that has just changed my life forever. Even if I don't become an employment discrimination law scholar, I know that I love the subject. And my professor was one of those rare mentors (and a first year professor!) who loved his subject, taught us well, and gave me much advice and support. Professors reading this blog: never underestimate the power you have to shape the minds of your students and the direction of their lives (but don't overestimate it either). Your passion for your subject, if it clearly suffuses your teaching and writing, may become our passion too. Your encouragement means everything to those who need encouragement. I became interested in CRT by randomly taking a class on Comparative Constitutional Law during my senior year of college. That professor is another mentor of mine, but I don't know how significantly he shaped my life--however inadvertantly. And why I'm writing this particular paper? Because I randomly emailed an employment law professor mainstream media articles about workplace issues for his blog, heard about the conference, and had the chutzpah to ask to submit a paper proposal to a conference intended only for actual faculty. This article may not even be accepted, and I may not go to the conference. But I'll still write the article, and shop it around when it's done. But the randomness of taking a class third year, to the randomness of reading a blog, to the randomness of writing the blog's author--all this randomness had made me do something purposeful and productive. Sometimes, contingencies are indeed routinized.

All young academics stumble as they take their first steps. Sometimes the guidance they receive hampers their progress, constrianing them to the path immediately ahead and the most efficient route to tenure. Sometimes the guidance they receive is inadvertant and serendipitious, sending them off to new paths and avenues of discovery and knowledge, and so they continue to stumble rather than march. In either case, they stumble. But they also move forward. Either under the "wing" of another (or, more cynically, the restrictions inherent in a closed and stagnant academic system) or on their own two awkward feet, they move foward, closer to some fate.

I don't know what that fate is. On any given day, I follow my star, or someone else's suggestion. They do not necessarily point in mutually exclusive directions. Sometimes they point to the same thing. I hope that they do. On any given day, I'm my naturally anxious self eager to do what is safe and easy. To avoid things that I consider "difficult," which is also what is most interesting and worthy of exploration.

On any given day, I can be as courageous as Paul Horwitz wants me (and everyone like me) to be. On those days, I do things like email a colloquia organizer and ask him if I can submit a paper proposal to the conference that is intended only for real professors (not the aspiring ones). On those days, I take a break from something I've been studying for years and explore something I've studied for only one semester, just because I really love it. On one of those days, I wrote LLM applications during the kids' nap time, just to see if I could get in. And I did.

I don't know what will happen to me. This is still the most terrifying time in my life, and not one that I'm living through with particular gladness over the uncertainty of it all. No, it is not a "fun" adventure" for me. I like certainty. I like knowing where I'll live from year to year. I like to know what my life will be like year to year, preferably 3-4 years at a time until I find a permanent job. I'm out of the comfort zone of knowing that I'll be going to college for four years and in law school for three. I only know that today is different from yesterday, and that tomorrow will be different from today. Right now, anything is possible.

And that is both good and terrifying.