Monday, April 30, 2012
Academic and Judicial Influence Among Elite Criminal Law and Procedure Scholars
In the Supreme Court's recent 5-4 decisions in Lafler v. Cooper and Missouri v. Frye, the Supreme Court, 5-4, invalidated trial convictions because the lawyers rejected favorable plea offers with no plausible legal basis. The opinions in these cases relied on scholarship from law professors, including Albert Alschuler, Rachel Barkow, Stephanos Bibas, Jerold Israel, Orin Kerr, Nancy King, Wayne LaFave, John Langbein, Robert Scott, William Stuntz, and Stephen Thaman.
For me, these cases brought to mind Chief Justice Roberts' famous mockery of the contribution of scholars to actual law: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in eighteenth-century Bulgaria, or something. . . .” But at least in criminal law and procedure, the field I know best, Lafler and Frye seem like par for the course; the idea that good scholars are irrelevant to courts and and legal doctrine struck me as mistaken. I recognized that a rigorous and sophisticated empirical study would be very valuable, and could conclusively prove or refute my hypothesis. Instead of that, though, I decided to do some casual noodling, which I report here.I looked at the 21 most cited criminal scholars according to Brian Leiter. The Leiter study looks at faculty who are most cited in law reviews from January 1, 2005 to January 15, 2010. By examining those who were most influential in recent law review citations, this study captures those now in fashion in the academy. All of these 21 teach at highly ranked schools (all are in the top 50, and 19 are in the top 20), where one might expect highbrow academic culture prevails. And although this group skews toward seniority, more are in their 30s, 40s and 50s (11) than are in their 60s and 70s (10), which means that most, or maybe all, spent the bulk of their careers in the era dominated by fancypants scholarship, rather than, say, treatisewriting and descriptive work. Judge Harry Edwards, for example, wrote his celebrated article about the irrelevance of legal scholarship in 1992, and he described a problem with legal scholarship he had observed "for some time now", not a brand new development.
By my count, 15 out of the 21 have had at least one article one book or article cited in at least one opinion in the U.S. Supreme Court. It seems to me that having an article cited in the Court demonstrates that a scholar's work is useful to the legal system. Six were not cited in the Supreme Court--I won't name names, because I might have missed something in my searches. But each of those six were cited in lower federal courts and state appellate courts from dozens to hundreds of times. Because lower courts are more constrained, a citation there is, if anything, even more suggestive of useful work about conventional legal subjects than is a citation in the Supreme Court. And while serving as law professors, several of those six litigated in the Supreme Court either as counsel or amicus curiae. They also have performed other major service in the legal system, with national bar groups or state or federal government commissions. While many of them have written, on occasion or regularly, "high theory" articles, not a single one of them could fairly be regarded as ethereal or irrelevant.
These folks, at least, not only are popular among other academics, but are also taken seriously by, and are influential in, courts and in other aspects of the legal system as well. They do law in the same sense that the Supreme Court does law. The tentative conclusion I draw is the umpire made a bad call this time. Surely there is a bottom fraction of the professoriate, and we--I mean they--write articles few scholars or judges find useful, both because of the topics chosen and their execution. But good criminal scholars, because of their intellectual ability, diligence and the relevance of their subjects, are read and engaged by both courts and other scholars.
Posted by Jack Chin on April 30, 2012 at 04:51 AM | Permalink
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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
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
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
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
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.
Posted by: Jack | May 1, 2012 12:55:23 AM
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