That nagging sense of worthlessness that lies just below the surface of legal scholarship has reared its ugly head again in a post by Brian Galle at PrawfsBlawg, questioning who would be the appropriate audience for lawprofs.

Many practitioners, from C.J. Roberts on down, have been heard to complain (read the comments!) about the “irrelevance” of recent legal scholarship to their work.  These complaints are, in a sense, factually wrong.  There is tons of doctrinal scholarship being produced today, much of it quite fine.  But to find it, you probably have to read a journal with “of” in the title, or a general-interest journal from a law school with a relatively low U.S. news ranking.  So really, the complaint is that gate-keepers at the most selective journals do not value the same things practitioners do.  It’s not an invalid complaint: being able to rely (at least to some extent) on gate-keepers to screen for quality is highly valuable for time-constrained actors.      

Perhaps, then, there is a need for some signal of quality for highly practical scholarship.  (The ABA’s journals seem a useful step in that direction.)  I nonetheless want to defend the status quo in which such scholarship is not highly prized by the academy, and therefore not prized by the gate-keepers who have internalized our norms. 

Yes, this again.  Another lawprof defending his efforts by telling those who might conceivably care that they’re wrong.  Here that, C.J. Roberts?  You should be reading law reviews because the guys who write the stuff say you’re wrong not to.

I’m not irrelevant! (stamps feet)  I’m not irrelevant! (stamps feet)

Yeah, not terribly convincing to me either. Galle distinguishes scholarship into two categories, theoretical and doctrinal.  The former is directed toward other academics, essentially internal musing meant to impress those who are fascinated by ideas with no practical applicability.  This he calls “modest.”  Doctrinal, on the other hand, is less than modest.

In short, I believe doctrinal scholarship should be viewed with some wariness because, in speaking directly to legal policy makers, it partakes of a perilous immodesty.  Purely theoretical scholarship, on the other hand, by whispering in the ears of other ivory-tower dwellers, is better suited to our limited capacity as scholars. 

A point raised in the comments by Bruce Boyden (who apparently doesn’t care for “snarky” responses to academic temper tantrums) is critical: 

Prestige for legal scholars is largely accorded by other legal scholars. Want to change what legal scholars write? Change the incentive system.

Since neither judges nor practitioners have a say in tenure or who gets the best parking spaces in the law school lot, why would lawprofs care whether anybody outside of the Academy reads their articles?  The answer is ego, and the need to be relevant.  Despite the first level of incentives, approval of their scholarly peers, the fact is that everyone wants to believe that they actually serve a purpose on earth.  Even lawprofs, a group disposed to insularity to avoid the slings and arrows of outrageous reality.

The alleged sin of immodesty may be grounded in the fact that lawprofs, in their ever-changing need to come up with a new hemline to justify why they’ve just penned the 387th law review article on a subject, live in a sanitized world.  They don’t accept this accusation, believing that the two years of judicial clerkship makes them as worldly as anyone else, but dabblers are like that.  No one wants to believe that their limited experience leaves them out of touch, and this is even more true of exceptionally smart people.  Like it or not, most lawprofs are indeed exceptionally smart. 

The reason this matters, at least to a trench lawyer like me, is that the waste of this very expensive, finely honed brain power is a travesty.  Writing articles that no one will read, like building houses that no one will live in, is just a terrible waste.  I read many of the lawprof blogs, and find them to have some very interesting, very curious insights.  The lawprofs don’t read practitioner blawgs, however, because we tend to be too vulgar and snarky for their tastes.  And we scare the crap out of them.

I find Galle’s attempt to rationalize the problem by separating the nature of content into theoretical and doctrinal to be largely misguided, a product of academic insularity.  This isn’t the problem, though the theoretical certainly tends to be so far removed from anything that would serve a sufficient purpose as to merit the time to read, sucked from so busy a schedule that only the most pressing and utilitarian matters make it to the front burner.

But it’s not because it can’t be interesting, or even worthwhile. 

In response, I offer a modest proposal to those lawprofs who, in their heart of hearts, want to believe that their efforts aren’t completely wasted.

1.  2000 Words.  Law review articles are too long and take too much time to read.  Time is a scarce resource, and, frankly, no one wants to waste it reading 78 pages of a law review article that reiterates its point 17 different ways.  Say it once. Say it clearly. Get out.

2. Write in English.  The Academy loves its jargon, as does every other insular group (including judges and practitioners).  But if you want us to read you, then use our language, not yours. It’s pedantic, tedious and, for the most part, incomprehensible. I realize that tenure committees adore scholarly jargon. We don’t.

3. Topical topics. It’s hard to find a topic that is interesting to you and matters to us. By topical, I don’t suggest that it must be popular or the flavor of the month, but that it touches on something that, at some point in time, someone outside of academia will care about. No one will ever, ever, find a use for an article on whether the Ministry of Magic affords due process to wizards.  Ever.

4.  Need to know. Some people read law review articles for fun. They are called “shut-ins” and usually would benefit from therapy.  The rest of us need to be able to find your brilliance when we need it.  Surprisingly, we don’t hang out at SSRN when we research a topic.  If you want us to read you, make your writings available to us in the normal course of research.  We’re really kind of busy and aren’t inclined to endure the labor of finding your writings before suffering to read them.

5. Eyes wide open. Despite your agenda and attempt to be provocative, recognize that the utility of odd theories or policies depends on their recognition of countervailing arguments. While you may be comfortable ignoring them or dismissing them out of hand, we don’t have that luxury since there’s always a guy at the other table waiting to call us out.

6. Man up. Sometimes there’s a germ of a useful idea in scholarship, but it smacks head first against the wall of reality.  When you’re told, you argue that you’re right and we’re wrong.  There are few groups more defensive than lawprofs.  Here’s a compromise: We’ll acknowledge that you’re all brilliant if you’ll acknowledge that we have a slightly better clue as to what happens in the well.  It may not comport with life in the ivy covered buildings, but we wouldn’t lie to you.  Really, we wouldn’t.

The problem with these suggestions, as Bruce Boydon noted, is that we don’t have tenure to offer, can’t give you a raise or a chair, don’t even get a vote on where you get to park.  The incentive system for lawprofs is wholly outside our control, and nobody in law school administration has ever really cared a whit what the practitioners have to say about their stewardship.

But if you want to be relevant to us, and you want us to read you, this is what you need to do.