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What is “Practical” Scholarship?

Corey Yung

Corey Rayburn Yung is an Associate Professor at the University of Kansas School of Law. His scholarship primarily focuses on sexual violence, substantive criminal law, and judicial decision-making. Yung’s academic writings have been cited by state and federal courts, including the Supreme Court of the United States. Before Yung began his professorial career, he served as an associate for Shearman & Sterling in New York and clerked for the Honorable Michael J. Melloy of the United States Court of Appeals for the Eighth Circuit.

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5 Responses

  1. Larry Rosenthal says:

    I believe that this post misunderstands the nature of the critique. Successful lawyers are busy people. They too often lack the time to think deeply and critically about legal doctrine and identify the best arguments for moving doctrine in one direction or another. Practitioners writing those briefs in which Professor Yung seems to repose so much confidence look to legal scholarship to help them shape their own approach. Increasingly, however, it is difficult to find legal scholarship that speaks the questions faced by lawyers in practice. I found this to be an enormous problem when I was a practioner with a sophisticated appellate practice, as did, most likely, highly successful appellate practitioner John Roberts.

    Perhaps it is true that most legal scholars are content to write articles of interest only to themselves, but for just that reason, they should not be surprised that practitioners — who address real legal problems on a regular basis — find such scholarship arid and useless. Among practitioners, it remains true that the life of the law has been experience, not logic (which likely explains the citation pattern that Professor Yung has observed). Among our increasingly inexperienced professiorate, not so much.

    Larry Rosenthal
    Chapman University School of Law

  2. Corey Rayburn Yung says:

    I think that one of the difficulties with the critique is that there are many different audiences for legal scholarship. In my post, I was primarily focused on judges as the audience. For Supreme Court Justices, I think the amount of effort put into the briefing is such that legal scholarship of a doctrinal sort is largely superfluous to them (and is reflected by the Chief Justice’s statements). I think the argument for the usefulness of doctrinal scholarship to practitioners and lower court judges is much stronger. However, at least if cites are any indication, my impressions are that lower courts don’t care about doctrinal analysis in law reviews as much as they do about things unlikely to be found in briefs.

    For example, an article that I wrote of an entirely doctrinal variety about the Adam Walsh Act was cited by a couple district courts. However, in both instances, they cited the factual components of my article about the history of the legislation and litigation. I think that is fairly typical. Judges, either rightly or wrongly, feel that they can handle the legal analysis on their own, but scholarship gives them insight into things being their expertise.

    As to practitioners, I expect they do find most legal scholarship to not be directly applicable to their work. However, there is a lot of doctrinal scholarship out there as well that I would hope they notice. There are also other audiences for academic work. I think one of the most underestimated groups that consume legal scholarship (often indirectly) are people working in the legislatures. Real policy change can often be helped by legal scholarship.

    Law reviews cannot be all things to all people, but I think it is simply wrong to say that academics are primarily satisfied with talking to themselves. And when the Chief Justice stated that the, “first article [in law review] is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something” he really revealed that he doesn’t know what is being written about in most law reviews. There are a lot of different types of legal scholarship with different value for different audiences – I think the critiques largely focus on the particular portions of legal scholarship that the critic finds valueless.

    Corey

  3. Sam Bagenstos says:

    For a data point about how scholarship can be useful to judges, see Judge Bates’s terrific opinion today upholding Section 5 of the Voting Rights Act in Shelby County v. Holder. The opinion cites articles by Professors Hasen, Issacharoff, Karlan, Persily, and Pildes, as well as my own Dean Caminker and my colleague Professor Kats, among others. I can tell you that, in preparing the briefing and argument in that case, and in many others, sources like these were quite helpful. Much of the scholarship Judge Bates cited today was also quite relevant to, and relied upon by, Congress in extending Section 5. I’m with Corey that good scholarship doesn’t have to be directly useful to legislatures and courts to be good or important (much of the best scholarship is not, but it does advance our understanding of legal reasoning, legal institutions, and the subjects and effects of law, whether as something akin to basic research or something else), and I’m with Larry that a lot of scholarship is dreck (though I think that’s true for a lot of “practical” as well as a lot of “theoretical” scholarship), but there’s a lot of really good scholarship, by highly regarded people at highly regarded schools, that has proven to be directly relevant to judges and legislators.

  4. Sam Bagenstos says:

    Of course I mean Professor Katz.

  5. Jordan J. Paust says:

    There is no necessary chasm between the practical and theoretical. I have had two articles quoted in different Supreme Court cases (Hamdi and Hamdan) and I hope that they were of more than practical value. I have at least one nice note from a Justice to that effect, one who has not cited anything that I have written (yet), but who has actually read some pieces that I have written!
    In any event, what does the Chief Justice read when he proves that he knows little about certain portions of the U.S. Constitution when he declares five times in an opinion that treaties are ratified by the Senate or Congress (in Medellin) — they are ratified by the President, of course, if the President so desires after having obtained advice and consent of 2/3 of the Senate.

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