Here is a question I have been pondering for a while: Why do Delaware judges write so many law review articles? For example, I have sitting on my desk a stack of 14 articles by Norman Veasey former Chief Justice of the Delaware Supreme Court. On closer examination, most of these are speeches rather than articles. But still the question remains why do the judges write these pieces and why do the law reviews publish them?
The question arises as part of my research into the mechanisms for crafting corporate law in the U.S. Because Delaware judges play a central role in the process, it seems important to determine how they play their role, what motivates them, and to whom they are accountable.
Many scholars have noted the prolific nature of Delaware's judiciary. Professors Marcel Kahan and Ed Rock counted 22 recent articles published by Delaware judges. Professor Lawrence Hamermesh has published a helpful chart as an appendix to his Columbia Law Review article, The Policy Foundations of Corporate Law. Yet nobody seems to have persuasively explained this phenomenon. Presumably judicial opinions provide judges with an adequate forum to explain and justify their decisions. Why then would judges feel compelled to supplement their legal opinions with further explanations, elaborations or justifications in the academic literature? More importantly are these extra-judicial exhortations helpful, harmless or insidious?
One purpose of these articles and speeches could be to provide guidance to corporate managers, attorneys and commentators as to the substance and meaning of Delaware corporate law. Thus judges are supplementing their law-making role, moving beyond ex-post assessment of corporate conduct to ex-ante guidance for practitioners and their clients. Such motivation can be viewed as positive, but also potentially problematic. The message may be lost in translation and, because judges cannot be bound by these extra-judicial comments, advice gleaned from their comments may be of dubious value.
Another view is that the constant commentary has a political purpose: to shore up the legitimacy of the state's role in setting corporate policy. On this view, Delaware judges not only seek to explain their approach to corporate controversies, but promote their own superior abilities to act as arbiters in these disputes. Certainly, many articles by Delaware jurists fit this mold. If this is the motivation, we might want to take the message conveyed with a grain of salt. If part of the motivation for the articles and speeches is preserving the state's (and the judges') sphere of influence, then readers and scholars should consider such when evaluating the arguments the judges present.
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1. Posted by Lawrence Cunningham on January 25, 2008 @ 18:09 | Permalink
Spot on, Renee. Judicial writing in law reviews can discharge one aspect of a judge’s public responsibility. But Delaware judges overdo it in ways that may contradict that public burden.
It seems clearly wrong if judges put speeches and writings into law reviews to promote their state’s role in jurisdictional competition. In addition to the problems Renee mentions, doing so exacerbates the already dangerous invasion into scholarship of politics occasionally risked by some tenured law professors.
Worse, law review space is preciously scarce. Any judge’s piece forecloses space for law professors to publish. This is costly to all scholars. It is especially costly to younger ones. The unusual occupation by Delaware judges of this scarce space suggests that the prolific among them do not appreciate this imposition or do not care about it.
Worse yet is if such judges use the precious space to promote their own careers, hoping to parlay judicial experience with law review publications into an academic appointment post-bench. It may be unfair to make such an inference. Yet observe also a tendency of these same judges to teach as adjuncts at law schools, including Penn (which is nearby to Delaware) and Vanderbilt (which is not).
Also, one former Delaware judge, Wm. Allen, whose opinions exhibited an intellectual quality and who published a few thoughtful law review articles while on the bench, joined a law school faculty about a decade ago and still holds the appointment (at NYU; since being there he jointly edited a Corporations casebook with Harvard's Prof. Kraakman).
It is difficult to see anything net positive about the unusual propensity of Delaware judges to occupy the limited number of law review pages to present their own views of Delaware's corner of the world.
2. Posted by Jake on January 25, 2008 @ 21:26 | Permalink
Nice comment, Larry.
3. Posted by Jason on January 27, 2008 @ 17:38 | Permalink
This will sound snarky, and I don't mean it to be: why don't we ask them? The judges are there, they have email addresses and phone numbers, and they're apparently comfortable acting as public figures (writing articles), so at least a few of them might be amenable to answering a simple "what drives you to write" question.
(Comment cross-posted with Corporate Law and Democracy.)
4. Posted by Jason on January 27, 2008 @ 17:43 | Permalink
Oh, and Prof. Cunningham's comment drives me to ask: just how scarce is law review space? Jeffrey Harrison estimates that there are 7200 articles published per year in law reviews. That number doesn't strike me as resulting in any significant scarcity.
Furthermore, doesn't scarcity just result in competition, with all its attendant benefits?
5. Posted by Lawrence Cunningham on January 27, 2008 @ 20:34 | Permalink
The law reviews that scholars most desire (those whose articles are highly visible, widely cited and count favorably for academic tenure, promotion and compensation increases), report receiving about 1500 to 2500 submissions annually yet publish some 8 to 15. Whether you count 10, 20 or 30 or even 50 in that cohort, space is scarce. It is scarece in general and more so if defined by subject , like corporate law. Ask any serious law professor. ;)
Three cheers for competition! But judicial competition with law professors is still an imposition, and appears either unappreciated or ignored.
6. Posted by Renee Jones on January 28, 2008 @ 7:33 | Permalink
Thanks for the comments to this post. Larry, you raise a number of additional factors that might motivate judges to publish in law reviews. I had focused on the political angle, but you are right to also point to personal reputation and career advancement as possible incentives. Your point about scarce law review space is also important. This all suggests that the relationship between the judiciary and the academy in the corporate area may be worthy of further thought and reflection.
Jason notes that one way to get answers to the questions I raised is to ask the judges. I agree that such an exercise may provide some helpful information, but such surveys might ultimately be of limited utility due to the subjective nature of the responses.
7. Posted by J.W. Verret on January 28, 2008 @ 7:58 | Permalink
It's great that you all are talking about this topic, Chief Justice Steele and I recently co-authored an article which answers why Delaware Judges are so interested in giving speeches and writing articles. It will be out in the Virginia Law and Business Rewiew soon, but until then here is a blog posting summarizing the thesis: http://blogs.law.harvard.edu/corpgov/2007/09/10/how-judges-talk-to-lawyers-the-role-of-informal-guidance-in-business-law/
8. Posted by Tiya on January 31, 2008 @ 14:11 | Permalink
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10. Posted by mosborn2020 on July 6, 2008 @ 12:39 | Permalink
The judicial writings in reviews ,though a bit more in Delaware, are not as bad as posted above because they help the companies or their managers to know more and the latest about the corporate law and its implications.
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