Sherrilyn Ifill on What the Chief Justice Should Read on Summer Vacation

My colleague and CoOp guest blogger Professor Sherrilyn Ifill has written an insightful post responding to Chief Justice Roberts’s comments at the Fourth Circuit Judicial Conference.  I’m including her post below.  Thanks, Professor Ifill!

In response to a question at last weekend’s Fourth Circuit Judicial Conference in White Sulphur Springs, West Virginia, Chief Justice John Roberts expressed his agreement with the views of D.C. Circuit Court of Appeals judge Harry Edwards, who has long argued that the scholarship produced by today’s law professors is largely irrelevant to judges.  In fact the Chief Justice doubled down on Edwards’ argument that legal academics focus their scholarly attentions on matters that more concretely assist the judiciary and legal decisionmakers in understanding and working with difficult areas of law practice.  Roberts contended – jokingly albeit – that too often the average law review article will be focused on “the effect of Kant on the evidentiary rules of Bulgaria.”  The line got a laugh.  But it wasn’t very funny.  It also wasn’t very true.

Legal scholars will on occasion indeed take up Kant (and there’s no shame in that), but more often than not, published law review articles offer muscular critiques of contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decisionmaking on how law develops in the courtroom.  Such scholarship can assist judges in explaining complex legal doctrine, but also in working through the application of that doctrine to modern legal controversies. Take, for example, the work of my colleague Renee Hutchins, who in her 2007 article Tied Up in Knotts:  GPS Technology and the Fourth Amendment, 419 U.C.L.A. L.Rev. 409 writes about whether and how the use of GPS devices by law enforcement should be assessed under the Fourth Amendment.  Her article was so illuminating in exploring this underdeveloped area of law that Judge David Tatel on the D.C. Circuit Court of Appeals cited it in last year’s U.S. v. Maynard, in which the court unanimously held that the police use of GPS tracking on a criminal suspect over several weeks constitutes a “search” and requires a warrant.

Hutchins’ article is hardly an anomaly.  A recent review of articles posted on the Social Services Research Network, revealed a treasure trove of
excellent articles that would greatly assist judges in their work.

Let’s take a few examples.  As chair of the Judicial Conference, I would think that Justice Roberts would be very interested in Robert Burn‘s What Will We Lose if the Trial Vanishes, a serious and important meditation on the how the promotion of settlement,
alternative dispute resolution and summary judgment are killing the civil trial – which  Burns convincingly describes as “the crucible of democracy.”   After the Court’s decisions raising civil pleading standards in Bell Atlantic v. Twombly and Iqbal v. Ashcroft, Roberts may wish to consider Burn’s thesis. Or Brandon Garrett’s critique of the use of eyewitness identification in the courtroom in his Vanderbilt Law Review piece, Eyewitness and Exclusion.   Garrett’s article provides for the Court a window into how lower courts have approached the exclusion of eyewitness identification in the courtoom and demonstrates how these practices may circumvent the Supreme Court’s due process test in this area.  Still another scholar Matthew Hall recently offered a proposal in the U.C.L.A  law review for addressing the Court’s flawed policy for determining when to exercise jurisdiction over state court determinations of federal law.  And it’s not hard to imagine how Justice Roberts – who offered the now-famously simplistic bromide in 2006 in Parents Involved in Community Schools v. Seattle School District No.1 that “the way to stop discrimination on the basis of race is to stop discriminating based on race” —  would benefit from reading Jerry Kang and Kristin Lane’s recent review of the empirical data on the increasingly elusive but stubbornly persistent presence of racism in Seeing Through Colorblindness: Implicit Bias and the Law. These are just a few articles – – but there are scores of such articles published by legal academics every year that can hardly be regarded as obscure meditations on dead or irrelevant areas of law.  What’s missing is the willingness of some judges, apparently including our Chief Justice, to respect legal scholars as colleagues and collaborators who, along with members of the judicial branch, practitioners, and leaders in the profession’s organizations and associations, shape the development of legal doctrine and standards.

Indeed just a month ago, I remarked to a colleague that if Roberts were to read my 2002 article Do Appearances Matter?:  Supreme
Court Recusal Practice in Bush v. Gore
, he would find a detailed prescription of how Supreme Court recusal practice should be reformed and codified – an area of Supreme Court practice desperately in need of reform and a matter much in the news these days in light of some of the activities of Justice Clarence Thomas and his wife, Ginni.

I suppose it’s always good fun to disparage members of the academy as pampered and isolated egoists.  Many of us are.  You could sense a certain relish when Justice Roberts drove the knife in further and offered that if asked to name the last law review article he’s read, he would be hard-pressed to remember even one. No doubt the Chief Justice meant to shame academics with what he regards as our own scholarly irrelevance.  But the shame is really on the Chief Justice of the United States, who demonstrated how out of touch he is with the current world of legal scholarship and the potential contribution of legal scholars to the work of judges.

There’s no question that legal academics enjoy tremendous latitude in writing about what interests them – regardless of whether anyone else in the profession is interested. But more often than not, law scholars today are deeply engaged with helping legal decisionmakers grapple with difficult legal issues.  Our scholarship – if read – can be very helpful to judges and their clerks as they navigate the shoals of complex legal

It may be futile, but I’m still hoping that Justice Roberts will spend even a little time this summer engaging the work of scholars who have spent countless hours engaged in research and thinking, in the hopes that the judges who interpret and determine the law, will at least deign to read our work.

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20 Responses

  1. Gerard Magliocca says:

    I think that everyone in legal academia should start sending reprints of their articles to the Chief Justice until he relents and reads one. 🙂

  2. During the same speech, the Chief spoke glowingly about his newest colleague, Justice Kagan. Other than a few years in the White House Counsel Office, and a hasty year at the Solicitor General where she made her first appearance before any Court, at what point did Justice Kagan actually engage in the practice of law? As best as I can tell, for the majority of Justice Kagan’s career after law school and clerking, she was a scholar who published law review articles. Yet, she has still managed to serve her first term with distinction, and received praise from the Chief. I think there is a slight disconnect here.

    Also to supplement Professor Ifill’s point, just this term in Wal-Mart v. Dukes, both in the majority opinion (joined by the Chief) and in the dissent, the Court heavily relied on the scholarship of the late Professor Nagareda (

  3. Mike Zimmer says:

    In the recent decision of the Canadian Supreme Court Ontario v. Fraser, 2011 S.C.C. 20, the majority opinion and the concurrence by Justice Rothstein engaged in a major debate concerning what academics wrote about its previous decision, B.C. Health Services, that found a law passed by British Columbia terminating collective bargaining agreements and limiting future baragining for public employees had violated the Charter right of freedom of association.

  4. 1styearprof says:

    That GPS article looks excellent, but it’s a doctrinal piece that doesn’t accurately what’s published in top law reviews. More important, that is not the type of article that tends to be valued by recruitment committees. So, I think it’s unfair to point to that article to show that CJ Roberts is wrong. Rather, all it shows is that CJ Roberts isn’t *completely* wrong — there undoubtedly are useful pieces being published.

    But you’re deluding yourself if you think that the professoriate generally values such scholarship. Doctrinal scholarship has been derided as anti-intellectual (see Einer Elhauge’s commments) and others have explicitly stated that academics should write for only for each other (see Gordon Smith’s post on theconglomerate).

  5. I am pretty enamored of Sherrilyn Ifill. She is the sort of bright and thoughtful attorney whose opinions can be somewhat controversial but are always thoughtful and well-grounded.

    When you are wanting lighter fare (although not quite beach books) I hope you’ll visit the Jury Expert ( for legal researcher work translated into plain prose and applied to day to day work in the courtroom by trial consultants. Our current issue features works on the effect of race & gender of attorney on trial outcome; juror entitlement as a predictor of damage awards; narrative persuasion; breaking bad news; understanding whether your jurors are mad or sad and why it matters; and much much more. Targeted to trial lawyers. And (always) free access to full-text articles.

    Rita Handrich, PhD, Editor
    The Jury Expert

  6. As with all of life, law-journal articles and the underlying research varies in value along a Bell Curve–the puerile on one side all the way to superb on the other, with gradations along the way. There is, of course, as others have pointed out, an undercurrent of mutual back-scratching, as judges who routinely cite law-review articles are in turn cited by academe. As Kurt Vonnegut used to observe: “And so it goes …” Of course (as the joke about the drunk and the lamppost relates) judges cite law-journal articles for support, not necessary light. As the late great DC Circuit judge Harold Leventhal noted in connection with legislative history, using law review articles in a decision to “analyze” an issue is akin to walking into a party and picking out your friends. Further, as the Chief Justice noted, most of those cloistered in academe (largely populated by escapees or avoidees of the actual practice of law), have only minimal connections with the tumble of court work. Very few practitioners, irrespective of skill, read law journals–except when they seek an article that support’s their client’s cause Ralph Adam FineJudge, Wisconsin Court of Appeals

  7. Andrew Kennedy says:

    The Chief Justice’s central point was entirely correct. The fact that Prof. Ifill has pointed to a few apparent exceptions to the rule does not undermine the Chief Justice’s point.If you look at the comments of lawyers on the ABA’s article, it is clear that they generally feel the same way. As a law student, my professors were quite glad of this gulf between the academy and the bar and would remind us of it often. As a litigator I’ve been saddened by this gulf. But I do not quite understand why Prof. Ifill cares. The main audience for law reviews has always been other professors. It is rare indeed when a law review article will affect a judicial decision, and the concerns of litigators have very little overlap with those of the legal academy.

  8. Kirk Michael says:

    Mr. Blackman,
    But Justice Kagan did not publish much (in fact, some had doubted her intellectual capacity because of this?). Maybe she had already come the same realization as the CJ while she was still an academician and thus has been able to keep her head clear and straight?

  9. Dave says:

    “Those who can do do, those who can’t do teach.” Isn’t it that simple?

  10. Matt says:

    As someone with 25+ years experience as a law professor and a former large firm lawyer, I’ve read many dozens of law review articles over the years. Although some law review articles “offer muscular critiques of contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decisionmaking on how law develops in the courtroom,” this isn’t an accurate characterization of most articles. Firstyearprof’s observations regarding doctrinal scholarship are quite correct. Rather than seeking to rebut Chief Justice Roberts’ valid point by providing some exceptions to the rule, the legal academy would be better served by looking at itself in the mirror and asking why judges and practicing lawyers generally don’t value (much less regularly read) our scholarship. Do we have a convincing response to the governor and/or legislative body of a cash-strapped state that ask “Why should legal scholarship be funded by scarce public dollars?; All things considered, do the public benefits of legal scholarship equal or exceed the costs of its public subsidization?”

  11. An anti-intellectual court? I too doubt that Roberts has read many law review articles. And I agree with Ifill that so many articles address legal questions that the Court decides. I think of Parents Involved. His ruling botched history and made terrible statements about the meaning of race consciousness. Rather than reading those critiques, he dismisses legal scholarship as irrelevant.

    Another problem about the legal scholarship question: Perhaps this reflects the tiny pool from which the justices hire clerks. While the tiny number of law professors who funnel clerks to the Supreme Court probably spend more time on philosophy, professors, generally, engage in scholarship that is far more relevant to practice. And when they clerk, then cannot find relevant scholarship for justices, because they have not been exposed to such literature in law school (just an hypothesis). Turn the gaze inward Roberts. Maybe you are part of the problem.

  12. Sorry – brazenly skipped editing on the last post – but the last paragraph considers whether clerks on the Supreme Court have had adequate exposure to a broad range of legal scholarship.

  13. BL1Y says:

    Over on the Prawfs’ Blawg, Brian Galle (Boston College) argues that legal academic writing ought to be irrelevant!

    His argument is essentially that writing things for practitioners, judges, and legislators would be immodest, and it is inappropriate for the ivory tower to exercise any sort of influence. It’s the Prime Directive model of academia.

    Richard Neumann (Hofstra) has even argued that academic writing is irrelevant …to academics. 43% of journal articles are never cited, not even by fellow professors.

    How many truly great articles are written every year by law professors? The type of article you’d want to republish with minimal editing in a textbook and assign it to students because it speaks so intelligently on a topic of great interest and importance. One? Two? If you’re liberal with your standards, maybe a dozen? If you’re quite conservative, maybe one every dozen years.

    Now, consider that there are approximately 10,000 articles published every year, and try to formulate an argument that anyone should spend their time trying to find the few valuable sheets contained in that mountain of paper.

  14. Michael Lewyn says:

    By BL1’s logic, books are equally useless, since most books aren’t cited by scholars either!

  15. BL1Y says:

    Michael, that is correct.

    …With the caveat that I said that much of academic writing is irrelevant -to academics.- (Actually, I said Professor Neumann made that claim, but whatever.) I would likewise agree that most books are irrelevant to academics (qua academics).

    I don’t think that many authors of books really care that law professors aren’t citing them. Not really Chuck Palahniuk’s prime concern. But, as a law professor, you might want to rethink the value of your scholarship if, after the year’s 2 million or so footnotes are printed, no professor has made reference to your work.

    I imagine the people who teach trial advocacy place an emphasis not just on creating a strong argument, but presenting it in a way that convinces the judge or jury. Why don’t professors give themselves the same standards? It’s not sufficient that your article give a “muscular critiques of contemporary legal doctrine,” it must also be persuasive.

    Much of what drives non-academics away from reading journal articles is the cumbersome style (60 pages where 12-20 could suffice) and the signal to noise ratio (come on guys, do we really need 10,000 new articles every year?). The academy may have some very worthwhile ideas, but it does an astoundingly poor job in the advocacy department. You can’t be persuasive if you can’t even get someone sit down with your article.

  16. Why don’t judges think more of the unintended consequences of their decisions and utterances?

    Does Chief Justice Roberts prefer more pungent critiques of his opinions in law reviews instead of the current fare?

  17. LawStudent says:

    I’m a 3d year and my family is full of practicing attorneys. My opinion, and that of all practicing attorneys I talk to (including adjunct profs who practice as well), is that almost all of the legal “scholarship” is BS. It is an exercise in mental masturbation meant to impress other law profs. And, it is useless to actual lawyers in the productive economy.

  18. Mark says:

    How convenient that Sherrilyn Ifill only mentions Clarence Thomas’ conflict of interest and completely ignores Kagan’s conflict of interest. This willful blindness is what angers the population of this country, such obvious bias has no place in a scholarly article.

  19. Nick Herman says:

    Having practiced law as a litigator for over twenty years (and as an adjunct professor who has taught at three law schools), I have yet to meet a member of the practicing bar that has found any value to the so-called legal scholarship that has been produced over the past twenty plus years. One would not doubt that there are some useful articles, but the vast bulk of what is being produced in the frenzy of the tenure process is entirely useless to those of us engaged in the actual practice of law– whether in trial practice, appellate practice, or otherwise. We need a new definition of relevance in legal scholarship.