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How Much Should Legal Scholarship Aspire To Being Cited by Judges?

I love getting cited by judges, and I write most of my articles aiming to be at least potentially useful to judges. But I'd be hesitant to insist that all or even most of my colleagues should take the same view. While legal scholarship should be as clear, as thoughtful, and as useful as possible for its theme, there are many themes that are eminently legitimate despite being not helpful for the decision of actual cases.

Consider one example: legal history. Some legal history may be relevant to legal decisions (for instance, when it elucidates the original meaning of some text, and when the original meaning is relevant to some case). But some may not be, for instance because it deals with history that's too old (for instance, the evolution of English property law), history that's no longer legally relevant (for instance, how law dealt with women's rights in the 19th century), or even constitutional topics where courts don't much focus on original meaning (for instance, courts very rarely look to the original meaning of the Free Speech Clause, probably because so much fairly well-settled precedent has arisen since then that even judges who are sympathetic with originalism tend to be reluctant to return to first principles).

Should we reject, or even deprecate, legal history because it's not relevant enough to courts? Aren't there other ways history can be useful -- even if those are just a better understanding of what happened in the past, how our legal system came to be as it is, and what we might want to avoid in the future (even if it's not up to courts to avoid it)? I suppose one could argue that legal history is a legitimate field, but that it should be published only in history journals, not in law reviews. But why would one want to take that view?

Or consider another example: articles that are aimed at suggesting legislative or regulatory changes. Perfectly legitimate, it seems to me, despite not being aimed at judges. Some of those articles may mix in other disciplines, such as economics. Some may mostly use traditional legal reasoning, which is a mix of moral judgment, intuitive empirical predictions, and analysis of past precedent without much deference to that precedent. But in any event, they are perfectly legitimate attempts at law reform -- just not law reform that you expect the judiciary to accomplish.

Finally, and here I realize I'm moving to more controversial ground, there are articles that are aimed at promoting an academic conversation about why the law is the way it is, what the law should be (even if the changes of legislative or judicial revision to make it that way are slim), how judges and lawyers think about the law, how law is taught, and more. These may be "theoretical," but why shouldn't people who think about law be as free to theorize in ways that they think can help others think about law, just as historians, anthropologists, linguists, and others are free to do so? Why should there be a demand that law be a purely practical discipline, either in the sense of always having an immediate payoff in court decisions or in the sense of always focusing on uncovering specific facts rather than setting up theoretical frameworks that help us understand the facts?

No-one demands that paleontology, theoretical mathematics, or history be immediately relevant. Sometimes even theoretical work in those disciplines has surprising applications (as is the case in law as well), and that's great; but developing new knowledge and ideas for understanding knowledge is, I think, a worthy goal of the academy even if few practical benefits emerge from this.

This having been said, I should acknowledge what should be obvious: We surely ought to criticize legal scholarship that is badly reasoned, badly written, or even not as useful as it could be with some simple changes (e.g., an article that doesn't live up to its potential because it fails to make clear some important implications). We certainly can aspire to practical relevance as well as theoretical interest in our own work, as I generally do. And funders of academic pursuits can consider the practical relevance of an academic field's output, as an aspect of that field's social utility, in deciding how much they should fund that field (though it's not clear to me that citation by courts is the proper metric of social utility).

But we shouldn't, it seems to me, insist that all or even most legal scholarship be aimed at judges, or see certain genres' lack of desire to influence judges as a sign of those genres' inherent flaws. (Oddly, lack of ability to influence judges given the desire to do so may be a sign of a flaw, if the lack of ability stems from the scholars' failure to make their articles as useful as possible given the articles' themes -- though it may also be evidence that the authors are trying a more ambitious form of law reform than judges are prepared to accept, a goal that is not itself unworthy.)

elChato (mail):
Doctrinal analysis, i.e. plowing through a line of cases and pointing out inconsistencies, is the kind of scholarship most useful to judges and practicing lawyers, but this is now done more by second and third-tier schools if at all. Law professors in general now seem to write more for other law professors than other audiences, especially at the best schools.

I agree that usefulness to judges and practicing lawyers is not the sole criterion. But I suspect that most of the kind of scholarship in vogue today will go basically unread and not be much help to anyone (see "Friendship &the Law" in the current edition of the UCLA Law Review- "After defining the concept of the friend, I offer a normative argument for why the law should promote a public policy of friendship facilitation and for why the law ignores friendships only at its peril").
3.19.2007 1:53pm
A.C.:
A lot of lawyers work in legislative or regulatory environments, so keeping them in mind as a potential audience seems perfectly reasonable. And legal history is just interesting, at least to geeks of a certain kind.

As for more theoretical pieces, I'm generally in favor. Even writing about stupid ideas serves a purpose -- it lets people know the ideas are stupid. Squelching a bad idea can be as important as promoting a good one, and it isn't ALWAYS obvious which is which at first.

Even facilitating friendship isn't as bizarre as all that. Law facilitates a lot of voluntary relationships on the theory that they are good for society as a whole. I'm not sure why responsibility for friends is less important to society than responsibility for relatives, and I would certainly be open to hearing arguments on the subject.
3.19.2007 2:07pm
anonVCfan:
"we shouldn't, it seems to me, insist that all or even most legal scholarship be aimed at judges, or see certain genres' lack of desire to influence judges as a sign of those genres' inherent flaws"

Certainly, but the debate, it seems to me, is about whether judges should cite legal scholarship that is aimed at them.
3.19.2007 3:00pm
andy (mail) (www):

"Or consider another example: articles that are aimed at suggesting legislative or regulatory changes. Perfectly legitimate, it seems to me, despite not being aimed at judges."


The problem is not necessarily that law professors are writing in other fields; the problem is that they are not qualified to do so and the resulting work product is of low quality. If one wants to write about the ideal tax system, that is great and useful -- but submit it to the American Economic Review, not a bunch of Harvard 2Ls who will not be able to point out the empirical flaws in the work.
3.19.2007 3:01pm
Eugene Volokh (www):
elChato: I haven't read the UCLA Law Review article you mention, but the brief description you give doesn't strike me as showing that the article is practically irrelevant. How the law should treat friendship -- and felt duties of loyalty stemming from friendship -- is an important question that arises in various contexts.

For instance, one question raised by laws that require people to report crimes they observe is that those laws would legally obligated friends to turn in their friends, and allow friends to be prosecuted for not doing so. In fact, some of these laws have exceptions for close relatives. Whether there should be similar exceptions for friends, or, if such exceptions would be administrable, whether the laws' tendency to punish friends for not turning each other in should be a factor against enacting the laws in the first place, seems like a pretty interesting and moderately important question.

Likewise, the degree to which various laws, including conspiracy law, gang law, and the like end up allowing the punishment of people for simply hanging around with friends, even when they provide virtually no real assistance to the friends' criminal actions, strikes me as an important matter. Again, I haven't read the article, but that too would fit within the description you give.
3.19.2007 3:05pm
ER:
Isn't the emphasis on practicality because the law is a second-order kind of thinking? Unlike philosophy, mathematics, or history, legal thinking is always derivative of some other realm of thought (like philosophy, mathematics or history).
3.19.2007 3:12pm
frankcross (mail):
That's a strange example, elChato. The friendship article in question has a respectable doctrinal component, in which it argues that the law should recognize a status of friendship that alters legal obligations (such as rescue, fair dealing) and rights.
I'm not really persuaded, but it could potentially be used by judges as a source for a major doctrinal principle. Did you read the article?
3.19.2007 3:38pm
Kovarsky (mail):
the idea that law review articles need to fill some sort of information void is ridiculous - treatises do that. i would argue that the decline in article citation has more to do with the rise of the electronically indexable treatise than it has to do with substantive changes in the law.

the diminished role of citation is also, i think, a product of the shifting perception of what a judge should be. judges now are much less likely to undertake decision making on the basis of broad theoretic ambitions, and therefore more likely just to "line up the cases," so to speak, which they don't need an article to help them do.

in fact, if i were to identify what i perceive to be a shortcoming in law review articles, it's TOO MUCH of a tendancy to associate the thesis with doctrine. that's not to say that it's not often warranted, but it is to say that i don't think there's enough scholarship out there about the meta-principles we use to decide cases. the most interesting articles are those that contain insights that transcend the boundaries of a particular doctrine and speak generally to the way we process legal relationships, etc. a court is never going to cite a critical legal scholar, but they sure had interesting stuff to say.

the second biggest problem is not that the law reviews are student edited, it's the stupid emphasis on form. that has started to change somewhat (with the 35K limits on articles adopted by most of the top journals), but there's still a problem with rigid application of rules of grammar and style that, well, sucks.

and the problem with an emphasis that theses be strongly stated in terms of doctrine is that i think it encourages authors to write what amounts to the same article over and over again (i swear chris yoo has published the same article on monopolistic competition in broadband markets six times).

the green bag is really the best read.
3.19.2007 3:51pm
Billy Budd (mail):
"the diminished role of citation is also, i think, a product of the shifting perception of what a judge should be. judges now are much less likely to undertake decision making on the basis of broad theoretic ambitions, and therefore more likely just to "line up the cases," so to speak, which they don't need an article to help them do. "

Yes, I think this is a big part of it. Judges no longer think of themselves as policymakers, which means that if a prof wants to argue that a new policy should be adopted, they will write articles that appeal not to judges, but to the real policymakers: academic and bureaucratic elites and legislatures. (I don't think this is a bad thing for society, though it may be something that law reviews haven't adapted to.)
3.19.2007 4:07pm
Gideon Kanner (mail):
Two points:
First of all, Eugene, no one is suggesting that most or all law review articles should be aimed at judges. The problem is the opposite. Very few of them are, and many of those are of the Dr. Seuss' "Gerald McGrew" kind ("If I ran the zoo said young Gerald McGrew, I'd make a few changes, that's what I would do)." The problem is that most of them lack thorough doctrinal knowledge of the problems they tackle, so thank God they aren't running the zoo. Nor do most law review articles provide the sort of analytical, doctrinal information that is likely to be useful to judges. Nor do they focus on how the developing law actually impacts on the areas that are subject to the authors' discussion. Case in point from my field: much has been written lately about the use and misuse of eminent domain, but few if any commentators deal with the fact that the record is replete with land takings for redevelopment and other [public] projects that are in fact never built, or fail after construction. Nor has much been said about the fact that redevelopment has been a consistent failure -- it simply does not revitalize cities because it can't; the middle-class city inhabitants have largely moved out and are still moving out to the suburbs. Shouldn't a discussion of the law of redevelopment take note of that?
Second, no one has said anything about the elephant in the living room: the declining quality of judges. The Chief Justice's State of the Judiciary report noted with concern that only 40% of new federal judges come from private practice. The others are former government employees. At the state level the statistics are even more lopsided. Nothing wrong per se with being a former bureaucrat, but most of these people are by and large not what you might call intellectually inclined, and some lack the raw intellectual horsepower -- and the time, REMEMBER THOSE CASE LOADS -- to plumb the frequently incomprehensible prose of law review articles that the "prestige" law schools like to publish.
3.19.2007 4:52pm
Esquire:
I have to respectfully disagree with Prof. Volokh's assumption that many legal history discussions are not "helpful for the decision of actual cases" just because they may be regarded as "too old" and/or "irrelevant." Just because many originalist judges are "reluctant to return to first principles" doesn't mean that that isn't *exactly* what many scholars indeed seek.

I recently published an article arguing that a certain federal statutory provision has been consistently misinterpreted for the last 100 years. Many able "practitioners" tell me that such an argument would be absurd to attempt in "practice," but nevertheless concede that it can make for interesting "academic" scholarship. (Indeed, I wrote it hoping that courts might actually be persuaded to go back 100 years and get it "right.")

So it may be the case that some arguments are too much of a "long shot" for practicing attorneys with actual clients to rely upon, and yet perfectly valid for a scholar who can more afford to take such long shots. But this doesn't mean the scholar doesn't truly hold out hope of changing some court's mind at some point! (This may also be the case for *constitutional* originalists trying to get back to the original intent of various long-abandoned provisions.)
3.19.2007 5:06pm
andy (mail) (www):

I recently published an article arguing that a certain federal statutory provision has been consistently misinterpreted for the last 100 years. Many able "practitioners" tell me that such an argument would be absurd to attempt in "practice," but nevertheless concede that it can make for interesting "academic" scholarship. (Indeed, I wrote it hoping that courts might actually be persuaded to go back 100 years and get it "right.")


Esquire--

Your article sounds like actual legal scholarship. I can't speak for Mr. Volokh, but your article doesn't come to mind when I one things of irrelevant historical scholarship.
3.19.2007 5:44pm
Justin (mail):
Andy makes an important point, although there is a difficult line (as well as a counter-problem, for when the academic journal in question lacks the suitable legal basis).

I think the answer is to encourage more interdisciplinary work in peer-reviewed, law-professor-edited journals, rather than student-run journals - and, of course, to also focus on interdisciplinary-focused student-run journals that will attract students who may have at least some of the neccesary background to review the article properly.
3.19.2007 6:15pm
Bill Poser (mail) (www):
I think that legal history can be quite useful in formulating policy even when the authors and referees know little of fields such as economics. Of course, there are cases where non-legal issues dominate, but that is not always the case. For example, the current debate about extending intellectual property rights to provide protection for various interests of indigenous peoples does have an economic side to it, but it also raises major issues of freedom of speech, freedom of association, separation of church and state, as well as legal and philosophical questions about the nature of property rights. Historical and theoretical work on the nature of property rights is highly relevant here.
3.19.2007 8:22pm
Hypothetical Man:
I don't take the judges as saying there's no place for the types of scholarship you describe in this post. But in my experience, these types of scholarship have displaced, almost entirely, the type of scholarship that the judges lament.

Scholarship of a deliberately practical bent is of no use in getting or keeping an academic position. This is true even at law schools in the third and fourth tiers, where the historical, philosophical, and theoretical dimensions of the law are beyond the grasp (and concern) of many of the students.

So there's no danger of "higher" level scholarship being crowded out, whatever the judges think of it. But the decline of practical scholarship, it seems to me, is valid concern. Those who can theorize should; more power to them. But they've become kudzu.
3.19.2007 8:48pm
John Kindley (mail) (www):
"Why should there be a demand that law be a purely practical discipline, either in the sense of always having an immediate payoff in court decisions or in the sense of always focusing on uncovering specific facts rather than setting up theoretical frameworks that help us understand the facts?"

One plausible answer: Law professor salaries are paid for with the tuition of law students who are required by the government to get a three-year J.D. if they want to practice law. They're entitled to a practical education and to professors whose focus is on matters that will actually prepare the students to be good lawyers. Herein lies an argument for some combination of the following: paralegals or those with an equivalent education should be allowed to practice law, and the practical knowledge paralegals learn in their coursework should also be taught in law school; law school should be limited to one-year of Socratic-method coursework and exams; more focus in law school on actual black letter law as opposed to the gray areas of law that understandably so enthrall academics; legal apprenticeships in the credentialing process; a requirement that all law students, not just those on law review, submit an article to law review for possible publication.
3.20.2007 12:25pm
jp2 (mail):
Somewhat OT, but doesn't the question whether law review articles should be aimed at judges boil down to the question whether law review articles should be aimed at brief writers?
3.20.2007 1:03pm