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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.)

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