Some thoughts on textbooks as scholarship

In some jurisdictions, text books are not counted or countable as legal scholarship.  As I understand it, this is somewhat true of Australian legal academia.  I have to say, I find this somewhat perplexing (both hard to understand and somewhat annoying) as I sit here reviewing the final page proofs of the significantly revised version of my comparative law textbook (Comparative Legal Traditions: Texts, Materials and Cases on Western Law, by Glendon, Carozza & Picker (West Academic Publishing, forthcoming October 2014)).

As an author of numerous journal articles, book chapters and other forms of “acceptable” scholarship, I strongly believe that the analysis, research skills and scholarly efforts required to write a good textbook are at least equal to that required for the “acceptable” forms of scholarship.  In addition, a good textbook’s contribution to the development of the field can be equal, and sometimes greater, than many other forms of scholarship.

The research required to write or significantly revise a textbook can be intense.  Ensuring that the content (the texts, cases and commentary) in a textbook  are up to date across many hundreds of pages is a significant research challenge.  Furthermore, the typical textbook requires coverage across many more parts of a field than is required for the usual article or chapter, and even for many monographs (the gold standard of scholarship).

The legal analysis that is required for a textbook can be just as demanding if the textbook is more than just a compilation of texts and cases – and a good textbook should be significantly more than just a compilation of good texts (though identification and excerpting texts and cases is itself a valid form of scholarship). We would all agree that text presented without analysis by the textbook authors is not very helpful.  But the commentary required throughout a good textbook in order to present the field’s contours, internal connections and logic can be very difficult to craft.    Similarly, the questions and problems posed in a textbook that are designed to lead readers to deeper levels of understanding are exceptionally hard to write and may be little different than those analogies and hypotheticals provided in other acceptable forms of scholarship.

Of course, there are textbooks which would not satisfy the description I provide above. But bad textbooks should not be the ones used to set rules about whether textbooks are deemed acceptable scholarship or not.  After all, there is no shortage of bad scholarship, but so long as it is published in a peer reviewed journal or in a book published by one of the acceptable publishers it can be counted.  Obviously we should be looking between the covers to judge the scholarship quality of all types of publications, and not as a matter of course rejecting certain types.  While this may (or may not) be suitable in other disciplines, such as those in science, it is clearly not so for law.

There are additional and critical reasons why we should not penalize academics’ work on textbooks.  By relegating textbooks to the trash heap of scholarship we discourage the best scholars from working on these important parts of our fields.  Textbooks help to set the tone of a field by educating the future practitioners, officials and judges that are the lifeblood of the field. Indeed, often those textbooks continue to be found on their office bookshelves decades after they graduated law school.   I would thus argue that textbooks play a significantly more central role than does almost all other scholarship – so much more than the vast majority of scholarship which ends up hardly ever being read by these participants, or indeed by anyone.   Fortunately many of my colleagues and other legal academics in Australia and elsewhere ignore the negative consequences and do devote significant time and energy to writing textbooks.

As readers of this blog will know, I have written many pieces critical of American scholarship and academia (based on my experiences there and outside America).  But, the place of textbooks in American legal academia is an example of where American legal academia has it right.  It is often the case in America that the leaders of a legal field are the ones who write the textbooks for those fields.  For proof, look at how many of the Harvard, Yale, Chicago and other elite law school academics are authors of the leading textbooks in America (e.g., my co-author Mary Ann Glendon,).  Indeed, it is a sign of your standing that you write a textbook for one of the leading academic publishers.  The adoption of your textbooks across the country is a sign of and a reflection of your position as a scholar, itself reflected within the covers of the book given that so often those very textbooks develop new approaches and provide avenues for research not otherwise available – reflecting that they truly are valid forms of scholarship.

Anyway, enough procrastination.  Review of Chapter 12 of my textbook beckons.

Colin B. Picker.