July 8, 2011
Chief Justice Roberts Comments On Legal Scholarship Today
I am delighted to see that Chief Justice Roberts recently commented on contempory legal scholarship. The American Constitution Society Blog provides a picture of Chief Justice Roberts and summarizes his speech as follows:
Specifically Roberts claimed that legal scholarship is not relevant to the work of lawyers and judges, saying he is on the same page with Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit, who believes there is a great “disconnect between the academy and the profession.”
Roberts continued, “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”
A law professor responded "more often than not, published law review articles offer muscular critiques of contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decision-making on how law develops in the courtroom.”
Chief Justice remarks are right on point. The legal academy focus on theory and is largely composed of professors who never practiced law. Law schools look to hire someone with a JD/Ph.d from Ivy league school and give little weight to litigation or other legal experience. My own law review scholarship has been crticized by some as "practice orientated." Law review scholars often cite each other and some do not even cite cases.
Everyone I talk with about this agrees that there is too much focus on theory. But when are the law schools going to change? Unfortunately, I do not see change happening.
Mitchell H. Rubinstein
Maybe Rupert Murdoch should introduce a tabloid version of the law review. Law reviews are exactly the place for practicing attorneys and jurists to think of their profession in pure terms without the impingement of political pressure or emotional reaction that the practice oriented attorney must endure. The result of an individual's exposure to law review articles should not be to have one's own world-view consistently massaged, but to have it challenged and expanded; to be inspired to be more creative, and only perhaps, more just. It is one of the only places where someone in the Cheif Justice's position might be challenged, criticized, or even praised by someone who might reasonably be called a peer. But if one wants to continue to allow unstemmed flows of corporate money to secretly be introduced into federal elections, deny class status to millions of workers suffering under a common malfeasance, or remain intellectually pure for the next Bush v. Gore, then one might have a problem with that notion.
Posted by: Paul Adler | Jul 9, 2011 6:03:29 AM
Amen brother. I've been practicing law for 25 years and can count on one hand the number of law review articles I've actually read and used in the representation of a client -- and those have all been some very specific discussion of a rule of civil procedure or a doctrine of law (i.e. the practice oriented articles that are so put down in the ivory tower.) And when I clerked on the court of appeals all those years ago, we never read law review articles. It's time that law schools and law professors understand that we are in a profession, and aim to teach skills and publish information that aid us in our profession. And don't even get me started on law schools and thier writing programs. I've been out 25 years and hired hundreds of law students as associates, and the first thing we do is to get them to stop writing like law professors and start writing like advocates. Law school writing and the "law review" style that is taught for academic writing (student articles and student papers) is entirely useless in the day to day practice of law.
Posted by: Barry | Jul 9, 2011 6:36:46 AM
Even Bar Journals, which once upon a time provided timely and useful advice for the practitioner, are now packed with articles on the importance of pro bono, community service, and other "social" issues. It's useless -- not to mention preachy.
Posted by: CaptainVictory | Jul 9, 2011 3:30:06 PM
Mr. Roberts' critique can also be viewed as the principal reason education costs are now out of control; there is no natural incentive for academia to remain tethered to reality. We thought an Ivory tower of truth fundamentally funded by a large monopolized bureaucracy would produce objective and disinterested thought. We were wrong.
Posted by: Jim | Jul 9, 2011 3:35:02 PM
You've convinced me! Great job! I'm sure you're an empathetic jurist.
Posted by: Jill | Jul 9, 2011 3:51:40 PM
This doesn't do much for me. I'm not sure why it surprises anyone that academic journals are academic rather than practical. I've never heard anyone criticize Hawking's work because it doesn't help them when they want to fix their car.
This smacks of but more Supreme Court self-aggrandizement. Remember the cute story where Roberts's son told someone "Well, there's God, then the President, then my dad"? You think he came up with that on his own at five? Maybe, John, not all of us write with making your job easier as our motivation.
Posted by: Pedro | Jul 9, 2011 3:59:40 PM
"...think of their profession in pure terms without the impingement of political pressure or emotional reaction..." (snigger)
No, it's just a different political pressure and emotional reaction. You don't get that, even now?
Posted by: Assistant Village Idiot | Jul 9, 2011 4:20:21 PM
I am an engineer but I note that the legal profession is no different from any other profession "Those who can do, and those who cannot teach". It was my Analytical Geometry Professor in India who told us that and added "I teach". He was a good Professor and recognized his limitations. U.S. Academics would be well advised to heed his words.
Posted by: Zain | Jul 9, 2011 4:37:17 PM
As a retired lawyer, age 80 years, I just wish the law schools would return to teaching the basics of reading the law. What has been done over the years to twist provisions in the Constitution and Statutes makes my head ache.
Posted by: jimbrock | Jul 9, 2011 5:04:44 PM
Mr Addler that is very inter...zzzz
Posted by: lol | Jul 9, 2011 6:03:41 PM
While I understand that many practicing attorneys do not use law review articles because they should really never be cited in briefs or motions, many law review articles are replete with useful cases and information that helps you build a stronger case and theory than just using statutes and cases alone. The entire point of legal academic writing is to present novel issues or novel viewpoints on contemporary issues in the law. Sure, there are journals focused on irrelevant and esoteric issues like Kant's influence on 18th Century Bulgarian evidence laws, but to discount law review articles altogether is absurd. If you want to knock academia for its obscene obsession with hiring only from ivy law schools or the focus on theory, fine, but to discount all law review writing as useless is a gross over generalization.
Posted by: TM | Jul 9, 2011 7:12:25 PM
The bottom line is, legal scholarship is phony scholarship by phony lawyers. Law "professors" would probably wet their pants if confronted with having to master Ugaritic or Brownian motion or something else requiring effort and intellect instead of sonorous gibberish and applied politics.
Posted by: Tarquin the Meek | Jul 9, 2011 7:16:28 PM
"I've never heard anyone criticize Hawking's work because it doesn't help them when they want to fix their car."
I've never heard of anyone hiring a theoretical physicist to repair a car.
Although, most law review articles are about as relevant to my practice as Hawking's work would be to a mechanic. The difference, of course, is that Stephen Hawking doesn't pretend that his scholarship is somehow an integral component of the automotive mechanic profession.
Posted by: Anonymous | Jul 9, 2011 10:11:03 PM
I have been a practicing lawyer since 1980. I almost never find law review articles helpful. I quit reading them long ago because it was largely a waste of time. As an aside, I have litigated against law professors, who took high profile constitutional cases, and in every instance they were poor litigators: lacking in judgment, using cookie cutter approaches to complex problems, lots of inside the box thinking -- sort of like the Department of Justice, now that I think about it.
Posted by: Jack | Jul 10, 2011 5:08:25 AM
AVI - I think the full quote is: "Those who can, do, those who can't, teach, and those who can't teach, do HR."
Posted by: dl | Jul 10, 2011 7:17:38 AM
I think the point of a good law review article is not to teach something practical, but it should be to influence future thinking about the law. And in that respect, it is still largely a failure. Only occasionally will I stumble across a law review article that says something interesting about where things are headed in my area of the law, while there are lots of articles trying to strike political points or that are otherwise pretty irrelevant. In contrast, I am a senior enough practitioner to know a number of equally senior practitioners in my area any one of whom has thought deeply enough about the area while actually practicing so as to be able to make any number of observations about how things got to where they are, where they are headed and perhaps where they ought to be headed instead, and why. The difference? At the senior levels of the major firms and law schools, there really isn't much difference in academic ability, but much difference in actually practicing. I don't think this means that the academy should necessarily include more practitioners, but it would certainly help the academy to communicate more with the practitioners.
Posted by: Arthur | Jul 11, 2011 6:11:45 AM
Whatever. There are a mind-boggling number of articles written by practicing attorneys that are published in bar and association journals. There are also entities like PLI that are constantly organizing around the country CLE presentations by partners at large law firms and that make videos of older presentations, as well as the written materials for those presentations, available online. Many well respected attorneys actively maintain blogs about issues of interest in their areas of practice. By no means does our profession lack outlets for providing insight on issues that come up during actual practice of the law. Maybe the point is that practicing attorneys, not professors, are best suited to write articles on those issues. Unlike some professions, many practioners in ours get daily practice in advanced writing.
At the outer bounds of the law there are very difficult issues that can only benefit from thoughtful consideration of the whole of human experience. I am glad that law reviews provide an outlet for articles on legal theory.
Posted by: AP | Jul 11, 2011 7:24:12 AM
It is rather interesting to see the same issues in law as in engineering. However, in contrast to some of the remarks posted, I am seeing more practitioners, in law as well as engineering, donating their time and experience to teach. Generally these courses are far more practice and far less theoretically oriented. With a few word substitions, the foregoing article and ensuing comments would fit equally well on an engineering website. Perhaps the issues are not with regard to law or engineering but are generic to the practice and education of a profession.
Posted by: James Cohen | Jul 11, 2011 11:11:34 AM
A practice tip from another professional advocate: I would suggest that "[e]veryone I talk with about this agrees [with me]" is equally compelling evidence for either of the following two propositions: (i) everyone who is important agrees with me; or (ii) I only talk to people who agree with me.
In fact, your conclusory statement doesn't prove much. My personal experience with law reviews and journals does not conform with yours -- i.e., I find them useful as aggregators of legal authority on narrow topics, and occasionally for their insight. If your intent is to persuade, you might have more luck if you drill into the reasoning of those who disagree with you than by simply quoting them and then saying everyone you know thinks you're right.
Posted by: John Rue | Jul 11, 2011 12:05:00 PM
It is time that law school focused on training students to be LAWYERS - not LEGAL ACADEMICS. As a first change, only practicing attorneys should be allowed to be law professors. It is ridiculous that academics who have no experience (or minimal experience) in the practice of law are teaching students. It's the blind leading the blind. Follow the medical school excample - only doctors that perform surgery on a regular basis teach medical students surgery. You don't have a non-surgeon teaching "theory of surgery" to students. It is equally ridiculous to have a non-practicing lawyer trying to teach the practice of law.
Posted by: Anonymous | Jul 11, 2011 12:16:32 PM