July 25, 2011
Are We Missing (Some of ) Our Target Audience(s)?
Pick up a copy of any law review that you see, Roberts said, 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.
We will assume that the Chief Justice is exaggerating for effect, as he must have rubbed shoulders with enough academics to know that very few law professors are very much interested in Kant's views, the 18th century or Bulgaria. Still, it is true that most academics do not write with courts or even practitioners in mind. While we might hope to have some sort of long-term effect on policy, I think most of us write in conversation with each other and with our students. Scholarship is often inspired by Supreme Court decisions that, in the opinion of the author, have strayed from wise policy, precedent or both. It is no surprise that the author of such opinions would find such scholarship tiresome.
Every so often I glance at ContractsProf Blog’s regular “New in Print” posts (e.g., here) and “Weekly Top Tens from the Social Science Research Network” posts (e.g., here). So far, I haven’t been tempted to read any of the law review articles listed, because I haven’t seen anything that seems as if it treats, in a compelling way, what you should say in a contract, or how you should say whatever you want to say.
I think I would have to agree with everything after "because", but I also find it hard to imagine why anybody would write a law review article about this topic, given that there are practical books on contracts drafting (including one by Kenneth A. Adams). I have a hard time trying to articulate why this subject is not an attractive topic for a law review article but an eminently sensible book project. I have occasionally heard colleagues disparage law review articles as "mere practitioners' notes." Heaven forfend that my work ever be so labeled, but it is a real danger, as I'm not sure how one makes the determination.
It also occurs to me that I read law reviews occasionally when clerking for my judge and when researching constitutional issues for my firm's Supreme Court appellate practice but never (that I recall) while litigating contracts disputes. Should we academics be making more of an effort in this area?
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I guess I was justified in ignoring law-review articles! But there's no reason why you shouldn't be able to write a law-review article about whatever you want. Well, no reason other than the generalized law-school prejudice against the practical.
By the way, "practical" doesn't have to mean lightweight, although on my blog I've observed that much commentary by practitioners recycles the conventional wisdom. Similarly, the ability to churn out ponderous law review articles is no guarantee of intellectual rigor.
Posted by: Ken Adams | Jul 26, 2011 7:31:20 PM
Ken, I think the challenge of writing law review articles on practical subjects such as drafting has something to do with overcoming prejudice but at least as much to do with the challenge of finding a topic into which one could delve with sufficient depth (25-75 pages) without trying to reinvent the wheel or reveal details of a transaction that might compromise client confidences. But if you have ideas for drafting topics that law students could explore in their Notes, 'tis the season, and I'm sure they would be grateful.
I want to clarify an ambiguity. I wrote that I don't recall reading law review articles while litigating contracts cases, and I should have written that I don't recall reading law review articles in order to help me litigate contracts cases. I did read law reviews evenings and weekends, because law reviews are filled with interesting and learned takes on interesting subjects. I hope that Chief Justice Roberts was observing that law reviews are not the most useful sources of information for a judge deciding a case (although even on that point, there are obvious exceptions -- where would originalism in constitutional interpretation be without the fabulous contributions of legal historians in the past few decades?). If he really meant that most law review articles are of interest only to the person who wrote them, I am amazed at the differences in our perspectives. For me, the challenge with law reviews is that there is so much interesting material in them, and I have to discipline myself to read only the articles that seem most relevant to my current research.
Posted by: Jeremy Telman | Jul 26, 2011 10:41:55 PM