Chief Justice Roberts and Legal Scholarship
posted by Daniel Solove
In response to questions after giving a speech, Chief Justice Roberts expressed how he generally ignores legal scholarship. According to the WSJ Blog:
Roberts said he doesn’t pay much attention to academic legal writing. Law review articles are “more abstract” than practical, and aren’t “particularly helpful for practitioners and judges.”
This view is frequently stated by practitioners and judges, but I find it kind of glib and dismissive. It is true that a lot of legal scholarship is written for an academic audience, but a lot is written with practitioners and judges in mind.
It is easy to make broad generalizations about anything. It is easy to just brush tens of thousands of articles and books aside in a sweeping stereotype. Its kind of like saying all horror movies are bad because many are. But then you might be missing some great movies like Psycho or The Shining.
Today, there’s a tremendous wealth of legal scholarship — much more being produced than ever before — and there’s stuff being written for many different kinds of audiences. A lot is written for other academics. Some legal scholarship appeals to lay readers. There are also very useful articles for legislators, lawyers, and judges.
So to Chief Justice Roberts I say the following: Today, there’s a lot of choice with almost everything, such as TV channels, magazines, and types of beer. So, too, with legal scholarship. Think of legal scholarship as akin to gelato in Italy, where there are a zillion flavors. Take a closer look, and you’ll find your flavor. But yes, between a law review article and a scoop of gelato, the gelato wins hands down.
April 8, 2010 at 12:26 pm
Posted in: Law School, Law School (Scholarship), Supreme Court
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Responses (9)
Maryland Conservatarian - April 8, 2010 at 1:16 pm
“Roberts said he doesn’t pay much attention to academic legal writing. Law review articles are “more abstract” than practical, and aren’t “particularly helpful for practitioners and judges.”
Unfortunately, the CJ has contributed to this problem by writing several by-lined articles for various law reviews…so unlike another Harvard Law Review alumnus at the top of a different branch of the federal government.
“Today, there’s a lot of choice with almost everything, such as TV channels, magazines, and types of beer.”
Exactly – and I’m sure Lifetime, MSNBC and Newsweek occasionally produce something of interest; I’m just not going to waste my time continually checking in for it.
Gerard Magliocca - April 8, 2010 at 11:29 pm
Dan,
At his lunch with our faculty, I asked him a similar question. I think what he meant was that in his spare time he likes to read history and not law review articles. (Fair enough — only nutjobs like me read law review articles for fun.) He said that he did read articles related to cases if his clerks recommended that he should.
SCOTUSblog » Friday round-up - April 9, 2010 at 9:38 am
[...] articles are not “particularly helpful for practitioners and judges,” Daniel Solove writes for Concurring Opinions that the Chief Justice’s view is “kind of glib and dismissive. It is true that a lot of legal [...]
A.J. Sutter - April 9, 2010 at 12:34 pm
Sorry, but I have to concur in part with the Chief Justice. I poke around on academic blogs and in SSRN certainly more than the average transactional practitioner. But I’ve never found an academic law review article useful for my law practice in more than 2 decades of looking. (I assume litigators have better luck, since when their facts are weak they’re always looking for new legal theories.) The gargantuan length of most articles is definitely a turn-off, and the relative lack of practical experience of any of the authors is often the opposite of reassuring. If it’s any consolation, even many law firm newsletters are too wordy and badly organized to capture the attention of in-house counsel. Even if some academic article might be useful in principle, the zillion-flavor aspect is more of a problem than a virtue. To switch metaphors, the low signal-to-noise ratio makes it too difficult to find that one article. When I do need a longer article, it’s far more efficient to look in bar publications, since the authors always have practitioners’ needs in mind. That said, as for “win[ning] hands down,” I’d rather put my hand down onto a law review article than onto a scoop of gelato (sc. senza cono).
brad - April 9, 2010 at 3:29 pm
If different law reviews specialized in articles for different audiences it would be easier for each audience to find what is useful to them. Unfortunately the legal scholarship world is dominated by signaling effects rather than utility.
Alan - April 10, 2010 at 4:27 pm
“Its kind of like saying all horror movies are bad because many are.”
Except he didn’t say “all” law-review articles are useless.
Maybe—just maybe—the real reason he tends to avoid the journals is that he thinks they’re ideologically biased, with Berkeley-style leftist opinion represented far out of proportion to its presence among legal thinkers generally. Maybe.
Alan - April 10, 2010 at 4:28 pm
Also, Psycho is overrated.
Tim - April 13, 2010 at 12:03 pm
I have heard the chief say, in another interview, and by way of analogy, that much of the legal academic literature is like the literature on theoretical physics: it might have some value to other physicists, but it is unlikely to be useful to someone–an engineer, say–who needs to know enough about the physical universe to build a bridge. To the extent that he’s saying a large fraction of the scholarly literature will be of little use to practitioners, this is largely just true. A litigator can pore over the dense and rich commentary on, say, Twombly/Iqbal, and find nary a jot that will inform the way she drafts her next pleading. But to the extent the chief is saying such literature is of little use to anyone (which I don’t think he says), this would obviously be more problematic, as the literature represents a discussion among those with great influence over shaping the lens through which future practitioners view the field.
One thing about the “glib and dismissive” tone: Sometimes I get the impression that the legal academic press has the very same attitude toward a kind of literature that used to be the characteristic model for legal academic writing, namely, practitioner’s guides. My impression (maybe others will disagree) is that when I thumb through the pages (or, more accurately, click through the pdfs) of early Harv. L. Rev. volumes, I am surprised by the extent to which the articles could be substituted for chapters in a modern hornbook. There was a time, or so it seems to me, when academicians were writing the sorts of pieces that a practitioner would have unfolded on his desk, checked and doubled-checked, dog-eared and underscored, while composing his briefing. Nowadays one gets the sense that such pedestrian content is somehow “beneath” the academy, that an original contribution to the literature should be theoretical, or empirical, or both. Not that there’s anything wrong with that–but one shouldn’t expect practitioners to be well-represented among the consumers of such literature.
Daniel Solove - April 13, 2010 at 11:03 pm
Tim,
There also was some theoretical scholarship, such as many articles about legal realism, and Warren and Brandeis’s The Right to Privacy, that was widely read by practitioners and judges.
It might be good for judges to read more legal scholarship. There are a lot of interesting works in empirical scholarship, for example, that many judges could learn from, as they often rely on mistaken assumptions and evidence. There are many works that provide compelling arguments of logical inconsistencies in various cases and lines of cases. Judges might glean something valuable in these pieces as well. And many of the great jurists of the past were voracious readers of many different kinds of things, such as literature, philosophy, history, and sociology.
This is why it saddens me a lot to hear the attitude that the only scholarship with appeal to practitioners or judges is doctrinal scholarship. I would like to think that great judges and practitioners are avid readers, engaging with interdisciplinary scholarship to keep a nimble mind and stay current with the latest ideas.
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