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Friday, July 26, 2013

Cited in the Supreme Court: Stephanos Bibas

This is the sixth in a series on scholars cited this term in the U.S. Supreme Court.

Stephanos Bibas teaches criminal law and procedure at Penn. Sbibas

Congratulations on being cited in the Supreme Court.  What was the work and how was it used?

The article was Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L.J. 1097, 1123-32 (2001), the first big article I wrote, which was my job-talk paper while I was still on the entry-level teaching market.  Justice Alito's dissent in Alleyne v. United States (U.S. 2013) cited it and two other scholarly articles to show that the historical evidence contradicted Apprendi v. New Jersey's supposedly originalist reading of the Sixth Amendment.

In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?

I always try to tackle questions of practical importance in an accessible form, so that courts and practitioners as well as scholars can use them.  But I'm realistic.  Not many judges or practitioners care much about scholarly articles, or even are aware of many of them, so I'm always pleasantly surprised when one of them finds and relies on my work.

Do you do anything in particular to share your work with practitioners?

Not particularly.  After Oxford published my first book The Machinery of Criminal Justice, I guest-blogged about sections of it at The Volokh Conspiracy and Sentencing Law and Policy, and I've spun off ideas from it for First Things' website and National Review.  I probably should do more of that, because blogs and aggregators are good ways to broaden an audience.

What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?

I think the Chief Justice had a point.  Now, many academics aren't trying to influence judges or lawyers directly but rather offering academic critiques.  But I do think we've lost something in becoming so abstruse and theoretical that many of our articles no longer seem relevant to the practice of law.  One of my scholarly ambitions is to bridge the chasm between theory and practice, to offer theoretical and policy critiques while remaining abreast of and relevant to what's happening on the ground.  I also buy Orin Kerr's point that professors often don't have enough of a feel for the sweet spot between airy-fairy dreaming and just brass-tacks doctrine.  It's helpful to offer a vision of the law that is coherent and theoretically grounded, yet restrained and practical enough that judges could plausibly implement it in the real world.

 Are you happy with the way your work was used?

Yes, except that my work on the Apprendi line of cases never garners more than four votes on the Court! Justice Kennedy cited a piece by Doug Berman and me in his dissent in Cunningham v. California (U.S. 2007), and Justice Breyer repeatedly relied on my Yale piece in his dissent in Blakely v. Washington (U.S. 2004).  In response, Justice Scalia's majority opinion in Blakely blasted me as "a law professor and former prosecutor," citing my AALS bio.  I was not yet tenured then and quite happy to have the Justice attack me ad hominem so long as he spelled my name right (which he did).

What advice do you have for scholars who want their work to be influential in the courts?

Try to write pithy, quotable lines.  Tackle timely topics that matter.  Maybe send your work to litigants in pending cases raising your issue, or consider writing or assisting on an amicus brief to highlight how your argument might illuminate the Court's consideration of an issue.  And don't dress up your insights in The Emperor's New Clothes of the latest abstruse interdisciplinary terminology--people see through that as just plain bad writing.

Did your family or colleagues do anything for you when the opinion case out?

No.  A couple of circuit judges and practitioners I know congratulated me, but I no longer have to worry about tenure so it's not something I needed to trumpet.  Besides, it's not as if the Court ultimately heeded me.

What else you would you like to add? 

Thanks for interviewing me!  It's good to have this prompting to reflect on what we do and why.

My pleasure!  Thanks for your insights.


Posted by Jack Chin on July 26, 2013 at 02:09 PM in Scholarship in the Courts | Permalink


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You didn't put in the full quote:

"The implausibility of JUSTICE BREYER'’s contention that Apprendi is unfair to criminal defendants is exposed by the lineup of amici in this case. It is hard to believe that the National Association of Criminal Defense Lawyers was somehow duped into arguing for the wrong side. JUSTICE BREYER'’s only authority asking that defendants be protected from Apprendi is an article written not by a criminal defense lawyer but by a law professor and former prosecutor. See post, at 4–5 (citing Bibas, supra); Association of American Law Schools Directory of Law Teachers
2003–2004, p. 319."

Posted by: Anon | Jul 28, 2013 5:05:15 PM

I think it a fair characterization of Scalia's tone. "JUSTICE BREYER's only authority asking that defendants be protected from Apprendi is an article written not by a criminal defense lawyer but by a law professor and former prosecutor. See post, at 4-5 (citing Bibas, supra); Association of American Law Schools Directory of Law Teachers
2003-2004, p. 319."

Posted by: erika | Jul 27, 2013 1:01:32 PM

Small point. But I had a hard time believing that Justice Scalia "blasted you." For those of you wondering the same thing but too lazy to click on the link to the case, he didn't.

Posted by: Anon | Jul 26, 2013 11:37:42 PM

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