So You Want To Matter, Scholarship Edition

One of the dirty little secrets of the legal academy is that few of the thousands of scholarly articles they churn out on the backs of law students’ tuition find their way into the law.  Many are never written for that purpose, and serve only to provide fodder for the tenure committee to prove their scholarly worthiness as a brilliant theoretician, destined to be read by a grand total of twelve people before being forgotten forever.

But some academics have a burning desire to leave their fingerprints on something that matters. When a lawprof’s name ends up in a Supreme Court footnote, they go absolutely bonkers. It’s proof of their relevance, and they throw parties and build statues of the star scholar. The star then offers her wisdom to the masses on how to be relevant.

At Volokh Conspiracy, Orin Kerr picks up on a question asked by lawprof Jack Chin of footnote-star Eve Brensike Primus, which resulted in this exchange:

[Question by Jack Chin]: What advice do you have for scholars who want their work to be influential in the courts?

If you want to be influential, you have to address important legal subjects that courts are grappling with, write clearly and concisely, effectively communicate that you fully understand the legal landscape of where the doctrine currently is, and then provide a balanced, nuanced, and well-supported argument for why your proposed step forward is the right move to make.

Don’t blame me. That’s just how academics write, belaboring the obvious (write clearly and concisely? As opposed to obtusely and at such length as to make appellate judges want to stick needles in their eyes?) and burying what matters, “fully understand the legal landscape.”

Of course, Primus skipped over a pretty big hole, that not only must lawprofs be able to “effectively communicate” that they get the legal landscape, but they have to actually “get it” in the first place. It’s understandable that they believe they do, since third-rate intellects like lawyers and trial court judges get it and certainly top-of-the-class intellectuals should have no problem.

Except that the view from the Ivory Tower is often remarkably different from the view from the trenches. People never seem to behave in accordance with theoretical constructs, and neither the mean streets nor the nasty trenches react the way perfect logic would dictate.

Orin’s reaction to Primus’ answer seems to take this into account:

This answer makes a lot of sense, and I would amplify one point: Judges tend to ignore scholarship that doesn’t appreciate the judge’s sense of the possible vs. the impossible. Judges are practical people, and most judges have a sense of the limitations of the judicial role. They operate in a world of precedent. There’s wiggle room where the doctrine is murky, to be sure. And at the Supreme Court level the Justices can overturn precedents. But for most judges, the wiggle room is relatively confined and best resolved within a broader set of principles already recognized in the law (at whatever level of generality).

In other words, judges tend to be disinclined to reinvent the law just because a scholar has come up with a shiny Utopian theory that will make everything fabulous.

My sense is that a lot of legal scholarship fails to influence courts because it ignores that judicial mindset. When describing the problem, the scholarship isn’t particularly interested in existing doctrine. And when it recommends a solution, it tends to ignore that judicial sense of the possible. Instead, it assumes an ideal world with no limitations — a world in which no precedent gets in the way, no decisions can be reversed, and all vague standards will be administered perfectly in practice.

While this may be true, even Orin sits aloft the real world when describing the problem in terms of doctrine. Unlike many trench lawyers, I waste spend some time reading law review articles that strike me as having potential for use in my practice. Much of the time, I’m sorely disappointed at how little they seem to reflect the “law” as it happens as opposed to some existential understanding of legal theory. The law is ugly and dirty, rushed and routine. These words rarely appear in law review articles. It’s brutally ordinary, despite Herculean efforts to get a judge to pay attention for more than 30 seconds to consider something outside the ordinary.

It’s understandable that lawprofs keep score by how many times their scholarship is cited in the real world. It’s hard to get hard validation of one’s existence when toiling in a world that only exists in theory. To have an actual impact on the state of the law is to validate the millions of words murdered, the years spent congratulating each other on their brilliance in the face of no one outside the academy knowing they exist.  Frankly, many of these scholars have some fascinating and, in a perfect world, useful ideas. Let’s face it, the system ain’t all it could be and it could use some smart cookies cleaning up some of its messes.

I would add to Orin’s thoughts that if lawprofs want to increase the likelihood of their scholarship having an impact in real life, they need to step foot in lower courts and have a meaningful understanding of how it happens. They need to touch real clients and see how process and rulings work out for them. Judges see this, though not nearly to the extent that lawyers do. It can’t be seen at all from the Ivory Tower.

Of course, paradigm shifts don’t often happen in lower courts. They are usually the province of the Supremes, and occasionally at the appellate level, both of which function without much regard for the unintended consequences of half-baked decisions that elevate the theoretical at the expense of the real.

But then, the question is raised whether lawprofs only want to keep score of how many times an article of theirs is cited anywhere, or whether they want to do something that actually improves the functioning of the law for the benefit of society.  It’s not as easy to keep score of the latter, but if a scholar can pull it off, he deserves to get that statue of him placed in front of the courthouse.