Scholarship vs. Judging/Lawyering

Part of the reason legal scholars fail to clearly distinguish descriptive and normative claims is that they focus more on the “legal” part of their title than the “scholar” part. Almost all legal scholars trained as lawyers rather than scholars, and they fall back on approaches better suited to the profession they trained for. Nevertheless, scholars must recognize the descriptive-normative distinction if they hope to make clear, theoretically-sound arguments. Arguments that are neither clear nor theoretically sound have limited practical value no matter how well attuned they are to real-world legal issues.

There are two big reasons why legal scholars mush their descriptive and normative claims together. First, scholars mush together their descriptive and normative claims because they see judges and lawyers do it all the time. Based on their legal training, scholars think that claims about what the law is often sound more persuasive than claims about what the law ought to be, and they seek the same rhetorical effect that judges and lawyers seek. Law professors mistakenly believe that scholarly discussions of law are similar to discussions of law in court. They fail to recognize that the job of a scholar is very different than the job of a judge or a lawyer; scholars have more demanding requirements of clarity, transparency, and rigor. Lawyers, by contrast, are sometimes professionally obligated to be insincere, and many judges, no doubt, are insincere, writing as though the law is perfectly clear even when it was not prior to the judge’s opinion. Surely some judges take their opinions to be sincere. But I hope judges are frequently insincere when they make confident assertions about legitimately disputed issues because the alternative is that they are simply overconfident in their abilities and sorely unable to recognize genuine indeterminacy. As educators, we do too little to make the distinction between scholarship and legal advocacy clear to law students, so those that become, say, lawyers, judicial clerks, and eventually legal scholars haven’t been trained to make the appropriate distinction or to recognize its importance. (Re'em Segev and I previewed some of these matters in the comments to Monday's post.)

Second, it’s very difficult to combine the weight of law-related moral considerations with the weight of moral considerations unrelated to law. So legal scholars throw their hands up and speak about law and morality as though there’s no difference. Though the task is surely difficult, the weight of different kinds of considerations can be at least roughly combined. Legal scholars should rise to the challenge of addressing such tasks rather than simply ignoring them.

Judge Nancy Gertner (ret.) has provided a glimpse into how judges craft opinions in ways that massage their underlying views. In a 2014 law journal, she wrote about Damien Perry, a convicted drug conspirator she sentenced in 2000.[1] Perry had a troubled upbringing, and at age sixteen, about five years prior to his sentencing, he and a friend were playing with a gun when it accidentally fired and shot Perry in the head, causing Perry to lose his left eye. The bullet remained in his head, causing severe headaches, occasional seizures, and considerable psychological trauma.

When it came to his sentencing for drug-related activities, the government recommended 135 to 168 months’ imprisonment. Judge Gertner, however, considered his activities comparatively minor and would have liked him to receive only probation. Sitting at a time when federal sentencing guidelines were understood to be mandatory, Gertner lamented Perry’s treatment under the guidelines. She seemed pleased to find a reason, any reason I think she candidly implies in a law journal, to reduce his sentence:

Although the Guidelines were mandatory, I worked mightily to interpret them in as humane a way as I could. There was a little used category for “extraordinary physical condition” under the Guidelines that enabled a departure. To protect against reversal, I wrote a lengthy opinion about the category “extraordinary physical condition,” and how it applied to Damien. . . . Guideline-speak obliged me to write about “bullets in the brain,” Damien’s “extraordinary physical circumstances.” I wrote “Damien Perry has a bullet in his brain. The question is whether that is an extraordinary physical circumstance sufficient to warrant a downward departure. To ask the question, is to answer it.”[2]

I think her description in the law journal reflects a heavily results-oriented approach to sentencing. Her focus is on how to reduce Perry’s sentence much more than it is on the niceties of interpreting the sentencing guidelines. One reason I say this is that, even if the downward departure were correct as a matter of law, it’s no slam dunk. Hence, her judicial opinion seemed to speak hyperbolically when it stated, “To ask the question, is to answer it.”[3] Indeed, its hyperbolic nature is revealed by the fact that she follows it up with actual legal discussion. But it’s noteworthy that her position is much more open and direct in the law journal than in her judicial opinion.[4] She states quite frankly in the law journal that she would have liked to give Perry only probation, but she “knew that if [she] had departed from the Guidelines to that degree, the First Circuit would have reversed [her] in a nanosecond.”[5]

By no means am I here criticizing either Judge Gertner’s judicial opinion or her journal article. I make no claim that judicial opinions ought to reflect scholarly values of openness and transparency. Perhaps Gertner should be commended for her heroic handling of Damien Perry’s sentence. Quite possibly, judicial insincerity and overconfidence have positive effects. Perhaps they make laypeople think that they live in an orderly world, increase their satisfaction with the judiciary, and make litigating parties feel like justice was served. Or maybe they have none of those effects. My point is that there is probably quite a bit of judicial insincerity and overconfidence, and even if they have a place in the legal system, they are qualities at odds with good scholarship.

Scholars are supposed to make objective claims, voiced with appropriate caution. Whatever rhetorical benefits scholars hope to gain by treating “ought” assertions as “is” assertions are dramatically outweighed by the concomitant loss of clarity, transparency, and rigor. And relative to most judges, scholars have considerably more control over their time, tasks, and workloads. Judges must often opine on matters about which they lack deep expertise, while scholars should generally avoid doing so. Scholars should take the time to investigate factual, conceptual, and normative matters so that their scholarship can be open and transparent without feigning overconfidence or mushing together conceptually different claims for rhetorical effect. Legal scholarship should be held to a higher standard of clarity, transparency, and rigor than legal or judicial practice.

      [1].   Nancy Gertner, How to Talk About Sentencing Policy—and Not Disparity, 46 Loy. U. Chi. L.J. 313, 313 (2014).

      [2].   Id. at 323 (footnotes omitted).

      [3].   In the opinion itself, though, Judge Gertner wrote, “To ask the question is almost to answer it.” United States v. Lacy, 99 F. Supp. 2d 108, 118 (D. Mass. 2000) (emphasis added), aff’d sub nom. United States v. Dedrick, 16 F. App’x 10 (1st Cir. 2001).

      [4].   Id. at 114–19. Some facts are pitched slightly differently in the law journal than in the court opinion. In the journal, Judge Gertner states that Perry “and a friend were playing with a gun . . . [and it] accidently fired.” Gertner, supra note 93, at 321. In her legal opinion, by contrast, she writes that “a friend of his was playing with a shotgun and it accidentally discharged.” Lacy, 99 F. Supp. 2d at 114. The version in the legal opinion is more likely to create the impression that the friend was responsible for the accident while the version in the journal more readily allows for an interpretation in which Perry is partly culpable for his own injury.

      [5].   Gertner, supra note 93, at 323.

This post is adapted from How to Fix Legal Scholarmush, forthcoming in the Indiana Law Journal.