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Thursday, October 02, 2008

An apology for the disconnect between lawyers and law reviews

The other day, I shared some of Jeff Lipshaw's advice for beginning law professors. It triggered this  conniption from Scott Greenfield at Simple Justice. Apparently Greenfield was so blinded by rage  over the fact that law profs don't always care about whether their scholarship had practical utility to practicing lawyers that he couldn't even accurately read that the advice actually came largely from Jeff (instead of me). In any event, I'd be happy to take credit for Jeff's pearls [and Scott has since tried to clarify it with an update].

To my mind, Greenfield's rant is misdirected.  Putting aside the juvenile tone --  is a description of academia as a big "circle-jerk" really all that illuminating? -- let me just make a few quick points on the merits. The point Jeff was making and which I seconded is that it's important for a good law review article to explain why something matters to other scholars and not just whether the courts should clarify some aspect of doctrine. The reason: if one can't persuade a law professor who studies the issue that one's got a problem worth studying and spending more time on, then there's not much comparative advantage between law professors and competent third year associates who can just spend a few hours reading and synthesizing the cases. Second, a lot of professorial work product is more than just interpretive and therefore not necessarily directed at courts and practicing lawyers: often it is directed to legislative bodies or executive policy-makers. So there's no reason for Greenfield or other practicing lawyers to take umbrage at being excluded from the conversation if their only reason for reading these pieces is to find out how it will help their clients in litigation.  Last, some law professors are writing purely for knowledge's sake and not to advance a public policy change. Think about the history of a defunct law--and what might that tell us about culture then?  That might seem like a study without practical utility but it doesn't mean it has no place in academic conversations. Greenfield's view seems to require a rather shallow conception of what university professors should do. But not all work must come before Greenfield's tribunal of the contemporary and the relevant!

So Scott, loosen up, and let a thousand flowers bloom. Many law professors care about the social utility of their work while some don't--or at least they define utility more broadly than you might think worthwhile. But almost all care that the work being produced bears independence of thought and carefulness with the scope of claims. By encouraging aspiring law profs to emulate those qualities, Lipshaw, a former partner and GC at a big company, does no wrong.

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"The reason: if one can't persuade a law professor who studies the issue that one's got a problem worth studying and spending more time on, then there's not much comparative advantage between law professors and competent third year associates who can just spend a few hours reading and synthesizing the cases."

This type of comment bothers me. It suggests that the analysis of actual law and doctrine provide little intellectual challenge ("a few hours reading cases"). Perhaps this attitude is what leads scholars to disregard the study/practice of law in favor of more ethereal inquiries. I would be willing to bet, however, that the interpretation and application of the Internal Revenue Code (or several similarly complex statutory/regulatory schemes) provides far greater intellectual challenges than undertaking a Critical Race Theory Analysis of Harry Potter's World. (Of course, the Harry Potter piece, we are told, will be of great interest to members of the executive and legislative branches, even if practicing lawyers and judges just can't figure out why it's valuable.)

Nonetheless, I do think that some of the criticism levied against the original post ("Advice for Beginning Scholars") is unwarranted. I too cringed when I saw the admonition to make sure one is writing for other law professors, and not for the real world. But, that probably *is* sage advice for someone entering into the hiring market. The greater utility of legal scholarship is another question. (Also, as an aside, I don't think anyone would deny that there is a substantial body of useful legal scholarship out there; it's just that the proportion of such scholarship, measured against all legal scholarship, has suffered sharp declines in the past two decades.)

Posted by: andy | Oct 4, 2008 12:50:45 PM

Whoa--I think Mr. S.cotus owes some apologies here, especially to Prof. Rosenthal. It's perfectly fair to disagree with the merits of someone's ideas, however, that disagreement should also be done fairly. I am a colleague of Larry's, and while I don't agree with everything he says, I have to insist that it is unfair to toss off an ad hominem that is a grave insult to his academic reputation, one that shows not even an attempt actually to engage with his scholarship, and one based purely in malicious speculation.

Since he is likely too much of a gentleman to say it, let me note that Larry is precisely the model of a practitioner-scholar that most on these boards, including Mr. S.cotus, could only aspire to be.

Larry graduated from Harvard Law School, where he won the Fay Diploma (highest combined grade point average for three years of study at HLS), and was an editor of the Harvard Law Review. He clerked for Judge Prentice Marshall of the United States District Court for the Northern District of Illinois and Justice John Paul Stevens of the United States Supreme Court.

He served as an AUSA in Chicago, specializing in organized crime and public corruption prosecutions—he brought the first racketeering case involving insider trading. He became Deputy Corporation Counsel for the City of Chicago, and while there argued three cases in the Supreme Court of the United States. Since becoming a law professor, he has authored 5 briefs (including a respondent’s brief) in the SCOTUS, and engaged in litigation in other appellate courts, usually on a pro bono basis.

If you think that Larry has anything against scholarship per se, look at his c.v. As I noted, he was on the Board of the Harvard Law Review, and he is the author of 9 law review pieces--with hundreds of downloads logged on SSRN.

BTW, rather than take cheap and uninformed shots at an accomplished scholar-practitioner, the actual protocol of intelliectual discourse is to read what somebody publishes before making an ass of yourself. Larry's not hiding behind some pseudonym--his work is published and available on SSRN. If you wnat to know what he thinks, take a look. See especially his w.i.p. "Second Amendment Plumbing After Heller: Of Standards of Scrutiny, Incorporation, Well-Regulated Militias and Criminal Street Gangs," his NYU Law & Social Change piece on "The Crime Drop and the Fourth Amendment: Toward an Empirical Jurisprudence of Search and Seizure," and his Yale Law & Policy piece on "Policing and Equal Protection."

And, if that crack about "real law schools" was supposed to be a disparagement of Chapman, Mr. S.cotus again needs to do some reading up--a school with 5 faculty members who are fomer Supreme Court clerks, and which includes faculty like Ron Rotunda, clearly fits anyone's definition of the real thing.

Finally, Chapman's own Dean and 9 other current faculty members have earned doctorates (including me), and some of us think Larry sometimes pushes his concerns about academic scholarship a bit to hard. It's perectly possible to have that debate in an intellectually honest way. Mr. S.cotus should feel free to do that, but he needs to cut the crap.

Posted by: Ron Steiner | Oct 4, 2008 4:28:44 AM

Mr. Rosenthal, I think that you are making your statements to attain some political gain. You are trying to show that somehow you are different than other scholars, because you 1) you don’t mind a few poor people being beaten up; and 2) you used to work as a lawyer for an executive or legislative body. My guess is that you are saying this so that your law school will receive politically-motivated contributions, thinking that you are the “pro-cop” school. (Most law firms I know do not respond to applications from Chapman grads, because they feel that their reputations would suffer.)

Specifically, there are a few problems with your argument.

First of all, it may well be that some academic articles ARE of interest for lawyers and judges. In fact, I can say first hand that lawyers and judges will do Westlaw searches through “JLR” to see if anything supports their preconceived notions of the law. This isn’t really what academics generally want to be known for (and it isn’t what “Simple Justice” was talking about), but it is a useful thing that law reviews do.

Secondly, you do not really define what “significance” means. At real law schools, having a core of eminent legal scholars enables students to become better lawyers. The fact that a student is able to interact with a scholar means that he will have an easier time finding a job. This, itself, is an “impact” outside academe. For example, the judge I clerked for would reject anyone that didn’t have at least one reference from a nationally-known constitutional scholar without even looking at the writing sample. Without a long record of publication, none of these king-makers would ever be known. This might be a secondary effect of legal scholarship, but it is a very important one.

Third, Can you cite to one of your articles (in a law review) explaining what kinds of beatings or detentions are constitutionally permissible. Or, are you just arguing that in a gray sense of the word we would all be safer if the cops beat up poor people more often?

Fourth, I think you might be wrong in saying that legal scholars have no experience. Most of the younger generation of legal scholars seems to have spend a few years in government and/or private practice. (Usually about four years.) Few schools will hire someone with no experience. I think that you might have said this as a means to attract politically-motivated donations.

Posted by: S.cotus | Oct 2, 2008 11:42:56 AM

In my years as a lawyer to both executive and legislative bodies, I did not notice that what is currently considered mainstream legal scholarship these dasys had any more utility in those arenas for most practicing lawyers and judges. Beyond that, I wonder what the point is of "explain[ing] why something matters to other scholars." These days, in the main, legal scholars have so experience in the real world that their assent that something "matters" has almost no significance to anyone but themselves. Scholars, for example, are nearly universal in their condemnation of New York City's policing practices (I am a rare exception) -- but how has that "mattered" in the real world, where people put a premium on their personal safety?

If Holmes was right that the life of the law is experience and not logic, then the current generation of legal scholars that is likely to accomplish very little of significance outside of their own tight-nit community.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Oct 2, 2008 10:32:36 AM

Scott, I would never suggest that! Most blogging software lets you use "strike-through" to make changes that show you erred earlier, (or use brackets as I did), and I take that to be a typical norm; of course, I recognize that what I take to be a norm may not be, and so if that was your way of fixing it, then my apologies.

Posted by: Dan Markel | Oct 2, 2008 9:19:35 AM

But Dan, if I was to change the text in the body, it would make it appear as if I hadn't erred in the first place, and would fail to alert those who read the post prior to the correction of my mistake. This would be dishonest, which is why I change the title to note the update and then use the update to admit my mistaken attribution (not to mention the quote taken directly from your email).

Surely you're not suggesting that I be dishonest?

Posted by: shg | Oct 2, 2008 9:07:27 AM

Scott, it seems you continue to confuse my words with Jeff's in your comment and you didn't actually change the attribution in the text of your post and clarify which words were mine or Jeff's. Instead, you appended an update at the bottom of your post which still left things unclear in the text of your post. The comment about blind rage is some literary license modified by "apparently." No matter--Jeff's words are sensible and for purposes of this comment, I'll defend them for the context here.

On the merits, let me suggest that there's still an important difference between us, at least regarding advice to aspiring professors. Neither Jeff nor I ever said: abjure from social utility in one's articles. But the advice to a wannabe prof stands: their goal in law review articles should primarily be to convince other law professors that they have a problem worth engaging and a very solid indicator of that is whether other profs have already engaged on that issue. Of course, if the effects of that communication are such that they are helpful to courts or other decision-makers, so much the better, but the message of the law review article need not reach that extended audience for it to be an illuminating or good law review article. My own sense is that the fact of other profs engaging on something is usually a good indicator of its potential social utility but that is not always true for every area or sub-specialty.

Posted by: Dan Markel | Oct 2, 2008 8:44:55 AM

Let me give you my perspective on Dan’s problems.

Academics that claim to be “experts” in some areas often are not. Their work in the area shows they neither understand the theory nor practice behind what actual lawyers need to deal with on a daily basis. Instead, they write about what is “trendy” amongst law professors (which is why people call it a circle-jerk).

So, not only is their work not providing a good overview of the topic, but the conclusions they reach are next to useless. Would this help a legislator? Not really – but legislators (and some lawyers and judges) are not above using an article to justify their preconceived notion of “right” or “justice.” Seriously, I don’t know any legislator or staff member that reads law review articles (even the Fed. Soc.’s captive LRs) for ideas. No, they read them to justify their policy goals.

A similar case in point. Law professor blogs. With the exception of SL&P, most of the writers seem to be unwilling to stay up to date with caselaw, and instead opt to cite to cases a week old or more, or newspaper stores. They can’t even moderate a serious discussion in the comments box. What is up with this?

And the list goes on. Often professors are shocked by the state of the law and practice in an area whenever they make it to some bar association event. Strangely, they don’t normally write about it.

Posted by: S.cotus | Oct 2, 2008 7:12:05 AM

Below is my reply to your comment left at Simple Justice, which is essentially the same as your post here.

Dan, I appreciate that you've chosen to make a marked shift in your position in order to conform your original post to your current argument. It shows that you have far more flexibility than your denigration of "circle-jerk," invoking the stereotypical approach to avoiding "juvenile" language in favor of professorial-sounding language, suggests. As a practitioner, I have no such need to remain aloof. I can use language that conveys an image or idea without fear that I will be shunned by the academy for being juvenile. Indeed, I can accomplish quite a bit with one juvenile allusion, as demonstrated by your using it twice in your counter-effort. See how well the image worked?

It's unclear why you raise the point of using empirical data rather than case citations, since I agreed with Jeff and you completely on that point. As to my confusing the fact that these three points were originally Jeff's pearls, rather than yours, I changed the attribution as soon as you brought it to my attention, thought you neglected to mention this. At the outset of your post, it failed to grab me sufficiently to pay that close attention. My fault entirely, but to attribute it to "blind rage" takes a little too much literary license than ordinarily allowed. I would not call it disingenuous, however, since it makes your responsive post sound far more interesting at the outset, which was the failing of your original post. Had you been so hyperbolic in the first place, I would likely have paid closer attention to the details.

Your second point, however, is where this gets more interesting. You've now changed your point substantially to meet my criticism, and, defensiveness aside, our views are now more aligned:

"The point Jeff was making and which I seconded is that it's important for a good law review article to explain why something matters beyond just having the courts clarify some particular aspect of doctrine."

Originally, your point was:

"Remember your audience. It's not judges or practitioners. It's other law professors. Pure doctrinal work nowadays [is a risk] without sufficient theoretical or social science orientation for a hiring committee to say 'whoa, now there's a practitioner who really gets it.' "

You affirmatively state that the audience is law professors, and no one else. Now you say that the purpose includes judges, practitioners, legislative bodies and executive policy makers. That's great! Even though you don't want to admit it, you've now broken away from the circle-jerk and conceded that law review articles should have a purpose aside from impressing the chorus.

No one said that the "only reason for reading these pieces is to find out how it will help your client in litigation" (although this sounds like an awfully good reason to me), but you argued that this was a bad reason, a reason that would be frowned upon, bordering on worthless. Now that you've opened your mind to the possibility that law review articles can have some social utility rather than serve only to impress the hiring committee by use of the most popular big words in the academy du jour, perhaps there's hope yet. Talk about "loosen up," maybe those grand ideas would have an impact if someone outside the academy had a clue what you're trying to say. Loosen up, indeed.

Don't eschew the notion of law review articles being relevant. Even historical perspectives of laws can be relevant (see Heller, for example). There's nothing wrong with writing something that actually adds to the body of useful knowledge, as opposed to instructing wannabe lawprofs to avoid relevance at all costs.

Now that you've shifted away from the preclusive audience of law professors into the world where these ideas might do some actual good, whether to win in litigation, illuminate concepts for judges or sway lawmakers (those people who you said are affirmatively not the audience), perhaps all these hard work will have a payoff greater than getting hired or tenure, and add to the collective wisdom of the law.

Glad to see you come on board.

Posted by: shg | Oct 2, 2008 6:45:44 AM

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