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What doctrinal facts drive scholarship?

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4 Responses

  1. Jeremy says:

    I am no legal scholar, but I have done a decent amount of research in family law. The constant debate in family law seems to be how to find the best interest of the child. I don’t know of a jurisdiction that doesn’t require all custody and support orders to be based on a best-interest theory, but neither do I know of a single jurisdiction that clearly enunciates what that means. Texas has a seminal case listing factors judges should consider, but family law judges in Texas have enormous discretion.

    Another family law constant concerns property division in divorce. Texas doesn’t require the equal division of property in divorce; rather, the Texas Family Code requires the “just and right” division of marital property. There’s even a case where a court-ordered 90-10 division was held to be “just and right”; while another case held a 55-45 division not “just and right.” Like I said, Texas family law judges have enormous (but not unlimited) discretion.

    Family law, the stepchild of legal scholarship, really does have some interesting debates. The debates in these two issues center around whether and how much discretion the judge ought to have. (Unfortunately for aspiring family law scholars and hot-shot family lawyers, these cases are decidedly less glamourous than their con law/crim law/contract law brethren.)

  2. Bruce Boyden says:

    There’s something like 29,000 federal appellate decisions out there each year; not all of those involve constitutional claims, of course, but how come those aren’t filling the gap?

  3. Paul Horwitz says:

    Bruce raises a good point. I’m not sure I agree with your acquaintance in the first place, but even if he were right, there is ample federal appellate material on which to write, and *if* one of the goals of legal scholarship is to rationalize and give form to an amorphous body of caselaw, which many scholars would dispute, then the reduction in Supreme Court con law decisions would increase, rather than decrease, both the need and the opportunity for such work. And that’s leaving aside the substantial body of important *state* appellate decisions interpreting the Constitution. Even if your friend were right, his statement, to be complete, would have to include an implicit assumption: that the mass of lower court opinions are, to steal a phrase from Underneath Their Robes, just too “ghetto” to bother with. In any event, even if we limited ourselves to the Supreme Court, we’d have to consider not only the number of constitutional decisions issued by the Court (by which, due to the usual subject-matter carve-ups, I suppose I mean non-criminal constitutional decisions), but also the number of separate opinions and, more importantly, the size and scope of those opinions.

  4. Trevor Morrison says:

    I agree with Paul’s points. But in addition, even if a scholar were inclined to focus only on Supreme Court decisions, the overall decrease in Supreme Court cases each year doesn’t really tell us much. Back when the Court was decided 150 or more cases a year, it’s not like scholars were writing about each of those cases. Rather, whatever the size of the Court’s overall docket, it was always a small handful of cases per year that attracted the vast majority of scholarly attention. So, assuming arguendo that one were inclined to write only about the big doctrinal puzzles created by the Court, the question is not whether the Court’s overall docket has shrunk, but whether the number of big ticket cases per year has decreased. I don’t think it has.