Monday, March 19, 2007


The Irrelevance objection to legal scholarship

Recently, Doug Berman posted on the increasing irrelevance of traditional legal scholarship. That post noted, among other surprising facts, that citations by federal courts of the Harvard Law Review are 1/4 what they were in the 1970's. Clearly, traditional law review articles are becoming irrelevant, and it is our own fault. Here are the dumb things law professors are doing to make sure that their work has no impact on the broader society, solves no problems, and avoids relevance to anyone save those in the legal academy:

1) Too many articles are obsessed with topics which lack any realistic nexus to a real-life problem. For a while, many top academics were fascinated by "shaming" punishments, while many ignored the sentencing guidelines and state practices. Shaming was never going to come back; meanwhile injustice permeates much of the sentencing structure in many jurisdictions and no one cares much.

2) There is no dialogue betweeen the legal academy and decision-makers. Many professors send their articles to other professors, but few send them to judges, congressmen, and practitioners. There audience is not anyone with power to create change, but a handful of other law professors.

3) Law articles are far too long. That is one reason so few people read them. It simply isn't true that an article under 100 pages isn't "serious."

4) The fervency for substantiation is silly. 800 footnotes to other law reviews does not make an article more true-- it just means someone else made a similar small point previously. The text should be more important than the footnotes, because that is how people read.

5) The cycle of writing to publication of an article is one to two years, making it impossible to address an issue which moves fast.

I do think law professors should produce scholarship. I just think that it should address real problems in the law and be written in a way that people might want to read.

Hey, welcome to my world, footnotes and all. If one more person writes another forgettable article about Don Quixote, I may scream. But what am I talking about? I'm a medievalist! No one has cared about the stuff I write about for about 600 years. You talk about irrelevant. Sheesh!

I get more joy out of my once a week haiku session than I ever do with the articles I write. I don't even care if I win. The shear joy of creating something new is exhilarating. And no footnotes.
It's been awhile since I was a graduate student in English lit, but it was the same way then. Actually, the movement was to write about relevant things (i.e. post-colonial literature and its ability to show how colonizers oppressed the colonized), but it was (and probably still is) filled with such jargon that no person in a formerly colonized country would be able to understand it. I had a job briefly editing some articles for a journal, and read one about the "-" in "post-colonial." I have no idea what it was about.

And there were conferences about Barbie, and soap operas, stuff which could MAYBE provide some insights, but really . . . academia is a strange world.
C.S. Lewis (regarding English Lit, but still applies) said we write "verbosely" and complicate things to look smart and to justify our careers and fields.
With all due respect, sir, didn't you recently produce "academic" material that bears a haunting similarity to the stuff of which you complain? The next law review will be publishing your lengthy article on the "trial" of Jesus Christ! Physician, heal thyself.
Anon 7:47-- That piece is directed squarely at decision-makers in places like Texas. Here, Christianity is what shapes morality more than any other force, and morality plays a huge role in how people view the death penalty. If I want those real-life decision makers (legislators, for example) to question the death penalty, I have to approach it from within their moral framework, not call them names or write about race, class and gender. Given what I am trying to do, I can't imagine a more relevant approach to a real-life problem.
I thought Ann Althouse had a money response to yesterday's NYT article on the subject. She set it up by quoting the article, in which a group of Second Circuit judges spoke to a group of law review professors:

"The assembled judges pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles."

Then she strikes back:

"And on the theory that I've got some judge and law clerk readers, let me put in my request that they write their damned opinions in a quick, plain and accessible style. Because I'm getting pretty weary of their obfuscatory, evasive, rambling scribblings myself. Unfortunately, I don't have the option of just not reading. Their work is imposed on us. Talk about an obligation to say something useful and well!"



Ouch ouch! There are some great opinions written, though. I would put the quality of opinions above those of law review articles in terms of readability.

With the death penalty article, it's kind of funny; some legal academics have been disdainful of it (because it has explicit religious content), but I have gotten a lot of emails from people outside the academy and even outside the profession of law who downloaded it from SSRN and had comments. I suppose that's a good sign.
And, really, isn't that what the academy should be about? Creating an environment in which both students and professors can explore ideas and express them? It's one thing to express them only to each other, in ways that only they can understand (which is my gripe and Osler's and the Second Circuit judge's and Anon.6:55's and B's), but to me it's an even sillier waste of intellect and passion NOT to communicate those ideas outside the academy. Legislators and the skeptics in the public who complain about the Ivory Tower distancing itself from the real world are given plenty of reason to do so.

It's sort of like a church that thinks it needs only to preach about serving others and not practice it. It's not a complete mission. And why academics think they need only write for each other--to the point that even their own students can't understand them, or some of their own colleagues--is beyond me.

Thanks for letting me vent.
I think 6:55 anon had it right-- we too often write to impress one another. At some level that makes sense, since within our little world, pay and promotions and all that stuff depends on what our peers think, so it is logical that our audience is too often those peers.

It's true that sometimes I have been guilty of what I complain of, but I think that my ideas have evolved since I started teaching. Now, I really do start out with some non-academic audience in mind, and I do what I can to make sure that they read what I write. The death-penalty article is for Christian non-academics who are thinking about the death penalty; the one about competence is for federal magistrates. And I will try to get it out to those audiences if I can. In writing them, I did try to make them accessible to non-lawyers.

Still, I do have to play the game to some degree and work within the confines of the law review paradigm. I would say that the Baylor Law Review is better than average at looking for relevance, and I really appreciate that about this school.
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