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.)