Monday, July 30, 2012
Scholarship for the Courts: A Different Kind of Cert Pool
Via Dave Hoffman's post having to do with the questionable utility of non-elite journal experience for law students, I came across our own Matt Bodie's spirited defense of student participation in the legal scholarship world. And by looking up Matt's article I stumbled upon Ross Davie's new piece for the Journal of Law, entitled "In Search of Helpful Legal Scholarship, Part I." It is written with Ross' characteristically light and perceptive touch and the gist of his "opening remarks" is that there should be some vehicle by which the courts (particularly the SCT) are made aware of the relevant scholarship on an issue, e.g., when the Court grants cert on a particular case. Here's a taste:
Professors should organize a cert pool of a sort for law review articles. They have the knowledge: they know
scholarship, good and bad. They have the know-how: they know peer review, pure and corrupt.
(Peer review of a sort is at the heart of this project.) And they are in position: they have the tenure
that frees them to speak truth not only to power, but also to each other. But rather than
giving the Justices stacks of memos evaluating every single law review article (as the clerks in the cert pool
do with petitions in every single case), the professors should take a different kind of case-by-case approach.
Every time the Court grants a cert. petition or otherwise agrees to hear a case, they should give the Justices
a simple, readably short list of those articles most likely to be helpful in deciding that case. Then the
Justices or their minions can read the helpful scholarship themselves. Each list should be in the form of
(and filed as) an amicus brief – a truly brief “brief of scholarship” rather than a conventional “scholars’ brief.”
I like this suggestion a lot. Ross suggests that the AALS or JOTWELL could do something like this in terms of organizing a cert pool of scholars. What do y'all think? I would guess that the list would be of interest not only to the courts/justices but also the litigants to some extent, especially when the litigants are not as savvy as the usual elite sct bar practitioners.
Btw, if you've not been keeping up with Green Bag or the Journal of Law, some links for the latest issue of Green Bag are after the jump.
Volume 15, Number 3 (Spring 2012)
TO THE BAG
Curtis E.A. Karnow, Similarity in Legal Analysis & the Post-Literate Blitz
David Roe, Little Labs Lost: An Invisible Success Story
Laurence H. Silberman, The Development of “Final Offer Selection”
FROM THE BAG
Unknown, Smashing the Taxicab Racket
Cedric Merlin Powell, Identity, Liberal Individualism, and the Neutral Allure of Post-Blackness
John L. Kane, Jr., The Inmate
Alice B. Richards, Studying for an Evidence Final on a Cold Winter’s Night
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