My colleague and CoOp guest blogger Professor Sherrilyn Ifill has written an insightful post responding to Chief Justice Roberts’s comments at the Fourth Circuit Judicial Conference. I’m including her post below. Thanks, Professor Ifill!
In response to a question at last weekend’s Fourth Circuit Judicial Conference in White Sulphur Springs, West Virginia, Chief Justice John Roberts expressed his agreement with the views of D.C. Circuit Court of Appeals judge Harry Edwards, who has long argued that the scholarship produced by today’s law professors is largely irrelevant to judges. In fact the Chief Justice doubled down on Edwards’ argument that legal academics focus their scholarly attentions on matters that more concretely assist the judiciary and legal decisionmakers in understanding and working with difficult areas of law practice. Roberts contended – jokingly albeit – that too often the average law review article will be focused on “the effect of Kant on the evidentiary rules of Bulgaria.” The line got a laugh. But it wasn’t very funny. It also wasn’t very true.
Legal scholars will on occasion indeed take up Kant (and there’s no shame in that), but more often than not, published law review articles offer muscular critiques of contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decisionmaking on how law develops in the courtroom. Such scholarship can assist judges in explaining complex legal doctrine, but also in working through the application of that doctrine to modern legal controversies. Take, for example, the work of my colleague Renee Hutchins, who in her 2007 article Tied Up in Knotts: GPS Technology and the Fourth Amendment, 419 U.C.L.A. L.Rev. 409 writes about whether and how the use of GPS devices by law enforcement should be assessed under the Fourth Amendment. Her article was so illuminating in exploring this underdeveloped area of law that Judge David Tatel on the D.C. Circuit Court of Appeals cited it in last year’s U.S. v. Maynard, in which the court unanimously held that the police use of GPS tracking on a criminal suspect over several weeks constitutes a “search” and requires a warrant. Read More