In the never-ending search for academic legitimacy, Jack Chin  takes his best shot at arguing the importance of scholarly influence in criminal law.

For me, these cases brought to mind Chief Justice Roberts’ famous mockery of the contribution of scholars to actual law: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in eighteenth-century Bulgaria, or something. . . .” But at least in criminal law and procedure, the field I know best, Lafler and Frye seem like par for the course; the idea that good scholars are irrelevant to courts and and legal doctrine struck me as mistaken.

It seems that lawprofs are obsessed with keeping track of how often they’re cited in a judicial opinion, that being their equivalent of how many convictions (or maybe hot chicks?) they nailed.

I looked at the 21 most cited criminal scholars according to Brian Leiter. The Leiter study looks at faculty who are most cited in law reviews from January 1, 2005 to January 15, 2010. By examining those who were most influential in recent law review citations, this study captures those now in fashion in the academy. All of these 21 teach at highly ranked schools (all are in the top 50, and 19 are in the top 20), where one might expect highbrow academic culture prevails.

Oddly enough, my reaction to this data was almost exactly the opposite of Chin’s.  Where he sees citation as a reflection of influence, I see it as cheap support for the court’s holding.  Unlike other areas of practice, criminal law tends to evoke some pretty clear views from judges, particularly those who have no prior experience in the field and who use their robe as an opportunity to put their prejudice into action.  Judges know where they want to end up when it comes to criminal law, whether it’s making sure the bad guy goes to prison or, for the small handful who are mistakenly appointed or elected, making sure constitutional rights are protected. 

They don’t need a lawprof to tell them how they feel. Everybody has a feeling about criminal law. Everybody has a view of cops, criminals, rights, punishment, and every emanation and penumbra that the morning news can offer.

The only question is how to come up with a seemingly legitimate way to justify reaching the desired outcome.  Enter the lawprofs. They write and write and write, and produce lots of good stuff to make a judge appear thoughtful and learned. Maybe even scholarly, if it gives the appearance that they read that stuff.  And so they send their studious clerks on a mission to dig up whatever they can find to support their decision that the defendant burns.  And out pops a bunch of law review articles. The judge tells them to pick a couple from the profs at the good law schools, just enough to make his decision seem legit, and stick them into the paragraphs wherever possible. Like magic, the once baseless outcome now appears to be firmly grounded in deep academic thought.

What makes all this curious, aside from this unseemly need for validation on the part of the lawprofs, is another post at PrawfsBlawg by Shima Baradaran, 10 Teaching Tips for Professors.  It includes such gems as:

1.  Love the students.  I think this is probably the most important.  If you don’t think the students are the most important part of teaching, I feel like you will never reach them.

2.  Teach so students can learn.  If a teacher is the most brilliant person in the world on the subject but can’t present it in a way that his listeners can understand, the teacher is completely ineffective.  Teaching requires not only someone presenting but also someone receiving.  I believe that many people learn in very different ways.  The best teachers I have known have been adept at presenting key concepts in ways that appealed to students with diverse learning modes.

3.  Love the subject.  If you love the subject and the students, your enthusiasm will be apparent and the students will feel it and catch it.

It’s kinda hard to take lawprofs seriously when this is what passes for wisdom on their teaching function. What? No “never call a student by the name of a sexual organ”? I guess “love the students” isn’t meant to be taken literally? My favorite “tip” is:

6.   Don’t require attendance.  If you build it, they will come.  Teach well, and you won’t have to compel your students to listen to you.

First of all, Field of Dreams was a movie. It didn’t really happen. Second, nothing in life is that simple.  Third, if this is the depth of advice you need to function as a teacher of law, do you seriously think judges give a crap what you think about the state of criminal law?  I know, I’m conflating unrelated things, but the ability to think tends to be consistent across a person’s experience. You can’t be brilliant and moronic at the same time. At least, you can’t claim to be.

That lawprofs are keeping score of their citations in criminal law decisions frightens me.  It suggests that they’re getting the type of validation they so desperately want and need, and like Pavlov’s dogs, will write more.  While in a few small niches, such as computer law, I suspect scholarship does carry some weight, which is why I spend  so much time  trying to convince  Orin Kerr  not to screw up the state of the law for everyone else. 

But in most areas of criminal law, the only judicial (or practice) need is to bolster support for our preconceived ideas and arguments. If some prof has written something that backs us up, we cite to her. If not, we cite to someone else. We don’t care who they are. We only care if they help us reach the outcome we want. 

In this spirit, I offer a proposal. Rather than keep track of how many times your law review article is cited in a judicial opinion, how about keeping track of how many of your students went on to become lawyer who actually helped a living, breathing human being’s life because of your excellent instruction?  Wouldn’t that be a better affirmation of your worthiness?