May 23, 2011
Legal Scholarship Matters
Posted by Gordon Smith

Ann Althouse linked this article in The New York Times and connected it to my post on becoming a great law professor. If someone had sent me the article without the header, I would have thought that it was a piece from The Onion, America's Finest News Source. This was the first hint that something was off: "The justices generally said the briefs submitted to the Supreme Court were of high quality but too long." That seems like a nice bit of sarcasm in light of an article from the NYT last November (here): "In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts. And it increasingly does so at enormous length."

But the passage that inspired Ann was this comment from Chief Justice Roberts: "What the academy is doing, as far as I can tell, is largely of no use or interest to people who actually practice law." Chief Justice Roberts is parroting a position taken by many practicing lawyers, and that is disappointing. I am not sure why some lawyers -- include some who comment here -- have such a difficult time grasping the concept, but let me make the point as simply as I know how: legal scholars often are not writing for practicing lawyers. Sometimes we do, but like academics in every field, legal scholars often are writing to other legal scholars. Why is this so troubling to some people?

This debate is worthy of a much longer response, but I don't have time today. In the interest of brevity, therefore, let me recommend an exercise that I suggested to a student this weekend after he sent me a link to the NYT article with a particular reference to the Roberts comment. Think about some of the concepts one learns in law school: duty, negligence, causation, intent, reasonableness, damages, due process, jurisdiction, etc. If you have legal training, you may think that you learned about them from judicial opinions, but I would suggest that the way all of us think about those judicial opinions (indeed, the way that the judges who write these opinions think about those concepts) is deeply affected by legal scholarship. If you don't believe that, spend some time this summer reading The Canon of American Legal Thought, a collection of articles that (with some possible exceptions) were not written for "people who actually practice law," but have had a profound effect on that way all of us think about law.

If you do that, I believe you will begin to understand how legal scholarship matters.

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