Wednesday, September 9, 2015
That is the title of a forthcoming article by Cass Sunstein in the Michigan Law Review. Sunstein has unusual standing to make this case because, in addition to his academic perches at Chicago and Harvard Law, he was tapped by President Obama to lead the Office of Information and Regulatory Affairs.
Sunstein has written a remarkably thoughtful and balanced essay that I would encourage any fairminded lawyer, law student, and law professor to read. Sunstein begins by recounting how pulling the levers of power in government made several of his fellow academics despair over the prospect of returning to academic writing. When Sunstein probed further, a colleague sent along a passage from Theodore Roosevelt:
"It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood ... ."
It's a powerful passage that can be used to diminish those who write academic articles. But Sunstein subsequently references another quote, this one from John Maynard Keynes:
[T]he ideas of economists and political philosophers, both when they are right and when they are wrong, are more powerful than is commonly understood. Indeed the world is ruled by little else. Practical men, who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist.
Sunstein acknowledges that Keynes' message is self-serving and unnecessarily demeans the intellect of those who carry the burden of leadership. But he also sees a kernel of truth--difficult problems often get solved by applying the grand ideas and concepts of academics. The impact of academics is rarely immediate, but it can be enduring and profoundly influential.
To illustrate his point, Sunstein identifies a list of seven recent books by academic authors (by Balkin, Vermeule, Mashaw, Kaplow & Shavell, Revesz & Livermore, Cross, and Adler). All of them can trace their origins to earlier law review articles, all of them are hunting "big game", and most if not all of them are unlikely to be of immediate practical to the busy practitioner or judge. But Sunstein suggests that we should be taking a longer view. Some of these books were on his shelf when he served in the government. He used them to address real world problems. The rest are scaffolding to reach something higher.
Sunstein organizes the core of his essay around the criticisms of the late Yale law professor Fred Rodell, suggesting that the author of the famous Goodbye to Law Reviews got it only half right. Sure, the style and length of law review articles limit their readership, but Sunstein observes some countervailing benefits:
When they are working well, law reviews strongly discourage arguments that are glib, sloppy, circular, or narrowly ideological. They also require both development of and sympathetic engagement with competing points of view, rather than easy or rapid dismissals. Counterarguments are strongly encouraged, even mandatory. There is a kind of internal morality to the genre, one that is (I think) connected with and helps account for some of its rigidity. The morality involves respect for the integrity of the process of argument, which entails respect for a wide range of arguers as well.
As someone who has written numerous law review articles, this description strikes me as entirely accurate. Most of my work these days is applied--designing and measuring law school courses, evaluating outcomes, and trying to re-start the labor market so it clears on something more that LSAT scores of entering students. Within this applied realm, which borders on the arena, I am often viewed as someone who is highly creative. Yet, I can safely say that nearly all of the credit goes to the mental discipline and knowledge obtain through academic writing. That process fundamentally transformed my intellect. Further, I felt that way at the end of my first law review comment, which took roughly 500 hours to research and write during my 2L year of law school. So I wanted to do it again.
A lot of smart people in law tend to focus on what is immediate and practical--i.e., what will help with the work on their desk. I can see this mindset in nascent form in a subset of my students who become impatient with classroom forays into legal theory or the social sciences. I don't think this group can be won over. By disposition, they can't see the value in reading academic work, so paying for its production seems even more pointless.
Granted, this conclusion does not resolve the harder issue of whether the current system of legal education over-incentivizes the production of legal scholarship by mandating, through ABA and AALS requirements, that most teachers be academic scholars. What is the optimal number of lawyer-scholars who should be subsidized by student tuition as opposed to grants or endowment? It may be less than the current number. Further, how those spots get allocated is another challenging issue with no simple resolution.
That said, Sunstein is clearly right--whether they realize it or not, every capable legal problem-solver is standing on the shoulders of prior academic work. It is misguided to conclude that future generations won't need new and better ideas vetted through an academic process.