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Wednesday, September 24, 2008

Thoughts on Disseminating Scholarship

I was extremely pleased to see that the great new paper by Sonja Starr that I blogged about earlier this month appears to have had an impact in a recent case out of the Northern District of Illinois.  Professor Starr’s thoughtful paper advocates sentencing reductions as a remedy for prosecutorial misconduct.  The sentencing judge in United States v. Dicus not only reduced the defendant’s sentence based on the prosecutor’s misconduct in the case, but he also explicitly references Starr’s paper (which is available on SSRN).  (Hat tip:  Doug Berman)

This case has me thinking about how we could better disseminate our scholarship.  You may remember the widespread attention last year when the NY Times reported that many judges on the Second Circuit expressed the view that legal “scholarship no longer had any impact on the courts.”  There is empirical evidence that judicial opinions cite law review articles less often now than in earlier decades. Undoubtedly, not all legal scholarship will be of equal interest to judges, but there are some articles that very well may be.  Sometimes, in the course of my more theoretical research, we may come across a discrete doctrinal issue and consider writing on that topic.  What should those of us who are writing such scholarship do in order to ensure that the lawyers and judges who are dealing with these issues are aware of the articles (or books, etc) on the issue?

For example, I recently co-authored an article on standards of appellate review for federal sentencing decisions.  I think that the article could provide much-needed guidance to the courts of appeals, which are deciding dozens of these cases every month.  Would it make sense to send a reprint to chambers?  What are the chances that a judge would read an unsolicited 50 page article?  How could I publicize the article to attorneys who are litigating these cases (besides guest blogging here on Prawfs, of course)?  How can we help to ensure that our scholarship does, in fact, have an impact on the courts?

Posted by Carissa Hessick on September 24, 2008 at 05:46 PM in Life of Law Schools | Permalink

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You might better reach judges and lawyers by reiterating your law review thoughts in other publications that they more regularly read, like state bar journals or the National Law Journal (with, of course, citation to the law review, or ssrn when such sources are printed more expeditiously).

Posted by: jeff | Sep 24, 2008 7:36:42 PM

I understand, anecdotally, that judges do read and appreciate that sort of venue. Other such opportunities are the American Judges' Association's "Court Review," with info at http://aja.ncsc.dni.us/courtrv/review.html, or ABA's Judicial Division's "Judges' Journal," with info at http://www.abanet.org/jd/publications/jjournal/. I'm sure there are similar venues.

Posted by: Jeremy A. Blumenthal | Sep 26, 2008 1:19:05 PM

I thought it was Northern District of Iowa?

Posted by: matt | Sep 30, 2008 9:22:35 AM

Matt is correct.

I'm glad to see that there are still professors out there who try to write things that courts would care about instead of lamenting the lack of interest by appellate judges in Disaggregating the Paradox of Robustness.

Perhaps the professors who clerked should ask their former employers.

I would imagine that the judges who actively seek out scholarly articles when they confront tough legal questions don't need much help finding it. For them, having your stuff on SSRN and Westlaw's jlr database should be sufficient.

For the other judges, though, who might be receptive to certain scholarship if they knew it was out there, I don't know what the best way is to get the paper in front of them. If the paper is about an issue that they deal with all of the time (like reviewing district court sentencing, which every federal court of appeals judge probably does at least once a month), then it just might make sense to mail reprints to chambers.

Posted by: anonymous | Sep 30, 2008 11:10:13 AM

Perhaps the professors who clerked should ask their former employers.

By this I mean, perhaps judges can tell you how best to get judges to read a useful academic article that you've written.

Posted by: anonymous | Sep 30, 2008 11:11:53 AM

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