Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, December 13, 2011

The Sad State Of Legal Scholarship Today

Professor Ian Bartrum (UNLV Law School), wrote an interesting blog post for Prawfs Blawg, here, where he raises the question whether professors should write articles with an eye towards being cited by a court. Though I applaude this professor for raising this important issue, my view is that the legal academy has materially degraded legal education today by focusing on legal theory which means virtually nothing to the students who pay their salary. These same professors often assign those law review articles as required reading, leaving many students with a distaste for legal scholarship. My complete posting is set forth below:

I am an adjunct law professor who has published 16 law review articles and a practicing attorney for more than 25 years. I would like to think that I understand this issue-but I simply don't. I do not understand the utility in writing an article that is simply going to be read by a few others interested in the topic or a tenure committee. The purpose of writing a law review article, as I see it, is not to impress your Dean. It is to influence the development of the law. For that to occur, your articles must be read by judges, clerks and yes, lawyers who might cite you in a brief. I have been told by several senior faculty that it is more important to be cited by other commentators than by courts. That is complete rubbish.The problem is that too many (almost all the recent hires at law schools these days) law professors are simply incompetent to practice law because they have very little legal experience. Sorry, clerking for two years with summer associate experience is not equal to practice. As a result professors do not write about practical issues. Chief Justice Roberts and others are spot on in their statements about legal scholarship today. This is not going to change until law schools start putting a premium on legal practice. After all unless you teach at one of those top 5 schools, most of your students, who pay your salary, are going to go into practice. From the chair that I sit in, though some law professors give lip service to the importance of practice, the ones who control law schools simply don't. Oh yes, law schools may point to the lowest paid and untenured adjuncts to teach practice. While that is a point for another posting, suffice it to say that most students would be shocked to know that the doctrinal tenured faculty do not research anything worth writing.  

Mitchell H. Rubinstein

Adjunct Professor of Law New York Law School

Senior Counsel New York State United Teachers

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Even if one assumes that the goal of legal scholarship is to influence the development of the law in the courts -- a view few people share, but one I'll accept for the sake of argument -- doesn't legal scholarship routinely influence the law in the courts by influencing how professors think about the law? The process takes a lot of time, and it leads to less credit for the scholar. But it's still an important influence, I think. It works something like this: The scholarship influences the academics; the academics write casebooks and articles that influence the students they teach; and the students eventually become clerks, lawyers, and judges, and interpret the law based at least in part on what they learned in law school.

Posted by: Orin Kerr | Dec 13, 2011 11:00:25 PM

It seems to me that Professor Kerr's suggestion with respect how legal scholarship "routinely" influences the law is based more on hope than fact. Simply because one cannot draw a straight line between scholarship and court outcomes (via a citation in a published opinion) does not necessarily mean that we can just assume that routine influence nonetheless exists, albeit through the more time consumng and circuitous (and non-credited) research to teaching to absorption-by-students to dissemination-by-practitioners route.

Posted by: John Cogan | Dec 20, 2011 7:39:49 PM

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