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Wednesday, May 15, 2013

The Getting (Criminal Law) Scholarship into Courts Project: Litigate This

I'm involved in a new project designed to connect practicing criminal lawyers with useful legal scholarship.  I am very excited about it, because, contrary to some, I think law review articles are frequently relevant to legal issues decided by courts.  Every month, a committee of practicing and academic lawyers will identify a set of articles about issues practitioners might want to raise in their cases, and the NACDL will circulate them.  Here's the first batch, featured in the NACDL magazine, The Champion, which includes papers by Deborah Denno, Glenn Reynolds & John Steakley, and Deborah Tuerkheimer. 

The premise is that practitioners do not have time to read law review articles systematically because,  many articles, even in the criminal area, will be distant from the kinds of claims and arguments cognizable in court.  The result is that lawyers may never see law review articles that could be sources of ideas, cases, and authority. We hope and believe there will be an appetite for innovative, ready-to-litigate  articles.  We invite all Prawfs readers to nominate recent articles written by themselves or others which might be of interest to lawyers litigating cases (contact Andrew Ferguson at aferguson -at- udc.edu).

My view is that the generally low visibility of articles is unfortunate for both professors and practitioners. 

Society invests massively in scholarly legal research.  The work is uniquely important, at least potentially; legal academics do something no other institutional player can do.  My thoughts about our role developed when I was an LL.M. student.  A dear classmate from the Philippines, who was already a law professor there, told me that at some schools faculty earned $5 per class, and that it was necessary for many or most faculty to practice law in addition to teaching.  The United States, by contrast, finances a fairly large, full-time legal professoriate.  As a result, there is a body of lawyers whose interests go to the system as a whole rather than the interests of any individual client, and whose capacity is independent of what any client is willing or able to pay for.   I suspect, for example, there are only a handful of criminal cases in any given year in which it is possible for an experienced practitioner to work on a single legal question for, say, three months, a summer, full time.  But in the legal academy, that sort of focus is utterly routine.  In many instances the scholarship that results is important, worthwhile and relevant.

I hasten to add that the project's focus on litigable papers is not meant to denigrate more theoretical, historical, or empirical work, which can be influential and important in its own way.  But this particular project is intended to link academics and criminal practitioners. 

The current Academic Advisory Board consists of Shima Baradaran (Utah); Doug Berman (Ohio State), Stephanos Bibas (Penn); Jack Chin (UC Davis); Roger Fairfax (GW); Andrew G. Ferguson (UDC Clarke School of Law); Carissa Hessick (Utah); Cecelia Klingele (Wisconsin); Wayne Logan (FSU); Margaret Colgate Love (DC practitioner); Michael J.Z. Mannheimer (NKU); Marc Miller (Arizona); Song Richardson (Iowa); Jenny Roberts (American); David Rudovsky (Penn); Giovanna Shay (Western New England); Andrew Tazlitz (American); Yolanda Vasquez (Cincinnati); and Ron Wright (Wake Forest).   Needless to say, this blog post represents only my views.


Posted by Jack Chin on May 15, 2013 at 09:40 AM | Permalink


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It sounds like you intend to focus only on articles focused on defense arguments. (I don't foresee you promoting Paul Cassell's victim-side work, for instance.). Perhaps you should rename and redescribe your project to reflect this.

Posted by: Misdescription | May 17, 2013 9:51:05 AM

Great project! The connections between legal/legally relevant research and practicing lawyers are definitely in need of improvement. The big issue is whether it will work. Do you have any evaluation mechanism in place?

Posted by: Erik Girvan | May 15, 2013 11:52:41 AM

I suspect you meant to say "practicing criminal defense lawyers," as many of the criminal lawyers are no longer practicing.

Posted by: shg | May 15, 2013 10:29:46 AM

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