Orin Kerr writes here: “Judges often complain that the legal scholarship appearing in mainstream law reviews just isn’t helpful to them. It’s too theoretical, too esoteric, and simply doesn’t try to engage seriously with the problems facing courts.” I think it is fair to say that lawyers feel the same way.
Should a legal academic write to serve the legal profession? I have heard European scholars say that this is the prevalent conception of legal scholarship in Europe. I doubt many U.S. legal scholars would phrase the goal of their scholarship in this manner. But, many would like their work to influence the law.
Theoretical and abstract writings can influence the law, but their impact is frequently indirect, and therefore, relatively belated. Theoretical writings often exert influence through the more doctrinally oriented articles that cite them. Nevertheless, we consider doctrinal work to be a lesser form of scholarship. I sometimes wonder how we can so brazenly belittle the very pieces of work that serve to promote our goals.
Posted by Gaia Bernstein on April 21, 2006 at 01:17 PM
» Legal Scholarship and the Economy of Prestige from madisonian.net Before a forthcoming paper of mine gets completely preempted by a blog post and its comments, I should note that I have a forthcoming symposium piece, not yet on SSRN, that analyses legal scholarship in terms of James Englishs Economy of Presti… [Read More]
Tracked on Apr 25, 2006 4:13:43 PM
Comments
“The theoretical work tends to be the most cited because it can cover or touch on the broadest array of cases”
Is this really true? I suspect that doctrinal work, like Nimmer, Chisum, McCarthy, Moore’s, Wright & Miller, and Rutter Group book, etc. are cited far, far more than any law review article. Or does it not count because the doctrinal work is in a treatise? Is there a study that shows doctrinal law review articles are cited less than theoretical?
Posted by: MR | Apr 22, 2006 12:36:38 PM
Great question, and comments. I think the answer may lie in what James F. English calls the “Economy of Prestige”–specifically, the ways in which scholars systematically accrue, confer, and exchange reputational capital. The theoretical work tends to be the most cited because it can cover or touch on the broadest array of cases, as Positroll notes. This is just one more example of how citation-based measures of excellence can be misleading.
On the other hand, theoretical work does assure that the rich insights of economics, philosophy, social science, and other disciplines informs law. So perhaps we should be glad for the reputational incentives for theory!
Posted by: Frank | Apr 22, 2006 11:49:37 AM
I think there are 4 main reasons for the importance of doctrinal pieces in continental Europe: 1) Codes are founded on the central idea of deductive reasoning. “The law” is supposed to be a coherent, internally consistent system of rules. There is a “legal order” – CLS be damned. Doctrinal pieces take the code and the courts’ decisions and (try to) integrate both – which makes them essential for the system as such. Also, they make it possible to predict the outcome of future law suits – something which is of course important in the common law system, too, but is given much more importance in continental Europe. 2) Continental, especially German judges, are trained to use coherent deductive reasoning in their decisions. Since they are (at least in theory) not bound by precedents, they don’t “need” to know (or cite) all relevant cases – but they need the code and a theory interpreting it, a theory delivered by doctrinal pieces. 3) One important ingredient for (1) and (2) is having a national legal system. But law profs in the US face a problem in this respect: there are 50+ legal systems to cope with. And even if one concentrates on Federal law, it’s impact more often than not depends on the interaction with 50 other systems. “Query whether the German ideal of legal order can survive the European Union” [Maxeiner, U.S. “methods awareness” for German jurists, in: Festschrift fuer Fikentscher, 1998, 114 at 118, note 29]. And if you want to later switch law schools, from UCLA to NYU for instance, being an expert on the detailed workings of Californian zoning law won’t help you too much, compared to papers putting forth the advantages and disadvantages of strict liability in torts. 4) I hesitate to mention that US statutes are rarely systematic or comprehensive and often very poorly drafted compared to civil law codes, as modern statutes in Europe are getting worse and worse, too …
Posted by: Positroll | Apr 22, 2006 11:04:13 AM
In response to Gowri Ramachandran’s question, well done doctrinal work can have a significant impact. Judges are hearing all kinds of cases, and the majority of them will involve areas of the law that the judge didn’t ever practice. As a result, a doctrinal piece that sets forth how the law works in a certain area — especially if it’s a complex area — can have a serious impact on how the judge understands that area of the law.
For my money (and this is doubtless because I practice in the criminal area), one of the best examples of doctrinal work is the Georgetown Law Journal’s yearly Criminal Procedure publication. That book has a profound effect on both practitioners and judges in the criminal procedure arena.
Posted by: SG | Apr 21, 2006 7:24:07 PM
Couple other random observations. I was considering places outside of constitutional litigation where legal scholars have had a significant impact. In the 1970s, Professors Areeda and Turner proposed a test for predatory pricing (I think in a Harvard Law Review article) that was very quickly adopted by most of the circuits. Indeed, I cut my teeth as a young antitrust lawyer getting the Sixth Circuit to adopt the “Areeda and Turner test.” (I’m trying to think of any other directly influential law review articles in which courts have flat out adopted a doctrinal proposal proffered by a scholar, but I’m drawing a blank.) The other area that comes quickly to mind is model codes – civil procedure, evidence, corporations, UCC, franchising, etc. One of the questions I posed to my venture capital seminar a couple years ago, given the relative uniformity of venture capital financing documents, was whether it would make sense to have a Uniform Venture Capital Code, and if so, what provisions would you put in it? I wonder if there is some relationship between this last point and the observations about legal scholarship in Europe. It seems to me there would be a whole different dynamic to influencing legal doctrine that is primarily based in civil codes as opposed to judicial decisions.
Posted by: Jeff Lipshaw | Apr 21, 2006 4:06:42 PM
Perhaps this is naive, or perhaps this is because I am in IP law, where theory and doctrine often intertwine, but it seems to me that you need both to really explore an issue.
It seems to me the whole point of legal scholarship is to write something that will influence the way people behave with respect to some legal issu, be it judges, lawyers, or individuals/companies. The law doesn’t exist in a vacuum – every human action is governed by some set of rules, even if the rule is implicitly “no interference.”
I think this leads to several different types of legal scholarship: 1. The doctrine is large: this might result in a treatise summarizing it, and that’s nothing to scoff at (although I suppose some do – but you can’t say these folks aren’t relied on by the people that matter)
2. The doctrine is a mess: this might result in work summarizing the doctrine, but with some theory as to how to clarify, change, or improve the doctrine – a lot of respected scholarship takes this approach
3. There is no doctrine: this might result in work that is primarily theory, but in the end, some new doctrine should be suggested, or the scholarship isn’t really advancing the ball either
What remains is doctrine that’s not a mess, and that’s not large. I suppose that this is “doctrinal” work that gets scoffed at, but I’m not sure if that’s unfair. If the doctrine is small and clear, who needs another article on it? That’s hardly advancing the ball.
Posted by: Michael Risch | Apr 21, 2006 3:45:53 PM
It’s interesting. In some ways, doctrinal work is, I think, *harder* than fluffier stuff, and it relies on skills that are peculiar to lawyers. So it might be further evidence of Laura Kalman’s thesis in The Strange Career of Legal Liberalism that legal scholars doubt the value of their own field that they regard doctrinal work as less worthy, as opposed to work that borrows from history, or literary criticism, or what have you, that appears to lawyers to be novel, but may just be novel to law professors.
Posted by: Bruce | Apr 21, 2006 3:36:25 PM
I find this an interesting issue, too. I wonder what percentage of doctrinal pieces say something that sharp lawyers and judges haven’t thought of, or wouldn’t have soon thought of, themselves? Plenty of lawyers and judges are smart and creative thinkers. I don’t want to disparage doctrinal work specifically, much of which is very helpful to me as a scholar, but rather want to wonder about how much direct, short term influence even it is having on the practice of law?
Posted by: gowriramachandran | Apr 21, 2006 3:25:13 PM
The profession itself is more academic in Europe. Many lawyers in practice have advanced degrees in law (e.g., the German lawyers whom you address as “Doctor”). Because there is far less litigation, there are whole segments of the U.S. bar that do not even exist in most of Europe. (See the Claire Hill and Christopher King article on why German contracts are shorter.) In transactional work, until fairly recently, and I think it is still the case, it was very, very unusual to find a European lawyer deeply involved in the business aspects of a deal; the relationship among the lawyers has (or had) more of a “guild” or “academy” feel to it. You could have a deal that had to be signed or closed by a deadline, and the French lawyers, seemingly oblivious to the fact that the market was opening in New York in an hour and we had to get the press release out, would be deeply engrossed in an academic debate over what to an American lawyer seemed to be wholly form over substance.
Posted by: Jeff Lipshaw | Apr 21, 2006 2:43:22 PM
I’ve struggled with this myself; I’ve written both entirely theoretical and mostly doctrinal works, and I like to think that both types “count.” What I try to do with a doctrinal piece is end it with what I call “Section IV”: if Section I is intro, Section II is the circuit split, and Section III is my proposed doctrinal solution, then “Section IV” gives a broader theoretical perspective on the nature of the problem (e.g., a theory of why the courts are struggling or confused) or of my solution (e.g., why theories of social norms support my proposal). I guess I’m saying that I try to end my doctrinal pieces by adding a small but meaningful theoretical section at the end, and I think it’s worked reasonably well.
Posted by: Scott Moss | Apr 21, 2006 1:27:01 PM