Who Should be the Audience for Legal Scholarship?

“Modest” is not the first word that comes to most people’s minds when asked to describe me.  (“Pasty” and “bald” are popular choices.)  That’s pretty common for law professors, in my experience.   (That is, the self-confidence, not the baldness.)  Nonetheless, this post is in praise of the modesty of contemporary legal scholarship.

Many practitioners, from C.J. Roberts on down, have been heard to complain (read the comments!) about the “irrelevance” of recent legal scholarship to their work.  These complaints are, in a sense, factually wrong.  There is tons of doctrinal scholarship being produced today, much of it quite fine.  But to find it, you probably have to read a journal with “of” in the title, or a general-interest journal from a law school with a relatively low U.S. news ranking.  So really, the complaint is that gate-keepers at the most selective journals do not value the same things practitioners do.  It’s not an invalid complaint: being able to rely (at least to some extent) on gate-keepers to screen for quality is highly valuable for time-constrained actors.      

Perhaps, then, there is a need for some signal of quality for highly practical scholarship.  (The ABA’s journals seem a useful step in that direction.)  I nonetheless want to defend the status quo in which such scholarship is not highly prized by the academy, and therefore not prized by the gate-keepers who have internalized our norms. 

In short, I believe doctrinal scholarship should be viewed with some wariness because, in speaking directly to legal policy makers, it partakes of a perilous immodesty.  Purely theoretical scholarship, on the other hand, by whispering in the ears of other ivory-tower dwellers, is better suited to our limited capacity as scholars.  Lots more after the jump.

My basic assumption is that law is policy, and choices of legal doctrine have consequences.  Much of the modern intellectual trend away from judge-made law rests on those claims.   (Though I don’t want to discount the role of ideological efforts to entrench the politically powerful against the threat of litigation, and to diminish the influence of trial lawyers.)  While courts have strengths, the fact remains that their judgments typically represent at best an agreement among a handful of smart people.  And that’s a problem when the world is as complex as it is.  

We could say the same thing about scholarship.  Brandeis was brilliant, but on and off the bench he missed a lot of important points, too.  (E.g., about that laboratories of democracy business).  For any one of us to claim that we’re clearly right about what the law “is” (or, implicitly, should be) just strikes me as overwhelmingly likely to be wrong, or at least perilously incomplete, most of the time.  Yet it isn’t clear that this limitation is apparent to policy makers who consume “doctrinal” scholarship – the scholarship that speaks directly to lawmakers and makes claims about legal policy should be.

“Theoretical” scholarship, then – scholarship that speaks to other scholars, and not to a lay audience – is insular, but appropriately so.  That is the modest course.  (It is also is more consistent with a modern understanding of statistical inference.)  We debate with each other because that is how we move closer to a fully-informed truth, or at least to a position we can agree is most defensible given the limited information available to us.  Doctrine emerges at the end of this process, in spinning out the consequences of consensus theoretical positions for discrete applications.  We do what judges should do, would do, if they had endless time.  (I leave for another day the question of whether the optimal institutional design follows the u.s. in joining theorizing to teaching, but separating out judging and lawmaking.)    

Of course, sometimes crises demand immediate answers.  Sometimes the best guess is better than doing nothing.  Sometimes doing nothing leaves in place an existing baseline that is clearly inferior to most other options.  But given the stickiness and path dependence of legal choices, in particular, it is often wiser to measure twice and cut once.                         

To be clear, “doctrine” and “theory” as I’ve sketched them are points at the ends of a continuum.  Nearly all legal scholarship is considerably more “practical” or doctrinal than the median of any other major academic discipline.  In many ways, I see that as the emerging role for legal scholarship: moving foundational ideas from elsewhere in the academy closer towards some possible real-world implementation.  That “translational” task suits our skills as explainers, negotiators, institution-builders, and problem-solvers.  But even translators should be cautious.