Risk and Reward

I wrote recently about whether scholarship (in philosophy and in other areas, such as law) can make a difference, and whether this matters. As it happens, PrawfsBlog has been running an interesting series of interviews with scholars whose work has been cited by the US Supreme Court, asking them, among other things, what they thought of the alleged uselessness and irrelevance of legal scholarship. Some say scholarship matters, though courts will not admit to being influenced by it. Others cheerfully say that most scholarship is, indeed, irrelevant ― but add that that’s fine. Wille Baude is in the latter category, and he has a great line by Frank Easterbrook’s article called “What’s So Special About Judges”, 61 U. Colo. L. Rev. 773 (1990), as evidence:

 A free mind is apt to err ― most mutations in thought, as well as in genes, are neutral or harmful ― but because intellectual growth flows from the best of today standing on the shoulders of the tallest of yesterday, the failure of most scholars and their ideas is unimportant. High risk probably is an essential ingredient of high gain. (777)

This brings to mind my own favourite line by prof. Easterbrook (as he then was), from “Vertical Arrangements and the Rule of Reason”, 53 Antitrust L.J. 135:

We live in a world where knowledge is scarce and costly, ignorance rampant. (145)

If “knowledge is scarce and costly,” then producing a bit more of it is a “high gain.” So it makes sense that an investment in its production is always a speculative one. Judge Easterbrook, at least, seems to subscribe to what I described, in my previous post, as the “venture capitalist” theory of the value of scholarship (as opposed to the “stonemason” theory, according to which each researcher adds a little something to knowledge, which is thus built up one small element at a time).

It is ironic, of course, that academia turns out to be a risky enterprise. Those who enter it probably see it as safer than business or even, possibly, the practice of law. But it all depends on what risks one considers. The risk of being a failure, in the sense of not producing anything worthwhile, might be higher in academia than in many other lines of work. Then again, this risk has its rewards. Just ask the people whose scholarship is cited by the Supreme Court.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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