I recently read these pungent remarks by Brooklyn’s Aaron Twerski in connection with his receipt of the Robert C. McCay Law Professor Award from the Torts and Insurance Section of the ABA. Twerski observes and endorses criticisms of contemporary legal scholarship as “out of touch” and “lack[ing] relevance to the work” of judges and lawyers. He writes,
If interdisciplinary work is to have an impact on the changing face of the law, it must be made accessible to the lawyers and judges who are not schooled in other disciplines. And the scholars must demonstrate that the theories they set forth have real-world relevance — that they make a difference.
Relatedly, he criticizes prestigious law reviews for not publishing, and tenure committees for not adequately recognizing, traditional doctrinal scholarship. In his view, the academy’s inattention to doctrinal scholarship has led to plummeting citations to law reviews in judicial opinions. He contrasts this with high citation counts for the Restatements of Law, and holds out Restatement drafting as an example of relevant work for law professors to do.
I am sympathetic to Twerski’s position. (Indeed, Twerski’s remarks are similar enough to some comments I recently delivered in a similar setting that they were linked together
Comments
As a general proposition, law professors are much more influential in shaping legal doctrine in civil law countries where judges are relatively less influential, while judges are far more influential in shaping legal doctrine relative to professors in common law countries.
Interestingly, it is also the case that judges in civil law countries typically have little or no experience as attorneys, instead starting off right out of college as traffic judges and working their way up, while civil law professors typically engage in private practice for many years, at least part time, before they are able to support themselves as professors (and often continue part-time law practices even after securing professorial posts).
In contrast, in the U.S., at least, law professors typically have minimal experience as attorneys (indeed experience as a practicing attorney is frequently considered a minus in hiring process), while U.S. judges almost always reach their posts as second careers after managing distinguished careers as attorneys (frequently politically well connected ones) first.
While one can certainly point to elements of civil law practice that give professors an edge (like the doctrine that the Code matters more than precedents), and to elements of common law practice that favor judges (which derives its very name from judge made law), one has to wonder if the degree of connection of the respective professions to the practicing bar, and a result the tendency of the respective professions to be oriented towards “practical” legal scholarship isn’t an important factor in relative influence on the law as well.
Posted by: ohwilleke | Jun 5, 2009 2:34:40 AM