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Friday, February 17, 2012

A weekend question

As part of some ongoing research (hopefully submitted soon) into the impact that scholars have on judicial decisionmaking, I am noticing that a good deal of scholarship tends to be reactive. This will, of course, come as no surprise. For one, we publish in law reviews where we are supposed to react to the law. Likewise, much food for thought comes from reading and reacting to judicial decisions. I am beginning to wonder, though, how often is legal scholarship proactive or constitutive? In other words, how often does it not simply review and participate in the conversation but move the conversation and boldly go where no one has gone before? Does anyone have any nominations for such scholars or articles?

Posted by Trey Childress on February 17, 2012 at 05:34 PM | Permalink

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Comments

Felix Cohen's work in the field of Federal Indian Law was constitutive rather than reactive.

Posted by: Colette Routel | Feb 17, 2012 6:36:00 PM

I'm puzzled by the question. All of us seek to move the conversation and say something that no one has said before. But at the same time it is impossible to be totally sui generis -- see Ecclesiastes. Proposing the speed limits for the antigravity speeders in our future colony on Alpha Centuri would still be "reactive" in some minimal sense. And, of course, being too extremely "proactive" would justifiably land legal academia in CJ Roberts' land of uselessness. So I query both your seeming dichotomy, and your seeming argument ("boldly" as opposed to "foolishly," "rashly," etc.) that going to no-man's land is a good thing.

Posted by: TJ | Feb 17, 2012 7:51:16 PM

I haven't followed the Second Amendment jurisprudence closely, but it seems pretty obvious that the courts followed the law professors in that area.

Posted by: Douglas Levene | Feb 17, 2012 10:33:29 PM

Martin Redish (albeit unacknowledged by the Court) in suggesting contours of commercial speech doctrine; Von Mehren & Trautman in coining terms general and specific jurisdiction; Jennifer Mnookin on the admissibility of handwriting, fingerprint and other forensic expert testimony, Catherine MacKinnon in creating cause of action for sexual harassment. There are probably many others. I think this old chestnut about law reviews not influencing court opinions is not really true. But it can be hard to measure. One because the lead time can be very long (for example 18 years from the time von Mehren & Trautman coin the terms and Heliocopteros when the SCOTUS uses it) but more fundamentally because sometimes it seems that scholarship has influenced the Court ( as with Redish and Va Pharmacy) but for one reason or another (maybe just forgetting where one has seen something) doesn't cite it. Hat tip to my colleague Chuck Adams for the jurisdiction example.

Posted by: Tamara Piety | Feb 20, 2012 2:47:27 AM

In my practicing career, the most striking example of academic scholarship on real world outcomes was the influential late 1970s Harvard Law Review article by Areeda and Turner proposing a test for the monopolization element of predatory pricing based on the relationship of the alleged predator's prices to average variable and average total cost (as surrogates for marginal cost). I'm pretty sure the Areeda and Turner test, as it was called, came to be adopted in almost all the circuits.

Posted by: Jeff Lipshaw | Feb 20, 2012 10:41:54 AM

I would like to nominate Margaret Blair and Lynn Stout, A Team Production Theory of Corporate Law, 85 Virginia Law Review 247 (1999). If it typically takes 20 years for a good idea to be accepted into mainstream thinking, then this article still has a good seven years to go. I believe this article will eventually change our way of thinking about a public company's objective (providing a more complete picture than just shareholder wealth max.)and as a result impact corporate law.

Posted by: Bernard S. Sharfman | Feb 20, 2012 1:14:24 PM

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