1. Twining, W Blackstone's Tower, The English Law School (London: Sweet & Maxwell, 1994) p 153.Google Scholar

2. Rubin has written many articles on the jurisprudence of legal scholarship. He defined standard legal scholarship in Rubin, E The practice and discourse of legal scholarship’ (1988) 86 Mich LR 1835 at 1847–1853CrossRefGoogle Scholar. He analysed the ingredients of standard legal scholarship in E Rubin ‘Law and the methodology of Law’ (1997) Wisc LR 521.

3. Chesterman, M and Weisbrot, D Legal scholarship in Australia’ (1987) 50 MLR 709 at 709.CrossRefGoogle Scholar

4. This position adopts a mediative or constitutive epistemological view which was most influentially advanced in studies of the sociology of science by Kuhn: Kuhn, T The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1962, 1970)Google Scholar; Kuhn, T The Essential Tension: Selected Studies in Scientific Tradition and Change (Chicago: Chicago University Press, 1977).Google Scholar

5. To say this is not to ignore the significant influence that funding models adopted by university governance bodies have on the nature and direction of research. However, as argued more forcefully later in this paper, research audits do not completely stifle the ability of scholars to govern the discipline.

6. This is a common phrase used in studies of communication patterns in the sciences to describe the communicative relations within an institution.

7. Whiteley's study was limited to scientists.

8. Whiteley, R The Intellectual and Social Organisation of the Sciences (Oxford: Clarendon Press, 1984) p 219.Google Scholar

9. Ibid.

10. Ibid.

11. This point is usually made with reference to William Blackstone's inaugural lecture as Vinerian Professor at Oxford in 1758 and the inaugural lecture of Blackstone's successor, Albert Dicey, entitled Can English Law be Taught at the Universities? See Dunbar, N Common sense in the law school’ (19581963) 1 U Tas LR 540 at 543.Google Scholar

12. Ibid.

13. Fry, T Review of J Hannan The Principles of Income Taxation ’ (1948) 1 University of Queensland Law Journal 70 at 71.Google Scholar

14. See, eg, Becher, T and Trowler, P Academic Tribes and Territories: Intellectual Enquiry and the Cultures of Disciplines (Milton Keynes: The Society for Research into Higher Education and Open University Press, 2nd edn, 2001)Google Scholar; Pool, I Technology without Boundaries: On Telecommunications in a Global Age (Cambridge MA: Harvard University Press, 1990)CrossRefGoogle Scholar; Fuchs, S The Professional Quest for Truth: A Social Theory of Science and Knowledge (Albany NY: SUNY Press, 1992).Google Scholar

15. This is taken from the many definitions of a ‘discipline’ collated by Vick: Vick, D ‘Interdisciplinarity and the discipline of law’ (2004) 31 JL & Soc 163 at 166 and 168 (references omitted).Google Scholar

16. Hyland, K Disciplinary Discourses, Social Interactions in Academic Writing (Essex: Pearson Education, 2000) p 135.Google Scholar

17. Ibid.

18. Posner, R The Problems of Jurisprudence (Cambridge MA: Harvard University Press, 1990) p 221.Google Scholar

19. It is described as the second period of American legal scholarship, the ‘classical period’ or ‘the period of formalism’– a time when the unearthing of fundamental legal principles was regarded as a scientific endeavor worthy of a place within the university. The scholar's aim was to unearth these central principles from the mass of cases handed down by the US courts and offer them up for study and use by the profession. It is associated with the end of the civil war and the writing of the Dean of Harvard Law School, Christopher Columbus Langdell and his contemporaries such as Samuel Williston, William Keener and John Chipman Gray. See Mensch, E ‘The history of mainstream legal thought’ in Kairys, D (ed) The Politics of Law (New York: Basic Books, 3rd edn, 1998) pp 28–32;Google Scholar Duxbury, N Patterns of American Jurisprudence (Oxford: Oxford University Press, 1995) pp 9 and 14–15.Google Scholar

20. In England it is associated with the textbook tradition and grand treatise. It is aligned with scholars such as Dicey, Bryce, Pollock and Salmond, who wrote the major textbooks and treatises of the time. Duxbury's study of the early case notes in the Law Quarterly Review, written predominantly by Pollock, suggests that these early scholars developed strategies to transform law into an academic discipline: ‘[w]ithin and throughout these case notes we find basic black-letter law – particularly the routine work of courts – turned into something deserving of juristic inquiry’: Duxbury, N ‘When we were young: notes in the Law Quarterly Review, 1885–1925’ (2000) 116 LQR 474 at 488.Google ScholarThese ideas are developed further in Duxbury, N Frederick Pollock and the English Juristic Tradition (New York: Oxford University Press, 2004).CrossRefGoogle Scholar

21. See James, N A brief history of critique in Australian legal education’ (2000) 24 MULR 965 at 966–967.Google Scholar

22. Chase provides an account of several scholars who took issue with Langdell's conception of law in the late 1800s and early 1900s and develops a thesis on how and why they were marginalised. See Chase, W The American Law School and the Rise of Administrative Government (Wisconsin: University of Wisconsin Press, 1982).Google Scholar

23. See Schlag's provocative critique of what he perceives to be the narrow mindset of legal scholars and their fixation with judges in his collection of essays: Schlag, P Laying Down the Law; Mysticism, Fetishism and the American Legal Mind (New York: New York University Press, 1996).Google ScholarSee also the lingering formalist traits of legal scholarship discussed in Hutchinson, A The role of judges in legal theory and the role of legal theorists in judging (or ‘don't let the bastaraches grind you down’) (2001) 39(3) Alta LR 657 at 665.Google Scholar

24. These traits are best identified and explained in Rubin's work. See Rubin, above n 2.

25. See Vick, above n 15, at 178.

26. ‘Black letter’ refers to the ‘black or Gothic type which was often used in formal statements of principles or rules at the start of a section, typically followed by commentary’: Twining, above n 1, p 151, n 61.

27. Legal history and jurisprudence (in some forms) are exceptions to this.

28. Specific examples are given in the final part of this paper.

29. A similar point was made by Svantesson, D International ranking of law journals – can it be done and at what cost?’ (2009) 29 LS 678 at 685.Google ScholarHe raises the issue of bias.

30. Cownie, F The death of the textbook tradition’ (2006) 3(1) European Journal of Legal Education 75 at 76.CrossRefGoogle Scholar

31. The RAE panel provided that ‘[s]tudent textbooks and books written for legal or other professionals will be regarded as research output, provided that they incorporate significant scholarly research (as defined by the RAE) and make a contribution to knowledge and understanding of the subject’ (emphasis added).

32. Cownie, F Legal Academics (Oxford: Hart Publishing, 2004) p 135.Google ScholarSee also Campbell, K et al Journal publishing, journal reputation, and the United Kingdom's Research Assessment Exercise’ (1999) 26 JLS 470 at 476.CrossRefGoogle Scholar

33. Cownie, ibid, p 136.

34. See Twining, W Punching our weight? Legal scholarship and public understanding’ (2009) 29 LS 519 at 529.Google Scholar

35. Academy, British Research Excellence Framework; the British Academy's Contribution to HEFCE's Consultation (London: British Academy, 2009) pp 3–4.Google Scholar

36. Ibid, p 5.

37. First the Department of Education, Science and Training (DEST) reduced the categorisation of publications to limit the number of reportable categories so that ‘articles in “professional” journals and loose leaf services, chapters in “The Laws of Australia” and similar publications are now regarded as unacceptable for classification as research within the DEST context’; see D Barker ‘The character and recognition of legal research in Australia’ (2004) Penn St International Law Review 442 at 442–443.

38. Young, Justice Law schools and the profession’ (2009) 83 ALJ 139.Google Scholar

39. Hyland, above n 16, pp 104 and 107.

40. Cownie, above n 30, at 78.

41. Hyland, above n 16, pp 104 and 106.

42. Ibid, p 104 (emphasis added).

43. A review of early book reviews in law journals clearly evidences this fact.

44. Sugarman, D Beyond ignorance and complacency: Robert Stevens' journey through lawyers and the courts’ (2009) 16 International Journal of the Legal Profession 7 at 8,CrossRefGoogle Scholarciting his earlier work ‘Legal theory, the common law mind and the making of the textbook tradition’ in Twining, W (ed) Legal Theory and Common Law (Oxford: Oxford University Press, 1986) p 26 Google Scholar and also Duxbury, above n 20.

45. Ibid, pp 19–20.

46. See, eg, Chesterman and Weisbrot, above n 3, at 714.

47. See, eg, the attitudes expressed in Fleming's review of the fifteenth edition of Pollock's Law of Torts published in the Sydney Law Review: (1953) 1 SLR 282.

48. Pearce, D, Campbell, E and Harding, D Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (Canberra: Australian Government Publishing Service, 1987) (The Pearce Report).Google Scholar

49. Sugarman, D Legal theory, the common law mind and the making of the textbook tradition’ in Twining, W (ed) Legal Theory and Common Law (New York: Basil Blackwell, 1986) p 26.Google Scholar

50. Twining, above n 1, p 130.

51. Ibid, p 146.

52. Birks, P (ed) Pressing Problems in the Law, What Are Law School's For? (Oxford: Oxford University Press, 1996).Google Scholar

53. Langbein wrote ‘As for my colleagues in the national law schools in the US, I would wish for them to reacquaint themselves with the doctrinal life of the law in some of the depth that it is still studied in England’: J Langbein ‘Scholarly and professional objectives in legal education: American trends and English comparisons’ in Birks, ibid, p 7.

54. G Jones ‘Traditional legal scholarship. A personal view’ in Birks, ibid, p 12 (original emphasis).

55. Ibid.

56. Cheffins commences his discussion by saying that ‘A much-remarked upon feature of British legal literature is its “descriptive and doctrinal” orientation’: Cheffins, B ‘Using theory to study law: a company law perspective’ (1999) 58 CLJ 197 at 197.Google Scholar

57. Ibid, at 215–218.

58. Ibid, at 218–220.

59. Cownie, above n 32, p 54.

60. Ibid, p 54.

61. Ibid, p 58.

62. This characterisation has proven influential. Eg, Vick writes with reference to Cownie's work that ‘it is unlikely that most academic lawyers today would consider themselves “pure” doctrinal researchers’: Vick above n 15, at 181.

63. Keyes, M and Johnstone, R Review of legal academics: cultures and identities by Fiona Cownie’ (2005) 27 SLR 377 at 379.Google Scholar

64. Bradney, A Law as a parasitic discipline’ (1998) 25 JL & Soc 71 at 71–72.Google Scholar

65. Ibid, at 71–72.

66. Ibid, at 72–73.

67. Ibid, at 73–75, quoting from B Hepple ‘The renewal of the liberal law degree’ (1996) CLJ 470 at 485 and 481 and Thomas, P ‘Introduction’ in Thomas, P (ed) Socio-Legal Studies (Ashgate: Dartmouth, 1997) p 19.Google Scholar

68. Bradney, A Conversation, Choices and Chances: The Liberal Law School in the Twenty-First Century (Oxford: Hart Publishing, 2003) pp 123–124.Google Scholar

69. Siems, M Legal originality’ (2008) 28(1) OJLS 147.CrossRefGoogle ScholarOne feature of the English meta-scholarship is that it is often presented as an historical descriptive account of English legal scholarship. The scholar's values are largely masked in the account. While scholars such as Twining and Goodrich have acknowledged the highly valued laden nature of the exercise (with Goodrich complaining that Twining had not adequately exposed these values), the descriptive approach adopted by Siems has persisted. See Twining, above n 1, p xxii; P Goodrich ‘Of Blackstone's Tower: metaphors of distance and histories of the English law school’ in Birks, above n 52, p 60.

70. Siems, ibid, at 153.

71. Duxbury ‘When we were young’, above n 20, at 488. These ideas are developed further in Duxbury Frederick Pollock, above n 20.

72. Twining, above n 1, pp 130–141.

73. Ibid.

74. Vick, above n 15, at 179.

75. See Duxbury, N Jurists and Judges: An Essay on Influence (Oxford: Hart Publishing, 2001) pp 61–117.Google Scholar

76. Braun, A Professors and judges in Italy: it takes two to tango’ (2006) 26 OJLS 665 at 665.CrossRefGoogle Scholar

77. Ibid, at 665.

78. See Keyes, M and Johnstone, R Changing legal education: rhetoric, reality, and prospects for the future’ (2004) 26 SLR 538 at 542 and 556.Google Scholar

79. Ibid, at 555 (references omitted).

80. See, eg, Brown, W Jethro Law schools and the legal profession’ (1908) 6 Comm LR 3 at 8;Google ScholarDunbar, above n 11.

81. See, eg, the comments made in Bollinger, L The mind in the major American law school’ (1993) 91 Mich L Rev 2167.CrossRefGoogle Scholar

82. See, eg, Thornton, M ‘The law school, the market and the new knowledge economy’ (2007) 17 Legal Educ Rev 1;Google Scholar Thornton, M ‘The idea of the university and the contemporary legal academy’ (2004) 26 SLR 481;Google Scholar Thornton, M ‘Gothic horror in the legal academy’ (2005) 14 S & LS 267.Google Scholar

83. See Spigelman, Justice ‘Federal Law Review Fortieth Anniversary Dinner’ (2005) 33 FLR 1 CrossRefGoogle Scholar; Tilbury, M ‘Address, why law reviews?’ (2003) 25 SLR 21;Google Scholar Austin, Justice ‘Address: academics, practitioners and judges’ (2004) 26 SLR 462.Google Scholar

84. The Pearce Report, above n 48, p 105, quoting and adopting the views form the Michelman Committee Report.

85. Chesterman and Weisbrot, above n 3, at 710.

86. Gava, J Scholarship and community’ (1994) 16 SLR 443 at 444.Google Scholar

87. Mason, Sir Anthony Legal research its function and its importance’ in Lindell, G (ed) The Mason Papers (Sydney: Federation Press, 2007) p 350.Google ScholarPubMedThe paper was originally delivered in 1995.

88. K Warner ‘Sentencing scholarship in Australia’ (2006) CICJ 241 at 259.

89. Ibid, at 259.

90. Webber, J Legal research, the law school and the profession’ (2004) 26 SLR 565.Google Scholar

91. Ibid, at 582.

92. J Goldring's unpublished work is quoted in Barker, above n 37, at 446.

93. See Justice Kirby ‘Welcome to law reviews’[2002] MULR 1.

94. For an open criticism of the way that judicial sentiment can serve to limit the horizon of legal scholarship, see J Gava ‘Law reviews: good for judges, bad for law schools?’[2002] MULR 560.

95. See Hayne, Justice Letting justice be done without the heavens falling’ (2001) 27 Monash LR 16 at 18–19.Google Scholar

96. An exception arises from the debate between Justice Kirby and Gava, see above nn 93 and 94.

97. See, eg, K Shatwell ‘Some problems of post-war legal education’[1948] ALJ 17; D Derham ‘Legal education – university education and professional training’[1962] ALJ 209.

98. Cramton, R Demystifying legal scholarship’ (1986) 75 Geo LJ 1 at 1.Google Scholar

99. Rhode has forcefully made this point: Rhode, D Legal scholarship’ (2002) 115 Harv LR 1327 at 1327.CrossRefGoogle ScholarSeveral other scholars have quoted Rhode's work for the proposition that writing meta-scholarship is a risky practice. See, eg, Siems, above n 69, at 148.

100. See, eg, ‘Symposia: legal scholarship: it's nature and purposes’ published in (1981) 90 Yale LJ 955. For a discussion of the depth and nature of this scholarship see Bartie, S ‘The impact of legal meta- scholarship: love thy navel’ (2009) 3 GLR 727.Google Scholar

101. Edwards, Judge Harry The growing disjunction between legal education and the legal profession’ (1992) 91 Mich LR 34.CrossRefGoogle Scholar

102. Ibid, at 35 and 42–43.

103. Ibid, at 46–50.

104. Bollinger, above n 81, at 2167.

105. Ibid, at 2168.

106. Post, R ‘Legal scholarship and the practice of law’ (1992) 63 U Colo L Rev 615 at 621Google Scholar agreeing with the position taken by Schlegel, J ‘A certain narcissism; a slight unseemliness’ (1992) 63 U Colo L Rev 595 at 607.Google Scholar

107. Bell, D and Edmonds, E Students as teachers, teachers as learners’ (1993) 91 Mich LR 2025 at 2028.CrossRefGoogle Scholar

108. Ibid, at 2032.

109. Eg, Yen advises the beginning scholar to write something other than work for the profession: Yen, A Advice for the beginning legal scholar’ (1992) 38 Lloyds Law Review 95 at 97.Google Scholar

110. White, J Letter to Judge Harry Edwards’ (1993) 91 Mich LR 2177 at 2185.CrossRefGoogle Scholar

111. Landes, W and Posner, R Heavily cited articles in law’ (1996) 71 Chi-Kent L Rev 825 at 836.Google Scholar

112. Feldman, S The transformation of an academic discipline: law professors in the past and future (or Toy Story Too)’ (2004) 54 J Leg Ed 474.Google Scholar

113. Ibid, at 497.

114. Feldman writes that ‘On the academic side, an increasing number of contemporary legal scholars no longer write with the explicit or even implicit hope of influencing the direction or reform of the law, either in courts or in legislatures’: ibid, at 488–489. He cites the following scholars as evidencing this tendency: Hamburger, P Separation of Church and State (Cambridge MA: Harvard University Press, 2002)Google Scholar; Shiffrin, S Dissent, Injustice and the Meanings of America (Princeton: Princeton University Press, 1999)Google Scholar; Feldman, S Please Don't Wish Me a Merry Christmas: A Critical History of the Separation of Church and State (New York: New York University Press, 1997)Google Scholar; Compus, P ‘The obscure object of desire: hermeneutics and the autonomous legal text’ (1993) 77 Minn LR 1065 at 1094–1095;Google Scholar Fish, S ‘Dennis Martinez and the uses of theory’ (1987) 96 Yale LJ 1773;CrossRefGoogle Scholar Schlag, P ‘Normative and nowhere to to’ (1990) 43 Stan LR 167.CrossRefGoogle Scholar

115. Feldman, above n 112, at 491–492.

116. Ibid, at 496.

117. Ibid, at 491–492.

118. This is a position taken by many critical legal studies scholars.

119. Madison, M The idea of the law review: scholarship, prestige and open access’ (2006) 10 Lewis and Clark Law Review 901 at 906.Google ScholarMadison quotes Getman, J In the Company of Scholars: The Struggle for the Soul of Higher Education (Texas: University of Texas Press, 1992) p 43 Google Scholar: ‘Research.…clothes with respectability the attitudes that the academic enterprise is more important, demanding, and complex than other endeavours and that first-rate academics are different, smarter, and more creative than other people’.

120. See Fish, S There is No Such Thing as Free Speech and it's a Good Thing Too (Oxford: Oxford University Press 1994) pp 273–279;Google Scholar Bergin, T The law teacher: a man divided against himself’ (1968) 54 Va L Rev 637 at 641;CrossRefGoogle ScholarPost, above n 104.

121. See Shapiro, F ‘The most-cited law review articles’ (1985) 73 Calif L Rev 1540;CrossRefGoogle Scholar Shapiro, F ‘The most-cited law review articles revisited’ (1996) 71 Chi-Kent L Rev 751;Google Scholar Shapiro, F ‘The most cited legal scholars’ (2000) 29 JLS 409;CrossRefGoogle Scholar Shapiro, F ‘The most cited legal books’ (2000) 29 JLS 397;CrossRefGoogle Scholar Shapiro, F ‘The most cited law reviews’ (2000) 29 JLS 389;CrossRefGoogle Scholar(1996) 71 Chi-Kent L Rev 781, and discussion in Bartie, above n 99, at 730.

122. Backer, L Cata Defining, measuring and judging scholarly productivity: working toward a rigorous and flexible approach’ (2002) 52 J Leg Ed 317 at 325–326.Google Scholar

123. Two recent examples are Madison, M ‘The idea of the law review: scholarship, prestige and open access’ (2006) 10 Lewis and Clark Law Review 901 Google Scholar and Posner, Justice ‘Law reviews’ (2006) 46 WLJ 155.Google Scholar

124. This fits with Tamanaha's thesis on the instrumentalist trends in law and scholarship; see Tamanaha, B Law as a Means to an End, Threat to the Rule of Law (New York: Cambridge University Press, 2006) pp 101–118.CrossRefGoogle Scholar

125. See Symposia: exchange: empirical research and the goals of legal scholarship published in (2002) 69 U Chi L Rev 1.

126. See Edwards, Judge Harry Reflections (on law review, legal education, law practice, and my alma mater)’ (2003) 100 Mich LR 1999.CrossRefGoogle Scholar

127. Ibid, at 2002.

128. Posner, Justice Legal scholarship today’ (2002) 115 Harv LR 1314 at 1317 and 1324–1325.CrossRefGoogle Scholar

129. Goldring, J Tradition or progress in legal scholarship and legal education’ in Goldring, J, Sampford, C and Simmonds, R (eds) New Foundations in Legal Education (Sydney: Cavendish Publishing, 1998) p 27.Google ScholarFirst published as an article in 1987: [1987] WALR 216.

130. For a dialogue between scholars concerning how a book was intended to engage with the judiciary, see Bigwood, R ‘Author's response to the commentators’ (2007) 32 AJLP 161 at 164.Google ScholarBigwood addresses the critique of his work by Gava: Gava, J ‘The audience for Rick Bigwood's Exploitative Contracts ’ (2007) 32 AJLP 140.Google ScholarGava considered that Bigwood's work was based on the implicit premise that judges would be able to follow and incorporate ideas contained within the work, whereas Bigwood clarified that he had not envisaged a direct transfer of ideas.

131. Cownie, F and Bradney, A Gothic horror? a response to Margaret Thornton’ (2005) 14(2) S & LS 277 at 280.Google Scholar

132. Ibid, at 277–278 (emphasis added).

133. Ibid, at 280, quoting from Thomson, A Critical approaches to law: who needs legal theory?’ in Grigg-Spall, I and Ireland, P (eds) The Critical Lawyers' Handbook (London: Pluto Press, 1997) pp 2–10 Google Scholar and A Bradney ‘Benchmarking: a pedagogically valuable process? An alternative view’ (1999) Web JCLI 6 at 430–443; and Cownie, above n 32, pp 133–141.

134. For a discussion of the role of the Society of Legal Scholars and various conferences and journals, see Cownie, F and Cocks, R A Great and Noble Occupation! (Oxford: Hart Publishing, 2009) pp 137–141 and 183–186.Google ScholarThe Socio-Legal Studies Association was formed in 1990 to promote and encourage the work of socio-legal academics.

135. Eg, the Griffith Law Review, established in 1992, has, since 1996, encouraged the publication of interdisciplinary, social and critical legal research.