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Tuesday, October 30, 2012

Forms of Legal Scholarship and Law Professors' Influence

Following up, tangentially, on earlier threads about the value of legal scholarship, I'll offer this speculation about forms of legal scholarship and law professor influence.  I'm spending a fair bit of time now reading English legal scholarship, and a little German, which reminds one of the distinctions in how law professors approach their work.  American law profs are notorious for long articles (but we write fewer books--probably because two or three U.S. law review articles equal a book in word length.)  English and German law profs (like most other U.S. academic disciplines) write mostly in shorter forms, often articles of 15-30 pages (plus books). I'd also say that it seems English and German scholars do more work than we do that focuses on a recent court decision, statute, bill or other specific development in law--work that Americans might call (sometimes a bit perjoratively) "close to the ground."  (Though there's plenty of critical/theoretical/etc. work as well as this policy-analytical work, to be sure.)  My speculation is this: shorter, more practical articles reflect scholars' greater capacity to influence law development and reform in these jurisdictions.  The higher the prospects that one's work might matter to courts and legislatures, the more likely one is to write in forms that are accessible and relevant to them.

I can defend this a bit more as to England than Germany.  I think English law profs have better odds of having influence on law reform by Parliament and agencies than in we do in the U.S.  At least two things point in that direction: England's standing Law Commission, on which law professors serve and which can realistically  influence Parliament's agenda; and the English tradition of appointing ad hoc Royal commissions, staffed by respected lawyers and scholars (among others), to study and report on various policy issues, which then often help set legislative reform agendas.  (And note that, with law profs on those commissions, other law profs can write pieces relevant to a commission and expect law prof members, at least, to pay attention.) Perhaps the greater capacity to influence policy and law reform inclines scholars to write more often in ways that directly speak to current issues and specific topics in fairly practical ways. (Here is an interesting paper on how 'knowledge regimes'--think tanks and other sources of data/information/analysis that informs government policy--vary across nations.  One argument/insight is that information sources affecting politics are more partisan in the U.S. than England and elsewhere.)

This is broad generalization, to be sure.  U.S. law profs do plenty of articles with the purpose of saying, in effect, "X line of cases are wrong and doctrine Y ought to be this way," though it tends to take us 60 pages to make the case. Still, I think there's something to the distinction.

I can't say as much about Germany, except that I have a vague sense mostly from hearing this said by those who claim to know, that by long tradition German legal scholarship carries more weight with German courts (and even legislatures?) than American scholars' work does with U.S. courts. Others surely have better information and insights.  BTW: German law profs, I've noticed, seem also commonly to produce very short pieces--2-5 pages--that are basically case comments.  I'm a bit puzzled about the utility of these, unless German legal materials lack equivalants to our various law update/summary services (e.g., U.S. Law Week, Cornell's LLI, or various good blogs), which seems unlikely.


Posted by Darryl Brown on October 30, 2012 at 05:27 AM | Permalink


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"German law profs, I've noticed, seem also commonly to produce very short pieces--2-5 pages--that are basically case comments. I'm a bit puzzled about the utility of these, unless German legal materials lack equivalants to our various law update/summary services (e.g., U.S. Law Week, Cornell's LLI, or various good blogs), which seems unlikely."

What you seem to be missing is the central importance in German scholarship of the "Kommentare" - big books commenting on codes / statutes, chapter by chapter, article by article, in a systematic way
(since nowadays some of them are also available online and get updated fairly often, they don't leave much room for US style summary services).
Cf. http://www.llrx.com/features/germanlaw.htm#commentaries

When a German judge approaches a private law problem, he first looks at the code / statute, and then if there is no evident answer, the next step is to open the small Kommentar (1 volume) that is standing on his desk right in front of him. If that doesn't help, he goes to the library (or to our Westlaw equivalent) and opens up a big Kommentar (6-12 volumes).

The main aim of a German prof writing a paper / note (including the 3 page notes, which usually refer to a larger piece written by the Prof "as I have already pointed out before, this result is b.s. because ..." ) is to get cited by and influence a Kommentar, then in turn get read and applied by a court. Being cited by major treatises and influencing the next generation is nice, too ...

A final remark: if e.g. a court of first instance decides "A", the decision gets pubished and then three Profs (esp ones that have written important casebooks / treatises on the general topic) write short notes all saying "A" is stupid, the solution has to be "B", this can have quite an influence on the next higher court on appeal (a good lawyer in an intersting case will check for such notes and then make sure to forward the notes to the court as an annex to a pleading ...).

Posted by: Positroll | Oct 30, 2012 10:25:26 AM

American legal scholarship has more practical, "close to the ground" influence than we give credit for, and as an example I'll put in a plug for a non-partisan research organization that has served as an important outlet for this kind of work.

The Palm Center, http://www.palmcenter.org, is affiliated with UCLA and has sponsored all sorts of research (legal, sociological, military, etc.) related to "Don't Ask, Don't Tell" for more than a decade. I have been involved on the legal side, writing very short pieces designed for readers in Congress, the military, and the media. They focused on very specific legal issues that came up in the course of repeal and constitutional challenge, such as separation of powers and constitutional authority, executive discretion to decline to defend, and the military's obligation to comply with court orders. They were helpful in clarifying issues that are usually obscured by partisan influence, and often they took positions that crossed expected party lines.

I suspect that the Palm Center has been as influential a provider of legal scholarship in this particular field as all law reviews combined.

A current law professor, former Air Force officer, and author of "A More Perfect Military: How the Constitution Can Make Our Military Stronger"

Posted by: DH Mazur | Oct 30, 2012 12:44:31 PM

I am intrigued by this last comment of Prof. Mazur. What evidence can be pointed to that the Palm Center's work is influencing court decisions, legislative actions, and policy decisions?

Posted by: WN Myhill | Oct 30, 2012 1:08:52 PM

One can never gauge influence with any certainty, but a good public measure would be the frequency with which the Palm Center's work was referenced in witness testimony, congressional materials, and military reports.

Posted by: DH Mazur | Oct 30, 2012 1:23:57 PM

Positroll cleared up my puzzlement about the purpose of 3-page comments, and confirmed with terrific details the general accounts I'd heard of German scholars' significant influence with German courts. That account confirms (in my view) my hunch that greater judicial/legislative receptivity to scholarship affects the form scholarship takes. BTW, I can't imagine, in the U.S., three big-name schools weighing in against lower court judgement and expecting thereby to have a good shot at affecting the higher court's decision. Wow!

I'm glad to learn of the Palm Center and its influence from Prof. Mazur. But I notice she describes the work scholars do for it as taking a different form than most of the scholarship most US law profs publish most of the time. That likewise confirms, to me, that the most law review articles, even when doctrinal and policy-oriented, aren't really expecting to exert much influence on policymakers and courts. (Though a few get cited, to be sure.) I still think, though, that good, fair-minded, nonpartisan work in the U.S. like the Palm Center's doesn't add up in influence of comparable sources one finds in some other countries with different, less partisan dispositions toward facts, analysis and scholarship.

Posted by: Darryl Brown | Oct 30, 2012 4:01:53 PM

I am the director of the Palm Center and would like to weigh in briefly to thank everyone for such thoughtful remarks, to agree that it is difficult to assess the impact of research, and to offer the three ways in which I think a case could be made that our research may have had an impact. Those three paths are that the research (1) served as the basis of media campaigns whose headlines, over time, eroded military leader's ability to say with a straight face that repeal would harm the military, (2) enabled outreach to military allies who, once persuaded by the data, became willing to help corrode the rationale for discrimination from within the institution, (3) allowed the LGBT to apply a tremendous amount of political pressure on the Obama administration after Professor Mazur explained to the public that the President had an executive order option to suspend the ban. If anyone would like an elaboration of these points, please email me atbook. belkin@palmcenter.org and I will send you an e-

Posted by: Aaron Belkin | Oct 30, 2012 4:31:16 PM

Are German or other European law professor's work peer reviewed or are they student edited like US law professor works?

Posted by: Steve | Oct 30, 2012 8:48:13 PM

How many law professors are there in Germany and England as compared to in the United States? Some quick googling suggests that there are many more in the U.S. by somewhere around an order of magnitude. If that's right, I suspect it has an impact on the kind of work they do. The smaller the group of professors, the greater is the likely impact that any one professor can have; the larger the group of professors, the more likely it is that they have an audience big enough to write mostly for each other.

Posted by: Orin Kerr | Oct 30, 2012 8:58:07 PM

To Steve: I think U.S. legal scholarship is unique in its student-edited journal model. I don't think legal scholars anywhere else, nor any other disciplines in the U.S. or elsewhere, publish predominantly in student-edited reviews.

Orin raises a good point I hadn't thought of. I doubt the difference is quite that great, at least compared to England. Oxford lists 100+ law faculty [of many statuses]; Warwick lists 50. Still, England (and Germany) might have proportionately fewer law schools, or fewer law profs per capita. But that seems to go more to the odds of a given professor having influence rather than the professoriate collectively having influence. Alternately, though, it could mean that while a smaller portion of us do policy-influencing work and thus I perceived it to be less common in our law journals, there's still an equivalent amount of such work produced here and in England. Nonetheless, I'm still inclined to think that our policymaking system is somewhat less inclined to give neutral scholarship the influence it receives elsewhere.

Posted by: Darryl Brown | Oct 31, 2012 5:28:16 AM

In the US-German comparison, I don't think the number of profs has a big impact on their opinions having more or less weight. I'd rather say it is due to the difference between a code based system and the common law, where court decisions (precedents) are way more important (at least in theory).

Lower German judges are formally not bound by higher courts decicions (except "res iudicata" questions and decisions of the constitutional court declaring statutes void). Their primary duty is to apply the law as fixed in the code. To interpret the code, they need to understand its system and understand how single rules (including those "found" in the code by other (/higher) courts) interact with the remainder of the system. Doctrinal pieces by professors play a central role in this respect - and if convincing their positions are taken up by the Kommentare.

Occasionally you will find that a bunch of OLGs (regional court of appeals) consistently refuses to follow the lead of the BGH (Supreme Court) based on doctrinal arguments, arguing again and again (sometimes in obiter dicta, sometimes with effects on the merits) that the Supreme Court gets the code wrong. If the resistance goes on long enough, sometimes the Supreme Court changes its opinion, sometimes the legislaturee steps in ...

Posted by: Positroll | Oct 31, 2012 10:15:15 AM

"I can't imagine, in the U.S., three big-name schools weighing in against lower court judgement and expecting thereby to have a good shot at affecting the higher court's decision. Wow!"
Ah, one more thing I should clarify since you are about law schools weighing in: I was talking about specific scholars and doctrinal questions. Big-politics questions (like Obamacare) are a different can of worms, and a few short notes wouldn't be of much influence in this area.

Please also note that in the German system, only the Constitutional Court(s) can declare a law unconstitutional. This de-politizises the lower courts to a big extent (one recent counter-example: the district court that decided that circumscission was illegal but still acquitted the accused doctor). If they doubt the constitutionality of a law, they can ask the constitutional court to rule on the question, and afterwards the lower court continues the case forward on that base.

Posted by: Positroll | Oct 31, 2012 12:40:48 PM

A slightly different comment: To what extent do you think the move on the law reviews to encourage shorter articles will work to get professors to write shorter pieces? And if they do, to what extent do you think that might help give scholarship more real-world impact?

Posted by: Howard Wasserman | Oct 31, 2012 11:53:11 PM

Howard: I've wondered whether the law reviews' policy of the last several years to favor shorter articles was having any effect. My anecdotal impression is that doesn't. It would be an easy thing to measure, but I haven't bothered to do it: count the word length of articles in review X and see how many exceed the review's purported word-length limit/preference; or, measure average-article word-length before and after the limit. I strongly suspect top reviews have published a non-negligible number of articles beyond their 'limits.'

Positroll: I mistyped: I meant "big-name scholars," not "big-name schools." Thanks for your terrific insights on German legal education, practice and culture.

Posted by: Darryl Brown | Nov 1, 2012 6:00:59 AM

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