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Tuesday, July 12, 2011

Judges: Ask not what legal academics can do for you, but what you can do for legal academia!

Apropos Chief Justice Roberts' kvetching about the irrelevance of legal scholarship not long ago, y'all might be interested in this post I received from a prawf at Harvard Law School. Use the comments to guess who wrote it.

The Growing Disjunction between Legal Scholarship and Judicial Practice:

A Profession in Crisis?

Not so long ago, legal scholars and practicing judges had a healthy and mutually beneficial professional relationship.  Indeed, there was a time when academics and judges saw themselves as part of a common enterprise devoted to the understanding and improvement of law.  Over the last generation, this has changed profoundly.  Unfortunately, the last several decades have witnessed the emergence of a large and ever-widening disjunction between legal scholarship and judicial practice.  It is fair to say that this disjunction has reached crisis proportions.  Of course, there are those who, either out of complacency or personal investment in the existing system, do not see this growing disjunction as a serious problem.  But it is a serious problem, and unless we honestly recognize it as such and take steps to fix it, the productive and symbiotic relationship between legal academics and practicing judges may break down completely.

That a disjunction between legal scholarship and judicial practice exists is self-evident.  If you leaf through any volume of the U.S. Reports or the Federal Reporter, you will hardly ever find any judicial opinions of the slightest use to legal scholars.  Most published judicial opinions are on obscure, mundane, and basically uninteresting topics like whether a dredge counts as a “seagoing vessel,” or whether some bankrupt coal company can unload its pension obligations on a successor, or whether the admission of some piece of meaningless evidence in a trivial case was properly excluded under an exception to an exception to the hearsay rule.  Even when judges do take on issues that are relevant to academic practice, their opinions are typically written in such a way that makes them unhelpful for legal scholarship.  Indeed, most academics – who are working to better understand and predict the practical consequences of legal institutions for human welfare, to elucidate how the law operates and evolves as a social institution situated in a particular historical context, to delve deeply into the moral and ethical dimensions of legal decision-making, and indeed to better understand the concept of law itself – will find little to help them in the turgid, arcane, and essentially irrelevant discussions in most published judicial opinions.  In fact, I have many colleagues in the legal academy who no longer even bother to read judicial opinions, they have become so useless for serious legal scholarship.

Things have gotten so bad that it’s not clear that anyone reads most judicial opinions these days, except for other judges. 

When judges write only for one another, rather than for a broader audience of legal academics, the practice of judging threatens to become insular, self-indulgent, and intellectually irrelevant.  Of course, judges may still be performing a useful function, in that they can help resolve mundane, or very occasionally consequential, legal disputes.  So I suppose the increasing insularity of the judicial community may not matter if the only role of the judge is to be a kind of bureaucratic functionary.  But many of us subscribe to the old idealistic notion that judging can be something more than that – that judges can contribute, in a very real way, to the scholarly enterprise (though admittedly as junior partners).  In order to do that, however, judges need to stop writing just for other judges, and to start writing in a way that their opinions will be useful to academics.


In order to figure out what to do about the growing disjunction between the legal academy and the bench, we must understand the reasons this disjunction exists.  While it is hard to give a definitive explanation (and there are probably many causes), a few possibilities stand out.  One is that these days fewer and fewer judges join the bench with serious academic experience.  In days gone by, a larger fraction of judges had spent significant time in academic practice (not just one or two summers as a research assistant) before becoming judges, and as a result these judges had both better academic training and a greater sensitivity to the needs and interests of professional scholars.  These days, however, most judges are much likely to have backgrounds as practicing lawyers rather than as academics.  This is a problem.  Those who are responsible for appointing and promoting judges should give prospective candidates much more credit for serious academic experience than they currently do.  Yet today – hard as this is to believe – there seems to be some discrimination against judicial candidates with serious academic credentials.  If we are serious about narrowing the gap between legal scholarship and judicial practice, the thumb should be on the other side of the scale: we should be willing to appoint judges with meaningful academic experience, even if they don’t have all the conventional hallmarks of achievement as practicing lawyers.


A second explanation for recent trends may have to do with the fact that judicial practice these days places less and less emphasis on “interdisciplinary” judicial reasoning than it did in earlier times, when judges would routinely draw on ideas from moral philosophy, history, and social science when making their decisions.  As judicial decisions have become ever more doctrine-oriented, they have had less and less relevance to legal scholarship.  This may have less to do with any essential requirements of judicial practice, though, and more to do with the current preferences and proclivities of judges, as well as the people who hire and promote them.


These two explanations may both be manifestations of a larger, and troubling, cultural trend in the judiciary.  Most judges do not self-identify as scholars, but rather as legal practitioners.  Indeed, even those judges with serious academic abilities consider themselves judges first, and only scholars by happenstance.  Moreover, even those judges who do have an interest in writing opinions that are useful to legal academics – opinions that engage with serious intellectual problems using rigorous research methods – face daunting social and professional pressure not to do so.  I gather that some judges will quietly complain to friends and colleagues that they are worried that their prestige and chances of career advancement may be harmed if they are seen as “too academic” or “not practical and doctrinal enough.”  Changing a culture is hard, but doing so may be necessary if the current crisis is to be redressed.


Of course, not everyone agrees that there is really such a crisis.  “So legal academics don’t find much useful in published judicial opinions,” these skeptics say, “So what?”  While some of the skeptics take the obviously untenable position that judges and legal academics have fundamentally different jobs (so that it would be unfair to judge one profession by how much it is helping the other profession do its job), a few of the skeptics do raise some objections that are worth taking seriously.


First, some of the skeptics assert that it is wrong to blame the judges for their failure to write for an academic audience, because the judges rightly believe that academics do not really care what judges think.  Those holding this view often lament that the legal academy is so politicized – with scholars determined to reach particular preferred conclusions – that legal academics will at best selectively quote only those judicial opinions that support the academics’ preconceived notions, rather than really engaging deeply with judicial opinions that might argue cogently for a contrary position.  On this view, the disjunction between legal scholarship and judicial practice is indeed a problem, but the fault lies with the academics for not being willing to listen, rather than with the judges.  There may be something to this, but most academics I know would be thrilled to read a really good judicial opinion that engaged directly and intelligently with their latest research project.  It seems to me that the real problem is that such opinions are so rare.


Another skeptical objection is that academics do not really need judicial assistance these days in the same way that they might have in earlier generations.  After all, legal academics have access to advanced computer search engines (including Lexis and Westlaw), as well as paid research assistants and professional support staffs (much as judges have law clerks and similar administrative and research support).  These skeptics would assert that academics can do their own research, and it’s a sign of narcissism or laziness when scholars complain that the judges aren’t doing enough to help the scholars do their jobs.  This is profoundly unfair to legal academics, and it also reflects a fundamental misunderstanding of the role of the judge, which is to contribute useful material for academic progress.


In sum, this short comment is really a plea from a representative of the legal academy to the bench: You have the potential to make a real contribution to a vital social enterprise – the advancement of human knowledge about the nature, purposes, and effects of law.  This potential has been realized in the past, and can be again if you are willing to make the effort.  Resist the temptation to retreat into the comfortable cocoon of writing only for other judges and practicing lawyers, as this will eventually lead to the total irrelevance of the judiciary to the scholarly enterprise.  Rather, you should strive to write opinions in a way that will inform, enlighten, and – yes – even influence practicing legal academics.


Posted by Administrators on July 12, 2011 at 03:45 PM in Article Spotlight, Blogging, Constitutional thoughts, Current Affairs, Legal Theory, Life of Law Schools | Permalink


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All through the text I was praying that this was intended to be humorous. It had to be because of its absurdity. Given the comments I see others made the same assumption and most likely for the same reasons--the writer had to be kidding.

BUT what if he/she was serious?

Posted by: David Barnhizer | Nov 5, 2015 3:46:51 PM


Posted by: dave hoffman | Jul 14, 2011 8:05:21 PM

Charles Fried?

Posted by: Brian Tamanaha | Jul 13, 2011 9:38:09 AM

This was wonderful, although I must admit to skimming a bit towards the end. Legal academics these days are clearly uninterested in providing material to casual readers looking for a quick laugh. The breakdown of this relationship is unfortunate.

Posted by: Andrew MacKie-Mason | Jul 12, 2011 7:24:25 PM

That IS funny. Too snarky to be the Dean herself, probably -- but I did hear the Dean say Friday, at the Cleveland Club, that she had just had the inspiration to send Justice Roberts an HLR to show him that there's practical stuff in it. Optimally she'll enclose this (dangerously seductive) parody as well.

Posted by: Jim von der Heydt | Jul 12, 2011 5:55:55 PM

I'd guess David Shapiro, but only because of his hilarious "Death of the Up-Down Distinction." But that piece was also wonderfully concise, and this one is less so. So, perhaps it was someone else? I can't claim familiarity with the presumably refined senses of humor of the HLS faculty . . . .

Posted by: John | Jul 12, 2011 5:54:30 PM

Very funny! Although it did go on for a little too long.

Posted by: guest | Jul 12, 2011 4:04:46 PM

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