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The Relationship Between Theory and Practice

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7 Responses

  1. Re: point 8, I think Frank Easterbrook put this quite well in an old article in the University of Colorado Law Review:

    “A free mind is apt to err– most mutations in thought, as well as in genes, are neutral or harmful– but because intellectual growth flows from the best of today standing on the shoulders of the tallest of yesterday, the failure of most scholars and their ideas is unimportant. High risk probably is an essential ingredient of high gain.”

  2. It’s rather discouraging that such things need to be said (in other words, that so many otherwise intelligent or well-meaining folks need to hear them) but I trust I’m not the only one grateful you’ve taken the time to say them.

  3. A.J. Sutter says:

    My comment a few minutes ago to your “Usefulness” post might have been more apposite here other, but in summary: Claim (1) reflects the way in which many practitioners actually do use articles, when they use them. 1000:1 dross-to-gold seems subjectively too small a ratio, but more importantly it seems as if this ratio has grown bigger during the decades. It’s fine to say there were lots of crappy paintings for every Mona Lisa, but actually the communities like Florence and Rome were much smaller back then, so the masterpieces may have been more salient. This ratio is more the issue than is the existence of useful articles (theoretical or otherwise), which seems to be the focus of your argument, and which of course is undeniable, for the reasons you mention. When the ratio is too big, you lose experienced practitioners as an audience, because they just figure it’s a waste of time to read the literature (and the perceived ratio becomes effectively infinite). It’s primarily the most junior practitioners who can be reached.

    Unfortunately, the perception of usefulness and the actual usefulness are causally connected, if we’re talking about usefulness in some kind of frequentist or other quantitative perspective. Otherwise we could say, e.g., that the 1890 privacy article was worth all the junk that came before it and after it (thinking of its consequences), and end the argument there.

  4. Brett Bellmore says:

    But suppose that in practice, the actual function of legal scholarship is just to provide results oriented judges with a comprehensive library of prefabricated rationalizations for whatever they already want to rule? Is that actually a valuable service to the larger society?

  5. Bob Loblaw says:

    Thank you for a thorough response (both here and in the other post).

    I would would ask how many of these functions you cite in the absence of the current law review system wouldn’t be performed by treatises, legal blogs, or student notes (assuming professors stopped getting paid to produce articles, but the journals remained in place). For example, the treaties Search and Seizures (2.7(e)) has quite an excellent section on GPS tracking devices (which admittedly cites a few law review articles).

    I would also still be curious to hear you point me to one law review article in the past couple of years you would point to as being worth a read to “open up new ways of thinking” and the like. I’d love something interesting to read on my flight home for winter break. I take your point that practical effects are hard to measure immediately, and that creative endeavors have a high failure rate, but if intellectual stimulation is a function that is adequately performed by law review articles, surely one good article every couple of years isn’t too much to ask?

  6. Larry Rosenthal says:

    There is much merit in this post and it is easy to take the critique of theory and the demand for “practical” scholarship too far. There are, however, also dangers in the approach taken in this post. Presuming the value of legal scholarship while rejecting demands for any reasonable rigorous demonstration of its value can also be an excuse for a kind of knee-jerk conservatism that fails to give fair consideration to even the most powerful arguments for change.

    One could make many of Professor Solove’s points about any kind of theoretical scholarship. Such scholarship obviously has its place, but the market also produces much less theoretical scholarship concerning, say, philosophy as opposed to law, largely because the market has a limited willingness to finance scholarship without demonstrable utility. It may be that what we are seeing know is the beginning of the market’s backlash against the overproduction of theoretical scholarship in an area that has as its principal economic utility its function as a trade school.

    Beyond all this, I wonder if this post may inadvertantly slight one of the greatest insights of one of the greatest legal scholars. Holmes taught us that the life of the law has not been logic, but experience. Theoretical scholarship written by those with little experience of the practical realities in which law operates may often be of limited use, even in the terms described in this post.

    Larry Rosenthal
    Chapman University School of Law

  7. Orin Kerr says:

    Dan, I worry you may be attacking a straw man. You argue that there is value in scholarship that points out errors in judicial thinking, or that offers profound new ways of thinking about the law. Who disagrees with that?

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