What Do Law Professors Do?
posted by Gerard Magliocca
In the legal writing interviews with the Justices that I referred to over the weekend, Chief Justice Roberts said that “[w]hat the academy is doing, as far as I can tell, is largely of no use or interest to people who actually practice law.” Judges and lawyers often make similar comments, so I thought that I would try to explain why I think this view is, at least, exaggerated.
First, there are many excellent scholars who write traditional doctrinal articles that are useful in deciding difficult cases. Some fields, of course, lend themselves more to that than others, but I think it would be wrong to dismiss what they do.
Second, some legal scholarship is directed at the Executive Branch, Congress, or administrative agencies. These papers will be of no interest to courts or most practitioners. For instance, I have an article coming out soon on “Reforming the Filibuster.” That article is not less valuable because it is about the Senate.
Third, a significant amount of legal scholarship is devoted to “basic research” such as philosophy or history. Almost every field can be divided into applied research and basic research, and what courts and attorneys do is applied. It does not follow that because the utility of basic research (say, human anatomy) is uncertain that means it’s useless. It takes time to figure that out.
Fourth, legal scholarship is indirectly transmitted to judges through their clerks and briefs. Even if a clerk, who is usually more familiar with current law review articles than the judge, does not cite articles that he or she read, the information or analysis in there still exerts some influence on the bench memo or draft opinion. Ditto for briefs, especially for amicus briefs written by professors, which are more common nowadays.
Now I do not deny that there is plenty of legal scholarship that is esoteric or useless. That is a necessary cost of academic freedom to some extent, and also reflects the more interdisciplinary nature of the legal academy since the 1960s. (In other words, the more subjects that are under the law umbrella, the more apt one is to think that a given aspect not your own is a waste of time.)
May 26, 2011 at 8:50 am
Posted in: Law Practice
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Responses (30)
Kevin Jon Heller - May 26, 2011 at 9:03 am
Gerard,
Great post, but I think your statement about interdisciplinary work is extremely overbroad. Law and literature might not have much impact on practice, but law and psychology and law and economics certainly do. My dilettantish forays into the cognitive psychology of criminal law, for example, have been cited by courts and in appellate briefs with some regularity. I can’t imagine I’m alone in that.
Gerard Magliocca - May 26, 2011 at 9:07 am
Well, I’m not saying that courts won’t cite interdisciplinary work. I meant that the trend towards that kind of scholarship creates more room more those with a different point of to disparage what is being written by scholars.
Doug Richmond - May 26, 2011 at 9:42 am
You make very good points, but Justice Roberts’ comment resonates with practitioners and lawyer-legislators everywhere, and those groups are important law school constituents. I have great respect for law school faculty as a whole, but you must be aware that you are viewed by many lawyers and judges as being out-of-touch with the practicing bar. I know that this is not a new concern, and that other judges (such as Judge Edwards) have been variously critical of legal scholarship, but given the current environment and what the future is likely to hold, it is not sufficient for law professors to dismiss such criticisms as exaggerated or misguided.
Gerard Magliocca - May 26, 2011 at 9:45 am
Doug,
This raises the question, which might make a good symposium here actually, of what you think law professors should be writing about.
Ian Weinstein - May 26, 2011 at 9:52 am
Work by David Schwartz and Lee Petherbridge suggests a marked increase in the frequency of citations to legal scholarship in reported opinions of the Courts of Appeal in recent years. See, The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study, 96 Cornell Law Review ___ (forthcoming 2011). The facts belie the rhetoric and suggest these comments have some other basis. No American public figure ever went wrong bashing pointy headed intellectuals, particularly when they themselves are unusually sharp and need the cover.
Doug Richmond - May 26, 2011 at 10:18 am
What should law professors be writing about? If the data in the forthcoming law review article cited by Ian Weinstein are reliable, perhaps the practitioners’ and judges’ perceptions I described are at least partly inaccurate. In any event, it is worth posing this question to, say, Justice Roberts and Judge Edwards, and others with critical views of the value of legal scholarship. It is not sufficient to debate the subject only among law professors. If Justice Roberts’ perception is inaccurate, the academy must be prepared to demonstrate that if and to the extent possible. Moreover, you seem to concede that at least some legal scholarship is “esoteric or useless.” How do you discourage the production of such scholarship? It is no answer to say that you have to wait several years to see whether that perception will prove to be true, because I expect that many articles that might be so characterized can be spotted in the formative stage. Long story short, I do not have good answers, or perhaps even any answers, but this is a serious issue that law schools have to be prepared to tackle given the current (and likely future)climate.
Shag from Brookline - May 26, 2011 at 11:01 am
My private practice started back in 1954. I soon found out that there was much, too much, to be learned after law school, including new federal and state statutes, new federal and state cases, new areas of legal practice, etc, for which articles in legal periodicals could provide a faster focus and background. As a member of the ABA and certain of its sections, their publications (mostly by practicing attorneys) were most valuable to me in the areas of corporate, tax, business and anti-trust laws, so that I did not have to reinvent the wheel. Law review articles were also helpful, but not as helpful as those of practitioners. In my retirement, I relish the readily available articles on SSRN; but I have a lot of time on my hands. As for CJ Roberts’ comment, I can appreciate that he may lack the time to read that much from academia in doing his day job. Query whether Roberts checks out legal blogs such as this?
Bruce Boyden - May 26, 2011 at 11:41 am
Following up on Ian’s comment: “The facts belie the rhetoric and suggest these comments have some other basis.” I suspect that it’s boundary marking. It’s not that there is a net decrease in the utility of legal scholarship as a whole. (Complaints on THAT are old. Here’s Fred Rodell from 1936: “There are two things wrong with almost all legal writing. One is its style. The other is its content.”) It’s that various judges and lawyers see some article in the Harvard Law Review or Yale Law Journal and think to themselves: “What is THAT doing in a law journal?! That never would have been published when I was a lad! [Insert Monty Python's Four Yorkshiremen sketch here.]“
Orin Kerr - May 26, 2011 at 12:27 pm
I think the Chief Justice’s point is that it is relatively uncommon for legal scholarship to grapple with the internal materials and concerns that lawyer and judges grapple with. As a result, it doesn’t help lawyers and judges solve the kinds of problems that lawyers and judges solve given the norms of lawyering and judging. If that’s his point, it strikes me as basically correct.
Logan - May 26, 2011 at 1:58 pm
This post reminded me of this video on YouTube about getting a ph.d in political science. It’s worth a watch.
http://www.youtube.com/watch?v=idHQoCUfPZ4
Jarod Bona - May 26, 2011 at 6:27 pm
I am an antitrust attorney, and I find academic antitrust articles very useful (as well as interesting). I regularly read them and will, in the right circumstances, cite them. If you read Leegin (which overturned a century-old precedent), you will notice that the Court cites many academic (mostly economic) articles.
Antitrust, however, is unique in many ways.
Gerard Magliocca - May 26, 2011 at 8:05 pm
I must say that I’m pleased to see that we have a healthy mix of practitioners and scholars reading CoOp!
TJ - May 26, 2011 at 9:17 pm
I think Orin is making an important point that professors rarely ever deal with “internal” legal materials. It is a function of the “we are all legal realists now” effect — we just don’t believe that the internal materials are much if anything beyond cover for other decision-making processes occurring under the hood. But I disagree with Orin that judges, or at least Supreme Court justices, actually “grapple” with the internal problems in any serious sense, since by hypothesis the internal doctrine is just cover. In this sense, the complaint by CJ Roberts is actually something academics should resist rather than take seriously. To the extent that you think that Supreme Court justices are mainly using doctrine as cover, what CJ Roberts is doing is calling on you to reinforce the deception rather than expose it. Obviously he has a reason to make that call, but academics have no reason to comply.
Dan Cole - May 26, 2011 at 10:18 pm
The is, and always has been, a great deal of doctrinal legal scholarship of direct relevance and substantial practical utility to judges and lawyers. But why judges and lawyers should presume that they are the only, or even the most important, audience for legal scholarship? Much of what they write is irrelevant to my work. Why should my work always be relevant to their’s?
Dan Cole - May 26, 2011 at 10:20 pm
Apologies for the grammatical error in my previous post.
A.J. Sutter - May 26, 2011 at 10:28 pm
Though I do read some legal academic writing when I’m wearing other hats, speaking qua practitioner I agree with the CJ and I think I agree with Orin, even though I’m not sure I know exactly what “internal” materials are. And I share Shag’s experience of finding practitioner-written materials useful, though I never had as much luck with law review articles, perhaps because I’m in transactional practice. (One occasional exception: some comparative law articles giving a quick description about foreign law, e.g., EU licensing directives, Japanese M&A law, Chinese JVs, etc.)
When I was an in-house counsel, BTW, because of time demands I relied primarily on print, later email, newsletters from major law firms to alert me to changes in the law or significant new cases — and even some of those materials (esp. from British lawyers & their ilk, e.g. Singaporean) took too long to get to the point. They included newsletters from firms of which I wasn’t a client. I still subscribe to email newsletters from several multinational firms. My guess is that this information channel hasn’t received much academic attention.
Orin Kerr - May 26, 2011 at 10:58 pm
TJ,
I suppose I’m just channeling my experience as a law clerk: During my clerkship, I saw judges (one year) and Justices (another year) try to work through some very hard legal questions. They each operated with a set of internal constraints which you might of as the judge’s worldview — what they thought about whey they were deciding hard cases. Very little legal scholarship actually speaks to that worldview that the judges have. Very little scholarship tries to engage with that worldview and help the judges/Justices in light of it.
TJ - May 27, 2011 at 12:18 am
Orin, I shared at least the lower court experience as a law clerk, and I admit that my views on legal realism have changed considerably since that time. As a law clerk you think you are taking existing precedent and statutory text quite seriously, the worldview that you speak of. But the whole point of legal realism is that this is an incomplete story. For example, as a clerk writing an opinion, if you found some adverse cases you would be obliged to deal with them. But you are much less likely to find the adverse cases than the supportive cases (for the result that has been predetermined at the conference), because your Westlaw search terms are configured to find the supportive cases. Dissents and opposing attorneys mitigate this to some degree, but the point is there is a latent bias even without conscious bad faith.
As for helping the judges, this is the point where I think the academy quite rightly should resist the call, because there is actually a significant conflict between judge’s personal interests and the public interest. For CJ Roberts, an academic analysis of whether he will vote to uphold the healthcare law is an utterly useless piece of information. What he wants is articles telling him the easiest method of playing with doctrine to reach whatever his desired predetermined result goes, which then save him work. For the public and academics, how CJ Roberts will play with doctrine is–if not utterly useless–at least of secondary importance; the really interesting and important part is figuring out whether he will vote to uphold it.
I think David Bernstein wrote a post at VC a while back criticizing you and Randy for debating incessantly the doctrinal mechanics of the healthcare issue, when everybody knows that this is not what is going to matter outcome-wise. I believe your response was that the analysis is fun, which may be true. Tellingly, however, I did not see a justification that the doctrinal analysis would “help” the judges play with doctrine–though I am sure that both the liberal and conservative justices finds the doctrinal posts more “helpful” than David’s.
Shag from Brookline - May 27, 2011 at 10:21 am
During the 1920s, ’30s, ’40s, I think Justices did read – and react to – writings of constitutional scholars, as evidenced by correspondence between them. My con/law prof (fall of 1952) Thomas Reed Powell knew – and often criticized – many of the Justices during those years, illustrated by his correspondence with Justice Douglas and of course his exchanges with his once law faculty compatriot Justice Frankfurter. Perhaps in those days there were fewer constitutional scholars and fewer constitutional issues (after the New Deal Court nestled in 1937). Perhaps potential conflicts today limit correspondence – and other contacts – by and between Justices and academics. In the “old days,” there were fewer clerks; in contrast, it seems that the route to a con/law academic position today may “require” a clerkship; and how many such former clerks in academia pointedly criticize particular Justices in support of the Justices they served? Transparency today is more clear than in the “old days,” except for occasional duck-hunting trips.
Orin Kerr - May 28, 2011 at 12:33 pm
TJ writes:
******
But you are much less likely to find the adverse cases than the supportive cases (for the result that has been predetermined at the conference), because your Westlaw search terms are configured to find the supportive cases. Dissents and opposing attorneys mitigate this to some degree, but the point is there is a latent bias even without conscious bad faith.
******
Really? When I was a lower court clerk, the research was all done long before there had been a conference or a sense of what was the right or wrong answer.
As for your view of the Supreme Court, it’s quite different from my view of the Supreme Court. It’s true that the Supreme Court doesn’t blindly follow doctrine in every detail, but doctrine defines the basic parameters from which the Court works.
TJ - May 28, 2011 at 3:38 pm
Orin, you are telling me you never did a single Westlaw search when you were writing the opinion and did it *all* beforehand? Indeed, that you finished *all* your research before you even had a sense of the right or wrong answer? You never went, “geez that argument seems very stupid, let me see if I can find a case to refute that”? Maybe that is how you worked, and more power to you for that. But it is certainly not how I worked, and it is not how I observed anyone else working.
andy - May 28, 2011 at 7:17 pm
Legal realists seem to illustrate the “liars don’t believe anyone else phenomenon. If one decides issues based on personal preferences and not based on statutes/doctrine etc., he tends to assume that everyone else is inclined to use doctrine only to reach a predetermined result.
Others (and I’d put myself in this category) believe that statutes, precedent, and so on actually mean something and more often than not will point to a resolution of an issue that will fit more neatly into the body of existing law (that is, there is often an objectively “right” answer, or, at the very least, there is often an objectively better answer).
As a tax attorney, for example, I and my colleagues spent countless hours trying to determine the right answer, regardless of whether the answer was what the client wanted and though people on our team had wildly divergent views on what the proper policy outcome should be. Based on this experience, it’s not hard for me to believe that there are many similarly-minded persons sitting on the bench and that these judges would, in fact, appreciate a better understanding of the relevant doctrinal framework, for purposes besides assisting in manipulation.
Also, while I think it’s perhaps easier and perhaps fairer to find that how a SCOTUS justice votes on a politically charged issue based on personal preferences, the vast majority of open legal issues involve duller questions, even to those immersed in a field. To take one example from the tax context, there are various recurring ambiguities in how to calculate net unrealized built in gains on a loss company in a Section 382 transaction. In wrestling with these issues and in reading judicial opinions examining related issues, I never got the sense that the relevant interpreter reached a predetermined result on how to make the appropriate calculations and then wanted to manipulate the statute, regulations, admin guidance, and so on on to reach a predetermined answer. And, I think the large body of academic and practitioner scholarship on Section 382 actually helps judges and practitioners resolve these issues and is not a fool’s errand.
I also agree with Orin about not performing research with an eye on simply refuting a proposition with which I initially disagreed. I prefer to perform research from the ground up, becoming familiar with the background law and learning both sides, rather than assuming a particular result and then performing research to buttress that result. Pre-configuring a search result to find only things that help you seems, at best, irresponsible and wreckless, and, at worst, an instance legal malpractice.
TJ - May 28, 2011 at 7:45 pm
Andy, you are misunderstanding what I am saying. I am not saying that I *only* (or even predominantly) did research with an eye to a predetermined result. I am saying that even if that only occurs 10% of the time, that will be 10% bias in the process. And then it snowballs very quickly. *Especially* in a system of stare decisis where prior biased results induce future biased results. So unless you take Orin’s position that he does *all* of his research without such possibility of such bias, then it does not work.
TJ - May 28, 2011 at 8:07 pm
And I should add one last note. Andy mentions that doctrine has far more explanatory power for “dull” issues in lower courts, and I agree with that. And so scholarship focusing on dull issues should pay much more attention to doctrine, because there is is closer to truth. But legal academics are interested precisely in the highly charged issues that get decided by the Supreme Court, and this is not an entirely bad thing since those are the issues that are the most “important” by social consensus. So if the call is for more doctrinal scholarship only on the “dull” issues, then that will not work for entirely independent reasons of the advance of legal realism.
A.J. Sutter - May 28, 2011 at 10:17 pm
So TJ, your position seems to be: (i) as to “dull” issues, the CJ is right that legal academics avoid doctrinal scholarship, but due to the sociology of law profs and their interests, a call for change is (a) futile, and (b) perhaps would make academics’ research less helpful to society by leading academics to shift their focus away from what is most “‘important’ by social consensus” (@#24); and (ii) the CJ may be right that academics avoid doctrinal scholarship on the “charged” issues, too, but due to the Court’s insincere use of doctrine, a call for change is unethical (@#13). In sum, you seem to be saying, the CJ is right on facts, but wrong on values. Fair summary?
It’s precisely because law profs aren’t interested in the “duller” issues that make up law practice for most practitioners that I agree with the CJ as to the uselessness of most academic scholarship. And the proposition that legal academic writing (sc. considered as a body of output, rather than isolating some individual works or a minority fraction of the oputput) focuses on what is most “important” by social consensus seems, as critical theorists like to say, contestable.
TJ - May 28, 2011 at 11:33 pm
AJ, to the extent that you mean that CJ Roberts is right that legal scholarship rarely focuses on what Orin would call “internal” materials or doctrine, I think that is self-evident. But my point is not that doctrinal scholarship is unethical, but that non-doctrinal scholarship is not useless as CJ Roberts argues. And I certainly don’t want to go too far in the other extreme in arguing that legal scholarship has everything just right in terms of focus and balance. What I do want to resist is the argument that academics should basically be writing amicus briefs posing as articles all day long.
Orin Kerr - May 29, 2011 at 11:53 am
TJ,
************
Orin, you are telling me you never did a single Westlaw search when you were writing the opinion and did it *all* beforehand? Indeed, that you finished *all* your research before you even had a sense of the right or wrong answer? You never went, “geez that argument seems very stupid, let me see if I can find a case to refute that”? Maybe that is how you worked, and more power to you for that. But it is certainly not how I worked, and it is not how I observed anyone else working.
************
TJ, did you by any chance clerk on the Ninth Circuit?
Orin Kerr - May 29, 2011 at 11:56 am
(Oh, and yes, of course I did all the research beforehand: deciding first and researching later is like a doctor giving a diagnosis first and only then examining the patient.)
Anon - May 29, 2011 at 10:02 pm
I concur with Dan Cole.
TJ - May 29, 2011 at 10:33 pm
Orin, no did not clerk for the Ninth Circuit.
On your second point, you are presenting a false dichotomy. The opposite of doing *all* of your research before you form an opinion is not doing *no* research before you form an opinion. To take your doctor analogy, what you are saying is that if you were a doctor you would finish *all* of your tests before you can even start suspecting a diagnosis. No doctors work that way, and no law clerks that I know do either.
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