Are We Writing Only For Ourselves?
posted by Charles Sullivan
In 1992, Judge Harry Edwards wrote an article in Michigan, The Growing Disjuncture Between Legal Education and the Legal Profession, which was, as the title suggests, an effort to redirect legal scholarship from what Edwards perceived as a too-abstract and theoretical path towards work that would be of more immediate use to h judges and lawyers. I think it fair to say that, while legal scholarship, has since evolved in a variety of directions, one of them has not been more practical scholarship along the lines Judge Edwards urged.
His piece has been much discussed, but also essentially ignored as legal scholarship has moved futher in the direction Edwards decried (I’m speaking too broadly here, I know, since terrific doctrinal scholarship continues to be produced and an increasingly empirical literature might be the most “practical” of anything that appears in the law reviews). But the median journal article, so to speak, at least in the leading law reviews, is one it is hard to imagine a lawyer or court citing, and not much easier to imagine your average policy-maker even understanding.
But this is old news. As I start this academic year, iit occurred to me that not only is legal scholarship no longer written for judges and attorneys but we in the legal academy seem far less interested than in past years in even acquainting future judges, lawers, legislators, and policy makers with our scholarship. Casebooks are increasing ignoring the literature that is the stuff of academic discussions of the topic in question, and, when the scholarship is cited it is typically in tip-of-the-hat fashion.
This might be a kind of left-handed compliment to Edwards, who was also concerned about whether legal education was failing to educate students for actually practicing law: “The law student who merely takes a variety of pure theory courses, and learns that ‘practitioners [a]re sell outs,’ will be woefully unprepared for legal practice. That student will lack the basic doctrinal skills: the capacity to analyze, interpret and apply cases, statutes, and other legal texts. More generally, the student will not understand how to practice as a professional.”
I guess my thesis is that legal education has responded to Edwards by taking his critiques of the educational process seriously, but not by altering in any meaningful way the fundamental goals of legal scholarship. Thus, the disjuncture that Edwards was concerned about to a full-fledged breach. We not only do not write for the bench and bar — we also do not write for our students.
Some might say that the move towards simpler, less sophisticated casebooks, is due to pressures by publishers, who want shorter, more student-friendly books. But, of course, students don’t buy casebooks (well, they do, literally speaking, but they are a captive audience for the professors who “require” them), so it’s likely that the publishers are reacting to the market which is, in turn, rejecting (as far as the classroom is concerned) our own work. Casebooks have always been viewed as “the lowest form of scholarship,” but current pressures threaten to push them down even further — to the highest form of study aids.
All of which leads to the title of this piece — “are we writing only for ourselves?” And, if so, why?
August 31, 2006 at 8:56 am
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Responses (7)
Frank - August 31, 2006 at 11:01 am
I used a very scholarly casebook my first two years teaching a semi-required course, and students really resisted it. I got many negative comments on the book in the evaluations. PErhaps the answer is to have two versions of the casebook; one scholarly, which serves as an academic treatise on the leading issues, and another designed solely as a pedagogical tool.
As for “who we write for”…I’d say that the legal academy’s audience is fragmenting. Many doctrinalists are writing solid analysis that gets cited in court opinions or otherwise influences the law. Some interdisciplinary people want to influence both law profs and their “home field.” Others are seeking more of a policy role, proposing changes to the law (and even seeking to influence public opinion). Finally, there are those who seek just to understand law-related phenomenon, with no orientation to reform (a group defended by Paul Kahn in The Cultural Study of Law).
At a recent conference on legal methodology I attended, I suggested one last role for the law professor–to ask the questions that just aren’t being asked in seemingly relevant fields, or to expose the biases or blind spots in those fields. Some of the best political science written nowadays draws from a wide variety of methodologies. Perhaps some law professors can be at the vanguard of a multidisciplinary approach that unites the best tools from a variety of academic approaches. Our audience could be whatever “critical public” seeks a deeper understanding of the social problems the law can address.
Captain Obvious - August 31, 2006 at 12:41 pm
Listen, there is a very easy answer to all of this. Law professors write this pie-in-the-sky stuff that is great. (And I mean that.) What they fail to do, though, is — once their theory is refined and crisp, apply their theory to some actual doctrine in some actual cases in some actual jurisdiction (i.e., cases not in casebooks — go do some recent research). Lawprofs should not only be more empirical; they should also include state supreme courts and appellate briefs and attorney general opinions in their analysis. Or, here’s a thought — propose their theory, show how actual cases and actual briefs diverge; and then show how their theory is emergent, is an improvement, etc. Very rarely is the theory contextualized. Were it, a whole lot more judges and lawyers would find it usable.
Daniel J. Solove - August 31, 2006 at 12:49 pm
It is certainly true that many law review articles are written primarily for an academic audience and don’t have much relevance to the day-to-day practice of law by lawyers and judges. But I think that things are a two-way street. Lawyers and judges increasingly ignore legal scholarship, and there still remains quite a lot of legal scholarship that is very relevant to their practice.
There’s also the notion floating around that more theoretical scholarship about the law is of little value to practitioners. But I think that this view is short-sighted. Consider, for example, the works of the legal realists during the early and mid twentieth century. These works did not have any immediate payoff in terms of digesting doctrine or providing comprehensive views of a field. But they had a dramatic impact upon the way people today think about the law. Based on today’s views on legal scholarship, the realists would be read only by law professors and be rejected by practitioners as irrelevant theoretical ramblings with no immediate payoff to their practice.
Maybe the reason is that modes of judging and practicing law have changed. Gone are the more creative days of the Warren Court, where was a much greater dynamism to the interpretation and application of law. Perhaps today, theory is no longer seen as a central tool to inform legal analysis but as a waste of time; cases are decided as if judges were writing law school exams. I hope that this isn’t the case, but it is another possible explanation.
Another explanation: There is so much legal scholarship that practitioners can’t keep track of it all. In the early days, with only a few law reviews and the expectation that only professors at a few schools would publish, there was much less legal scholarship. Today, there’s a flood of scholarship, and a large chunk of it isn’t very illuminating. So the problem is that perhaps the good stuff is getting lost in the heaps, and practitioners just don’t have the time to sift through it all to find the nuggets.
Frank - August 31, 2006 at 2:28 pm
I second Dan’s analysis re information overload.
I hope a system of decentralized post-publication peer review (such as that proposed by Mike Madison) gradually addresses that problem.
Dan’s observation on new, more restricted modes of judging also strikes me as relevant here. To the extent it’s true, the law prof will have to consider the legislature and myriad administrative bodies an audience at least as important as judges have been.
Doug B. - August 31, 2006 at 3:04 pm
I discuss all these issues in my contributution to the Harvard blog symposium (available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=898174).
In short, I suggest that blogs present an extraordinary means to bridge and narrow the widening gaps between scholarship, teaching and practice.
Charlie - September 1, 2006 at 6:23 am
I’ll pass by whether there’s really less judicial theorizing these days than in the days of the Warren Court — there’s certainly quite a lot of creative judicial work being done, although qdmittedly not of the rights-expanding kind Dan has in mind.
But, of course, Dan’s comment doesn’t address my primary concern, that whatever the strengths and weaknesses of scholarship, the trend of casebooks to not devote much, if any, attention to the issues that preoccupy scholars in the area will tend to reinforce current trends to create separate domains for scholarship and the “real world.”
MJB - September 3, 2006 at 6:01 pm
I’ll throw in some very broad observations. I am a 3L at a (so-called) T14 school and have spent two summers as a summer associate at law firms, one at a large regional midwestern firm and another at one of the big NY firms.
As a student I actually used and felt that scholarly articles were helpful in certain contexts and for certain courses, even first year subjects. If nothing else the opening section of a well-written article is often an excellent way to get to the heart of some confusing area of law. I frequently read articles in Constitutional Law, for certain personal jurisdiction issues in Civil Procedure, and for difficult UCC sections in Contracts (UCC 2-209, etc). However I mostly stuck to articles cited by my professors or casebooks–to just go tromping on Lexis was usually overwhelming.
As a summer associate law reviews filled a similar purpose. Sadly, I suppose that the most useful articles were not used that differently than a Bender’s or an annotation–something to get you quickly up to speed on a new area of law. That said my sense is that scholarly articles still serve as an important safety net–where the “law” is ambiguous, or a creative argument is needed, the scholarly articles will be turned to and often actively sought outdevoured. The irony of course is that although their reasoning may be used they are often not even cited in interoffice memos, since neither the partner nor the judge tends to regard the fact that it came from a scholarly article as authoritative. This creates an odd feedback loop.
Anyway, my point is simply that young professionals, including those in private practice do in fact want to use and will use scholarly work that is accessible. It will be associates and law clerks, not judges and partners, who read the articles.
The problem of course comes to no feedback for the professor; no one keeps track of how many citations in interoffice memos there are and even if used they are often only used for reasoning and, since they lack authority, are not even cited. Compare this with the academic realm where tip of the caps through citations in other articles is at least quantifiable. Also, this may not be the kind of groundbreaking work that scholars are interested in.
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