Ethics Matters

Opinion: The Value Of Legal Scholarship

, The Connecticut Law Tribune

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Mark Dubois
Mark Dubois

An American Bar Association committee studying the "problem" of law schools, recently issued a draft report. Among other things, the authors posited that some of the cost of law school was driven by the need to hire and retain faculty who spent a lot of time doing research and writing scholarly papers. There seemed to be a tone in the report that some of this writing was not needed and that time might be better spent teaching practical skills and serving the public.

Taking shots at legal scholarship is not new. Chief Justice John Roberts told a judicial conference in 2011: "Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something."

Some who teach writing for appellate courts and SCOTUS warn that citing to law review articles is a mark of naiveté. A judge asked me when the last time I had cited a law review article in a brief, and even more tellingly, when I last saw a law review article cited in an appellate decision.

I used to teach legal writing, and I liked law review articles as a good secondary source with which to begin exploring a new topic, but I always wondered how persuasive they were to judges. Well, at least with regard to one judge, now I know.

Richard Posner is a judge of the U.S. Court of Appeals for the Seventh Circuit, a prolific writer, and a public intellectual in every sense of the word. He has a new book out called "Reflections on Judging." I recently read an article by him on this topic adapted from the book. If what he says is accurate, a lot of ink is being wasted in the academy.

Posner categorizes legal scholarship into five areas, ranging from restatements and treatises to esoteric technology journals. He has little use for most of it. With regard to the basic "Black Letter Law 101" of doctrinal treatises, he sniffs that this work is done by academics at "less prestigious" law schools.

In the middle are writings drawn from social sciences or legal theory. Though he finds this material interesting, he also condemns it as too abstract to be of any practical use to judges, even at the highest levels of appellate jurisprudence. Empirical study has the least cachet, is the least accessible, lest prestigious, and least rewarded, though potentially most important of all the fields.

The final category is law-and-technology, a field Posner finds useful and important though also inaccessible, something it shares with the best law-and economics writing. (His bent towards economics is no surprise, as he is also a senior lecturer at Chicago, the University of Chicago being the wellspring of the "freshwater" economics movement.)

Why, then, doesn't Posner, and presumably his colleagues, find at least some of the scholarly work of use? It seems that the trend towards permanent clerk staff, coupled with computer-assisted legal research, has made the law-finding function easy enough that the judges can do it for themselves, rather than rely on scholars. With regard to the analytical and policy content of the work, he finds the professors no more or less persuasive than any other partisan, noting that many of them have virtually non-existent practice experience, and rely too much on theory and too little on how things really happen in the courtroom or boardroom.

In an amusing note, he remarks that law professors even dress more like other academics than lawyers. He may have a point there. A dean of a California law school told me of a meeting involving herself and some trustees where they mistook a professor for the guy they had called to fix the air conditioner.

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