What is “Practical” Scholarship?
posted by Corey Yung
Due to a public comment by the Chief Justice and as a side issue in the ongoing ScamProf debacle, the criticism that legal scholarship in law reviews is worthless to real lawyers has reemerged with a vengeance. As someone who enjoys doctrinal, empirical, theoretical, and completely esoteric scholarship, I’ve struggled to figure out why people in these discussions essentially equivocate doctrinal with practical. Why would Chief Justice Roberts think that a doctrinal article in a law review which might be out of date by the time he reads it is better suited to persuade him than the extensive briefing in the case he is reviewing? For Supreme Court Justices, who have party and amicus briefs so numerous that they don’t read them all, it seems strange to want law reviews to become redundant with other materials that they don’t bother to review.
For lower federal courts, the situation is a bit different. There, I think a strong case can be made that doctrinal scholarship can play a substantial role. Yet, when I have looked through cases that cite law reviews, it seems like the propositions cited are rarely doctrinal in nature. As someone who reads more federal cases for my scholarship than any sane person should, it seems as though law reviews are most often cited for propositions other than legal argument. At least if citations are a good proxy for the utility of law reviews for courts, it appears like the far more used portions of law reviews concern factual, empirical, or historical claims. Even broad theories of law seem to receive more attention than strict doctrinal points. Of course, no one has really studied this issue to confirm my impressions, but, to me, law reviews are most “practical” when they fill a niche distinguishable from other forms of legal writing. Why would anyone want a law review to simply become a legal brief (even one that was more even-handed than the average party brief)? I think many of these complaints about legal scholarship are simple railings against academia, but when they are made by people like Chief Justice Roberts they take on special significance. Although the Chief might not read law reviews in their current form, I hope for the sake of scholarship that he doesn’t get his wish to make them “practical” as he understands the concept.
September 19, 2011 at 10:52 pm
Posted in: Courts
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Responses (5)
Larry Rosenthal - September 20, 2011 at 10:56 am
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
Corey Rayburn Yung - September 20, 2011 at 12:34 pm
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
Sam Bagenstos - September 21, 2011 at 11:42 am
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.
Sam Bagenstos - September 21, 2011 at 11:43 am
Of course I mean Professor Katz.
Jordan J. Paust - September 21, 2011 at 3:10 pm
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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