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Murder Mystery

posted by Elizabeth Warren

I’ve been reading “The Strange Death of Academic Commercial Law,” by Larry Garvin.  The piece is a cheerfully ghoulish description of how few people are teaching and writing in commercial law and how the field is aging.  He reports some telling statistics to back up his claims. 

My quibble with Larry is just a quibble: Hey, bankruptcy is part of commercial law (Larry counted only the UCC courses).  Including bankruptcy would improve the teaching and scholarship stats considerably.  Similarly, there is some new action in consumer law and e-commerce that might also be omitted from Larry’s calculations. 

But accepting Larry’s overall point as true, we might ask whether the future is quite so bleak.  Early scholarship in the field might have been characterized as three-cases-and-a-cloud-of-dust, a sort of technical odyssey that appeals only to those who dream in code reference numbers.  The next generation of scholarship has been my-theory-is-better-than-your-theory, a debate that seems to be caught in endless loops in which eventually everyone has heard all the jokes.

Perhaps a new day is dawning.  It is no surprise that I’m evangelical about empirical work, but I think about it in response to Larry’s piece.  Empirical work rescues my-theory work from sterility.  It also anchors scholarship to practice, which expands its audience to judges and practitioners.  And it adds some surprises and some occasional counter-intuitive findings, which ratchet up the interest factor.  Besides, empirical work is getting hot (ask Bernie Black). 

An idea to work with.  An audience that will care.  A technique that is cool.  What young scholar could resist? 

Don’t call the undertaker yet.


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