Workshopping for Success

Author: 
Robin I. Mordfin

The University of Chicago Law School was a seminal force in using workshops to develop ideas and to perfect scholarly papers and articles. Today, workshops are ubiquitous on American campuses and have become essential to the academic process, but it was the Law and Economics giants at the University of Chicago who established the practice of bringing the best minds of different disciplines together to evaluate and encourage new work in an accessible, defined format.

The workshop phenomenon began in the autumn of 1960 when Aaron Director and George Stigler began running the Workshop in Industrial Organization. Director had founded the Journal of Law and Economics two years earlier and saw the workshop as a way for those interested in publishing to hone and perfect their articles. The workshop was held several times over the academic year and studied “the structure and behavior of industries, with special emphasis on the role of government and regulation.”

While the workshop was run by and held at the Law School, a healthy contingent of the economics faculty from across the Midway attended on a regular basis. In fact, according to Judge Richard Posner, senior lecturer in law, there were always more economics faculty present as it was seen as an economics workshop. Academics from leading universities as well as the University of Chicago were invited to the workshop to present nearly finished or in-progress papers for discussion and critique by the University of Chicago faculty. Drafts would be circulated a week or two in advance and would be closely read by everyone attending, including a handful of specially invited students, usually 3Ls. That week’s presenter would give a short talk about his work and would then have a little under two hours to hear comments and answer questions from the audience.

“It was very tough,” commented Posner. “In fact, it was brutal. Stigler was really smart, and he was very hard on his people, but very incisive. Ronald Coase and Aaron Director would add their thoughts, which were also very insightful. The whole thing was excellent.”

In this period, the University of Chicago had no competition in Law and Economics. It was the first institution where researchers began applying economic principles to social institutions, and the workshop was key to the development of the discipline.

Today the historic harshness of that workshop has taken on nearly mythic proportions, but the level of difficulty for presenters at the Workshop in Industrial Organization was apparently quite unique.

“Aaron Director would rip out your entrails and then ask you why they were misshapen,” noted Richard Epstein, James Parker Hall Distinguished Service Professor Emeritus. “I learned a lot more going to those workshops and not being the target. A lot of us who attended felt that way; we had a ‘glad it’s not me’ attitude.”

Gradually, the number of Law School faculty who attended the Workshop grew, and together with the economists, they would work on substantial issues such as the regulation of the airline industry, a topic that required experts in both disciplines. But according to Epstein, by the late 1970s, the economists had stopped attending.

“They were going more techie, using equations for everything, and did not have an interest in what we had to say,” Epstein added. “But that did open things up more for the people at the Law School to really make a difference in Law and Economics. But the workshop itself didn’t change much, it was still like Roman gladiator combat.”

As time passed, a variety of professors ran the workshop, including Ronald Coase, William Landes, now Clifton R. Musser Professor Emeritus of Law and Economics, and University Professor Gary Becker. But the goal remained the same, to develop strong research in Law and Economics. Of course, after a while, the obvious success of the workshop, and the strong work it turned out, began to interest other faculty members and eventually led to the development of other workshops.

Although the Workshop in Industrial Organization was long viewed as a workshop in Law and Economics, the titled Workshop in Law and Economics was actually formed by Posner and Landes in 1974. This workshop was “devoted to the intensive examination of selected problems in the application of economic reasoning to legal questions in such fields as property law, criminal procedure, accident law, and antitrust law.” The group met every other week throughout the academic year, and for the first time students were invited to enroll and could receive six credits for completing a substantial paper. Industrial Organization was run for the last time in the 1980–81 year.

“The workshop was a pressure cooker, and when I arrived in 1972 it sent a very clear message of being seen and not heard. Of course, there were these wonderfully impossible people—George Stigler and his crowd of geniuses who were not particularly good at developing protégés,” Epstein said. “But today there is a much stronger bend toward parity, everyone participates. And it is much less of a pressure cooker experience. It is still a sink-or-swim situation, but if you can swim, you can soar.”

Law and Economics is the longest-running workshop at the Law School and holds such an esteemed reputation that it attracts superstars of the academic world. Among the multidisciplinary experts who have presented papers in the last few decades are Yale’s George Priest and Alan Schwartz, Harvard’s Steven Shavell and Louis Kaplow, along with a slew of Chicago luminaries including Saul Levmore, William B. Graham Distinguished Service Professor; Richard Epstein; Daniel Fischel, Lee and Brena Freeman Professor of Law Emeritus; and Gary Becker. Landes and Posner ran the workshop until 1990, when the faculty for the course began to change more regularly. Douglas Baird, now Harry A. Bigelow Distinguished Service Professor; Daniel Fischel; Randal Picker, now James Parker Hill Distinguished Service Professor; David Weisbach, Walter J. Blum Professor of Law; Lisa Bernstein, Wilson-Dickinson Professor of Law; Omri Ben-Shahar, Leo and Eileen Herzel Professor of Law; Lecturer in Law Scott Davis; and Assistant Professor William Hubbard have all taken the opportunity to help students and faculty to make the most of their research.

“Law and Economics set the stage for the workshops we have today,” explained David Strauss, Gerald Ratner Distinguished Service Professor of Law. “The workshops really serve three purposes. First, there is the pedagogical purpose, in which the students get to see the real sausage-making process of scholarship. Second, they are a wonderful way to bring to the Law School ideas from other schools. And third, they provide yet another way for faculty to get together to question ideas and to spin off conversations that lead to more ideas to investigate.”

Professors began to see the benefits of creating workshops in their areas of expertise: they would provide opportunities to meet with leaders in their field while reading and critiquing their work and would also provide opportunities to teach a new generation the art of legal scholarship. For example, Geoffrey Miller started the Workshop in Legal Theory in the Fall of 1989. The workshop, according to the Law School Announcements, looked at “a variety of selected topics in the area of legal theory. Among other subjects that may be addressed are the role of self-interest in legal theory: republican, interest-group, and pluralist theories of legislation; the legal and moral standing of lies, omissions, and partial truths; legal anthropology; and the relations among legal, theological, and literary principles of interpretation.”

But what truly set the Legal Theory apart from the other workshops offered at this time was that part of the intent of the workshop was student involvement. At each of the six sessions at which papers were to be presented, students were expected to write one- or two-page critiques to bring to class. They were also required to write a substantive paper on an area of legal theory.

“The idea behind was to have an interdisciplinary workshop that involved disciplines other than economics,” said Strauss, who took over Legal Theory in 1994. “So we invited philosophers, I think some literary critics, political scientists, and political theorists, as well as legal scholars whose work drew on those disciplines.

“When the Law and Philosophy workshop started, it took over much of that terrain, and around that time, we converted the Legal Theory Workshop into the current Constitutional Law Workshop,” Strauss continued. “The idea was to shift the emphasis somewhat more toward law and away from the associated disciplines, just because those other disciplines were covered well by other workshops. But one interesting aspect of this is that, over time, legal scholarship has become more and more interdisciplinary, so that even a law-focused workshop, like Con Law, will bring in lots of people whose work is influenced by other disciplines.”

The Workshop in Law and Philosophy was inaugurated in the Spring Quarter of 1994 when Martha Nussbaum, Ernst Freund Distinguished Service Professor of Law and Ethics, was visiting faculty and was funded by the university’s new Humanities Center, now known as the Franke Institute. “The basic idea was that law and philosophy usually intersect on a very narrow terrain, that of technical jurisprudence; and yet the law uses many concepts that philosophers have investigated, and we thought that both disciplines would profit from collaborative investigation of the way these concepts work in law and the ways in which they are analyzed in philosophy,” Nussbaum explained. “The initial group was faculty only, and the first time we tried it out we had sessions on a variety of different concepts, but when I moved to Chicago full-time, we began the system of holding the workshops on a single topic throughout the year.”

Law and Philosophy began accepting students in 1999, and the speakers for the workshop have come not only from the University of Chicago but also from philosophy and law faculty from Northwestern University. Topics investigated in the past include autonomy, equality, privacy, race, gender and family, and global equality. In 2007, Brian Leiter, Karl N. Llewellyn Professor of Jurisprudence, joined the Law School faculty and began supervising the workshop with Nussbaum. This year’s topic is life and death.

Strauss and Adrian Vermeule started supervising the Workshop in Constitutional Law in the Fall of 1999. The workshop exposed students to “to recent academic work in constitutional law and the theory of constitutional interpretation.” Strauss’s aspiration is to create a rigorous but civilized environment, where paper are read and considered seriously and where good questions are asked and answered.

Clearly, the notion that workshops should be encouraging is something of a response to the harsh reputation established by the Workshop in Industrial Organization. But Strauss is hardly the only one looking to make his workshop civilized.

“Today, Chicago has a reputation for being tough but civil at the same time, and it is nice that our workshops have now developed both reputations,” noted Professor of Law Alison LaCroix. “Having presented at workshops at other schools, I think it is clear that we are modeling to students how to have civil and rigorous academic discourse. Sometimes other schools and faculty set up students to ask questions and the presenter is merely a foil. They just attack and are not interested in actually improving the work. In other cases, workshop attendees have not read the paper. But Chicago has a very strong norm that everyone comes to the workshop having read the paper, which creates a much more collaborative environment.”

A number of other workshops formed over the next decade. Thomas Ginsburg, Leo Spitz Professor of International Law, and Eric Posner, Kirkland and Ellis Distinguished Service Professor, started the Workshop in International and Comparative Law in 2008. It meets four times in the first quarter every other year and offers students the opportunity to read new research in the field.

“International law is the most important area of law in the world now because of globalization, and we would be doing our students and faculty a disservice if we are not engaging in the topic,” said Ginsburg. “These days, you cannot advise clients on antitrust, arbitration, or even divorce in Peoria without a knowledge of international law, because everything has global strings.”

In 2008, Mary Anne Case, Arnold I. Shure Professor of Law, founded the Regulation of Family, Sex, and Gender Workshop, which looks at these issues through a feminist theory lens. “We like to show the Law and Economics people how their methods can be used to consider a variety of different topics that they might not have thought about,” Case noted. “The presenters I bring in are all experts in the field, but they are not all lawyers. I invite people who specialize in different areas, like history. But their work is always relevant to the law.”

That year veteran workshop supervisors Landes and Posner started the Workshop in Judicial Behavior, which provides students “with the opportunity to read and analyze cutting-edge scholarship that focuses on how judges reach their decisions.” The workshop accepts a limited number of students from the Law School and from Northwestern University Law School. “We try to invite speakers who are mostly, but not all, academics, who have something interesting to say about judicial behavior,” Posner said.

A group of other workshops that concentrated on public law also started in this period, including American Legal History, Crime and Punishment, and Law and Politics. These workshops brought even more new faculty into the workshop world.

“The idea was to hear about cutting-edge research at the forefront of the field, and there is no better way to do that than to invite accomplished scholars to present their most recent work,” explained Jonathan Masur, deputy dean and professor of law, who spent his first couple of years as a member of the faculty helping to run the Law and Politics Workshop, which looked at the legislative process, electoral structures, and constitutional constraints on political institutions.

But with so many new workshops, getting faculty to attend them all was becoming something of a problem. In 2009, these three workshops and Legal Theory were combined in the Public Law and Legal Theory Workshop.

“I remember talking to several faculty members one day and saying that there were just too many workshops. That was when we decided to combine a few of them into one workshop,” noted LaCroix, who had been running the history workshop. “The beauty of the current workshop is that it is broad enough to absorb all these ideas and that it is both lunch and intellectual stimulation. It’s broad enough to absorb all these workshops, and it allows us to invite all kinds of academics—not just lawyers.

“It’s also nice to have this workshop because while the Law School is mostly known for Law and Economics, we have an incredibly strong public law faculty. We have experts in voting rights, democracy, con law, administrative law—and this offers us the opportunity to stay connected to colleagues at other schools.”

Part of the growth of popularity in workshops around the nation is the changes that technology has brought to the development of scholarly work. With the advent of SSRN and other databases, everyone in a field has already read a paper by the time it is published. That exposure brings commentary and critiquing previously not available until after an article appeared in a journal. The workshop process can offer researchers constructive feedback before a paper appears online or in print.

Today, workshops are an integral part of how law professors are hired. Many schools evaluate candidates by how they perform in a workshop environment because it gives the faculty the opportunity to see how candidates approach scholarship and how they perform in a collaborative intellectual environment.

“In 2006 or 2007, Eric Posner invited me to give a paper at his workshop, and when I arrived Saul Levmore, who was dean at the time, was sitting in the room,” Ginsburg said. “I gave the paper and went home. Then I got a phone call to come back.”

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