In the Supreme Court’s recent 5-4 decisions
Comments
Orin, Well, the Chief’s example was from evidence, which, as Tamara points out, may generate scholarship that is typically as practical as criminal law and procedure. The example could also be from legal history, which in a court respectful of originialism also seems quite practical.
Tamara, I suspect you are right that scholarship influences other areas as well. I also suspect that scholars in various fields “popular” among their peers are also disproportionately influential in courts.
Mike, although I agree that there are many articles that would better have been left unwritten, I myself don’t think that is a fatal criticism of the current system, because the wheat/chaff problem is intractable. That is, scholars can’t, in advance, decide to write only good articles. New profs starting out may publish clinkers or fabulous stuff, but they can’t know until they actually start writing. And even great scholars sometimes turn out pieces that are below average. So the fact that some legal scholarship is not very good is an inevitable part of producing scholarship at all.
Jack
Posted by: Jack | May 1, 2012 12:55:23 AM
In fairness to the Chief Justice, I do think that scholarship in criminal law and procedure is significantly more attentive to what happens in the courts than is scholarship in most other areas. Only a small percentage of lawyers practice in criminal law. But criminal prosecutions require courts: Every case needs a charge in court, and that charge needs to be either dismissed or leads to a conviction. For that and other related reasons, most appellate courts maintain a docket that has a heavy criminal law and procedure component. This heavy criminal docket leads to lots of caselaw developments in the field. My sense is that the caselaw developments have two effects: They induce academics to focus on what is happening in the courts, and they also lead generalist judges to be more open to scholarly help figuring out that part of their work.
Posted by: Orin Kerr | May 1, 2012 12:10:26 AM
Jack,
Great post. When I think of the folks I know writing in criminal law and criminal procedure, nearly all are writing pieces that are not only well-written and interesting, but also should be of some use to courts and legislatures.
Posted by: Michael J.Z. Mannheimer | Apr 30, 2012 9:23:52 PM
It isn’t that Chief Justice Roberts doesn’t have a point: there is a great deal of legal scholarship that is either esoteric to the point of self-indulgence, or simply mediocre or even poor scholarship. But what can we reasonably expect when there are way too many law schools and the rule for law professors (like all professors) is publish or perish?
But at the same time I think the Chief Justice’s comments, while amusing, were unfair. There is a great deal of very valuable scholarship coming from the top minds in legal scholarship. And practicing attorneys and judges do take notice of it. This is true in every field I have ever researched (an admittedly limited sample). I have often found secondary sources very useful in understanding a legal issue. The problem seems to me to be one of separating the wheat from the chaff.
Posted by: Mike | Apr 30, 2012 8:53:22 PM
Actually I think it is a lot more than criminal law professors. My colleague Chuck Adams wrote an article in which he mentioned another example – the creation of the concepts of general and specific jurisdiction in civil procedure by von Mehren and Trautman. Another is Rich Friedman at Michigan and his apparent influence on Crawford and the Court’s reading of the Confrontation Clause. Moreover, there are example of opinions which have clearly been influenced by law review articles even though those articles were not cited by the Court. Another is the example of punitive damages research which raised something of a controversy about sponsored work. I think law reviews and law review scholarship has been attacked on various grounds almost since inception (think Fred Rodell) but don’t think this one is valid. I think it has more to do with seeing the proliferation of both the numbers of journals and the variety of scholarship, not all of which is going to be of immediate relevance to litigation.
Posted by: Tamara Piety | Apr 30, 2012 7:03:19 PM