The Empire Strikes Back: Outsiders and the Struggle over Legal Education

3: Empire Scholarship: What Are They Protecting?

Empire Scholarship:What Are They Protecting? “It Is the Best Law Review Article I Have Ever Read!” Ignatius B. Moot knew it was a stacked committee. Everyone owed the Dean a favor. Moot’s debt was big time.When that crazy feminist entrapped me on the couch and threatened harassment charges, sexual idiosyncrasies, she said, the good old Dean shut her up with a nice clerkship with one of his buddies. Now it is payback time. It was simple.The Dean needed a Black woman. It was nonnegotiable.The Provost’s word was final—get one or I cut your budget. Moot’s orders were equally direct.A unanimous Promotion andTenure recommendation for Professor Evelyn Allegory. What the hell was going on? Moot could not believe it.What should have been a cinch, a short, perfunctory meeting, was now a shouting match and so far a three-two vote against Allegory. It was that weirdo Peabody Snopes.What was he so obstinate about—he had not published a sentence in fifteen years. He would not shut up! “Don’t you get it, Moot, she writes stories. STORIES!” Snopes was in his early sixties and overweight, which added to his Ben Franklin appearance.“This is supposed to be legal scholarship and what does she do—gives us a tale about some incident at a grocery store, something about someone cutting in front of her at the checkout line.What did she call it, a soul crime! Hell, that happens to me all the time. I don’t waste time writing articles about it.” Moot knew the old goat was right, but he owed the Dean.“You don’t understand what her genre is. It’s agony experience. It’s about the gaps in the system that the oppressed fall into.Allegory uses the agony of a racial insult to flush out what has to be done. For God’s sake, Snopes, articles don’t have to be crammed full of footnotes to be scholarship.” Snopes exploded.“Don’t you ever tell me about footnotes, and never lecture me about legal scholarship, you poseur.” Now Moot remembered.Snopes was a one-article phenomenon who had published a major piece early in his career and that had been it. He was frozen in that one burst 33 3 of glory. Realizing he could never duplicate the flash of genius or, as he sometimes admitted to himself in a drunken stupor, the flash of luck, Snopes wrote nothing. It was the only way to maintain a slice of dignity. Snopes was now subdued and continued in a near-reverential tone. “My article [everyone in the room knew that he was talking aboutThe Article] was modeled after a piece by DonTurner, and, listen to me, Moot, theTurner piece is the best law review article I have ever read! “TheTurner article had something that none of you people are acquainted with, a quality that was lost in the 1970s shuffle of values. It made a statement about a legal problem. Let me explain. Most of what comes out now is either scrambled eggs—saying what is already known but mixing it into an incoherent style—or incremental, which is adding superficial and irrelevant analysis or vacuous comments to accepted wisdom.Moot,everything you publish is incremental.You spit trivial things out to pad your résumé,get cites from your buddies,and justify hiring bimbo student assistants to play couch music with you. I admit, it works; you are one of the highest paid poseurs on this faculty. “The first rule of legal scholarship is that it has to deal with something of consequence .That’s what Turner did. He went after some formidable puzzles of the black hole of antitrust. Consider the mysteries of oligopoly, Moot. How can three firms in a market get away with charging virtually the same prices? Remember when Ralph Nader raised hell about the Big Three auto makers in the fifties; he wanted the Antitrust Division to break them up. But how?The Sherman Act requires conspiracy: he could never get it through his stubborn mind that there may be one hell of a conspiracy problem. “This is the problem thatTurner discusses—what to do in a market in which rational oligopolists will settle on uniform prices without meeting in a smelly bar at midnight to conspire.They don’t need to go to a bar; if one raises prices and the others do not, the price raiser...