They live to write.  So when Chief Justice John Roberts dismissed the Academy in his interview with Bryan Garner, they were cut to the quick.  It wasn’t merely their raison d’être under attack, but big bucks to boot.  A fighter at his core, Gerard Magliocca shot back.

In the legal writing interviews with the Justices that I referred to over the weekend, Chief Justice Roberts said that “[w]hat the academy is doing, as far as I can tell, is largely of no use or interest to people who actually practice law.”  Judges and lawyers often make similar comments, so I thought that I would try to explain why I think this view is, at least, exaggerated.

Before sneaking a peak behind the curtain, it’s worth noting that that there is no lesson, none, to be learned by lawprofs in all this.  One might think that they would question why CJ Roberts would say such a hurtful and dismissive thing, or perhaps what they could do to make their pet projects slightly relevant to a purpose beyond self-aggrandizement, lawprof style.  Nope.  Nothing.

Then comes the argument.  Number one, and presumably the strongest is:

First, there are many excellent scholars who write traditional doctrinal articles that are useful in deciding difficult cases.  Some fields, of course, lend themselves more to that than others, but I think it would be wrong to dismiss what they do.

Loosely translated, this argument contends that “Lawprofs think that what lawprofs do is useful and therefore it’s wrong for non-lawprofs to think differently.” It’s arguments like this that make me appreciate the decision to go into academia rather than practice law and bear responsibility for a person’s freedom.  So the primary point is, you disagree?  Who cares?  You think you are wonderful, and therefore others should too?  Denied.

Second, some legal scholarship is directed at the Executive Branch, Congress, or administrative agencies. These papers will be of no interest to courts or most practitioners.  For instance, I have an article coming out soon on “Reforming the Filibuster.”  That article is not less valuable because it is about the Senate.

Yeah, well, there’s only one problem with this argument.  Neither the executive branch nor congress, and certainly not the administrative agencies, know that you even exist.  They can’t read their own bills, and you think they’re going to read your law review articles? 

Third, a significant amount of legal scholarship is devoted to “basic research” such as philosophy or history.  Almost every field can be divided into applied research and basic research, and what courts and attorneys do is applied.  It does not follow that because the utility of basic research (say, human anatomy) is uncertain that means it’s useless.  It takes time to figure that out.

Unless I misunderstood CJ Robert’s quote, he didn’t say that everything written is stupid or worthless, but of “no use or interest to people who actually practice law.”  So your argument against this is that he’s absolutely correct?  Maybe some lawprof can do some basic research on the definition of persuasion?

Fourth, legal scholarship is indirectly transmitted to judges through their clerks and briefs. Even if a clerk, who is usually more familiar with current law review articles than the judge, does not cite articles that he or she read, the information or analysis in there still exerts some influence on the bench memo or draft opinion.  Ditto for briefs, especially for amicus briefs written by professors, which are more common nowadays.

This argument reflects a gross misunderstanding of how law works.  We cite whatever supports the outcome we’re working to achieve.  If our research pops out an article of yours, and it says what we want it to say, we cite it.  It’s not because we read it, or because it comports with our deep legal philosophy, but because we are advocates and want to load up support for our side.  Same with judges, who need to bolster their outcomes with citations, which is why we have law clerks.

Now I do not deny that there is plenty of legal scholarship that is esoteric or useless.  That is a necessary cost of academic freedom to some extent, and also reflects the more interdisciplinary nature of the legal academy since the 1960s.  (In other words, the more subjects that are under the law umbrella, the more apt one is to think that a given aspect not your own is a waste of time.)

Neither CJ Roberts nor practicing lawyers are arguing that lawprofs shouldn’t be allowed to indulge their scholarship fantasies.  We’re saying we don’t care because it doesn’t matter to us.  As long as law schools are happy to charge their students through the nose to pay for lawprofs to spend their days writing articles of no value or interest to anyone involved in the practice of law, knock yourselves out.  It’s got nothing to do with us. 

It seems that law students might be a bit miffed at the idea of paying for your affectations, but that’s between you and your students.  Well, we might stick our nose into that fight from time to time, but that’s only because lawyers tend to be great humanitarians.  We care, you know.

Having dismissed Magliocca’s arguments, consider that some law review articles are extremely important and influential.  Orin Kerr’s articles on cyber crime and the interpretation of the Computer Fraud and Abuse Act have not only had a significant impact on judicial decisions (sometimes to my chagrin), but are instrumental in framing an entirely new area of law that may prove to be at the forefront of crime in the future. 

The point of Chief Judge Roberts’ comment isn’t that scholarly works are inherently worthless and of no interest to the profession, but that most are, as written, useless because they fail to address the subjects and issues that lawyers and judges care about.  Lawprofs can enjoy all the academic freedom they want, but if they want to be relevant to the legal profession, it might behoove them to consider writing about things that matter rather than arguing that they are pleased with themselves and the profession is wrong to ignore them just because they offer nothing useful or interesting. 

Don’t want to be dismissed?  Then write about stuff that matters.  That’s the lesson, and no rationalizations are going to make anybody want to read your “scholarship.”