The Relationship Between Theory and Practice

The longstanding attacks on legal scholarship all seem to assume a particular relationship between theory and practice, one that I believe is flawed.  Recently, I responded to one such critique.  There are others, with Justice Roberts and many other judges and practitioners claiming that legal scholarship isn’t worth their attention and isn’t useful to the practice of law.

It seems to me that those making these critiques assume that the primary value of legal scholarship should be to (1) describe current legal doctrine to make legal research easier for practitioners; or (2) influence an immediate and direct change in the law.  In an earlier post, I argued that #2 above is an unreasonable standard.  Legal change is slow, and rarely will one article have a direct influence.  Rarely does one thing have a direct influence — change typically occurs more through an indirect influence by numerous sources.  Only in the movies or in simplistic historical accounts will we see one article or book lead to dramatic changes.  Of course, it occasionally happens, but rarely.

In this post, I want to tackle claim #1.  The treatise writers and doctrinal legal scholarship of yesteryear has diminished, though it isn’t gone.  Last I checked, there were quite a lot of treatises written by quite a lot of law professors.  But there is today a lot more theoretical scholarship.  Is this scholarship valuable if it doesn’t help in legal research?

The answer is yes for many reasons:

1. As with all humanities, the value of any particular work is hard to quantify.  What’s the value of Kafka’s The Trial or works by Shakespeare?  What’s the value of reading history?  What’s the value of learning things that don’t have direct application to one’s career?  I believe there’s a lot of value.  Reading these works opens up new ways of thinking, sparks new ideas, and helps people understand the world differently.  This can indirectly affect one’s legal practice skills by enhancing creativity, improving one’s writing style, or making one see the facts of a case in a different light. It is interesting that many of the great jurists were also avid readers of literature.  Indeed, many of the great thinkers and writers throughout history had wide-ranging intellectual interests and reading habits.  Would people like Benjamin Franklin or Thomas Jefferson be as creative if they had more narrow and workmanlike intellectual exploration?  Probably not.  Would Justice Holmes have been as great without his love of the humanities?  I doubt it.

2. There is a value in critiquing legal decisions and laws, even if the critique winds up remaining in dissent.  Why do justices bother to write dissents?  After all, it often takes decades if not 40-50 years for the Supreme Court to change the law.  They write dissents in the hope that one day the Court will see things differently.  They write them to make a record.  There is a value in criticizing legal opinions and laws even if it doesn’t immediately result in a change.  Indeed, many of the critiques of legal decisions and laws that I read in legal scholarship are very powerful ones.  Courts and lawmakers should pay more attention, as the scholarship often reveals logical flaws in reasoning, clear errors in applying precedent, assumptions that are based on faulty facts, assumptions that are wrong based on empirical evidence, or assumptions that are contrary to widely-accepted conclusions in science or social science.   Courts and legislatures may hide their heads in the sand, but that shouldn’t be a justification for criticizing legal scholarship — it should be a basis for criticizing courts and lawmakers.

3. Pointing out errors is valuable even if those errors are uncorrected.  For example, it seems to me that if a court relied upon an assumption that is clearly wrong according to empirical evidence or other evidence, and a law review article points this out, but the court doesn’t change its opinion, then shame on the court!  I don’t think the appropriate reaction should be to denigrate the law review article, calling it “useless” because the court chose to maintain its error.

4. Much of the law is based in faulty logic and assumptions contravened by empirical evidence.    Consider the law of evidence, which has countless rules that run totally against modern understandings of psychology and empirical evidence.  Consider the M’Naughten rule for insanity, which is based on obsolete nineteenth century understandings of mental illness.  Consider the way courts handle technology issues, showing a lack of a basic understanding of how technology works.  It is important to point these problems out.

5. Legal scholarship can also reveal inconsistencies in a judge or justice’s jurisprudence.  Countless articles, for example, have been written about Justice Scalia’s inconsistencies.  Many people love Scalia for his colorful language and the fact he has articulated comprehensive theories for the way he interprets the Constitution.  In many articles, Scalia’s views have been critiqued, and major inconsistencies have been pointed out.  I think that’s a good thing.  Are these articles valuable if Scalia doesn’t read them and doesn’t resolve his inconsistencies?  Absolutely.  They are valuable to show others that there are problems with Scalia’s jurisprudence.  Please note that I’m not just picking on Scalia — many thinkers and jurists have some inconsistencies in their thinking.  The value of scholarship is to identify these inconsistencies and work to resolve them.  Until we somehow reach the “truth” about interpreting the Constitution or the law, having more analysis of the issues is valuable as we evolve our positions and ideas.  Indeed, I like to think that my views aren’t fixed, but are evolving — I believe I’m constantly learning and growing as a thinker, and to do this, I think it is good to have criticism and new perspectives.

6. It seems to me that those practitioners who attack legal scholarship often have a view that it is a waste of time to think normatively or deeply about a particular legal issue.  Their view is that all that matters is to read about the case holdings.  But in many areas of law, there is quite a dynamism.  Consider information privacy law — my field.  The law is often unsettled in many areas, with contradictory opinions being issued all the time.  New issues keep popping up.  Courts may not talk about the normative implications, but I’m certain they are thinking of them as they craft their decisions.  Being able to understand the normative implications of taking the law in different directions is very helpful for an attorney — at least in my field.  For example, consider the recent GPS surveillance case before the Supreme Court — United States v. Jones.  Here, the precedent appears to point to the conclusion that the Fourth Amendment doesn’t protect against GPS surveillance.  A narrow-minded lawyer might have given up, but fortunately, the lawyers in this case didn’t and convinced the D.C. Circuit to adopt a new approach.  The Supreme Court may reject this approach, but that doesn’t mean the effort to argue for it was worthless.  All this involves normative and more theoretical views of the law.  Of course, lawyers can act like plumbers, and many do, but the really good lawyers are thinkers and understand that policy infuses law and influences it, sometimes directly but often subtly.  They understand that courts are more comfortable changing the law if they understand the policy implications of the change.  They also know how to use normative arguments to shape the way courts interpret precedent.  Even in the GPS surveillance example, there are good arguments to support the Fourth Amendment’s applicability based in precedent.  That’s often the case with law — there are decent arguments on both sides of many issues.

7.  Theory informs practice.  It may not be a direct influence, but don’t discount its power.  Practice without theory is rudderless and unimaginative.  The law is moving forward and it is evolving.  I doubt anyone thinks today that all cases have clear answers in precedent.  Legal scholarship is the way that many new ideas can inform the development of the law.  The process is often very slow — it can take decades.  Rarely will one article have a direct and immediate impact.  But the ideas do start to take hold over time.  Consider the legal realists.  Their ideas were developed in rather theoretical scholarly articles and books, but over time, they have had an enormous influence on the law and the way we think about it and understand it.   The naysayers of today, if they lived when Llewellyn or others were writing, might have said: “This is just theory and it is useless.”  How wrong they would have been!

8. Finally, I want to acknowledge that there are many law review articles that are terrible.  Many are filled with jargon, are bloated with bad prose and uninteresting arguments, etc.  Many are indeed quite useless.  But so it is with nearly anything.   Most things that people create aren’t all that good.  For every Mona Lisa, there are more than 1000 other artworks that nobody remembers.  It often takes well over 1000 plays to get a great play, or over 1000 books to get a great book, or 1000 songs to get a great song.  And 1000 judicial opinions to get a great opinion.  It seems to me that no matter what the field, the batting average is never going to be good. In baseball, if you get a hit only 30% of the time and fail to get a hit 70% of the time, you’re a great hitter.  I don’t think legal scholarship as a .300 batting average or anything close, but neither do most creative endeavors.  Does that make them useless?  No.  Because despite a majority of “outs,”  a few home runs can be quite fabulous, and can make quite a difference!

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7 Responses

  1. Re: point 8, I think Frank Easterbrook put this quite well in an old article in the University of Colorado Law Review:

    “A free mind is apt to err– most mutations in thought, as well as in genes, are neutral or harmful– but because intellectual growth flows from the best of today standing on the shoulders of the tallest of yesterday, the failure of most scholars and their ideas is unimportant. High risk probably is an essential ingredient of high gain.”

  2. It’s rather discouraging that such things need to be said (in other words, that so many otherwise intelligent or well-meaining folks need to hear them) but I trust I’m not the only one grateful you’ve taken the time to say them.

  3. A.J. Sutter says:

    My comment a few minutes ago to your “Usefulness” post might have been more apposite here other, but in summary: Claim (1) reflects the way in which many practitioners actually do use articles, when they use them. 1000:1 dross-to-gold seems subjectively too small a ratio, but more importantly it seems as if this ratio has grown bigger during the decades. It’s fine to say there were lots of crappy paintings for every Mona Lisa, but actually the communities like Florence and Rome were much smaller back then, so the masterpieces may have been more salient. This ratio is more the issue than is the existence of useful articles (theoretical or otherwise), which seems to be the focus of your argument, and which of course is undeniable, for the reasons you mention. When the ratio is too big, you lose experienced practitioners as an audience, because they just figure it’s a waste of time to read the literature (and the perceived ratio becomes effectively infinite). It’s primarily the most junior practitioners who can be reached.

    Unfortunately, the perception of usefulness and the actual usefulness are causally connected, if we’re talking about usefulness in some kind of frequentist or other quantitative perspective. Otherwise we could say, e.g., that the 1890 privacy article was worth all the junk that came before it and after it (thinking of its consequences), and end the argument there.

  4. Brett Bellmore says:

    But suppose that in practice, the actual function of legal scholarship is just to provide results oriented judges with a comprehensive library of prefabricated rationalizations for whatever they already want to rule? Is that actually a valuable service to the larger society?

  5. Bob Loblaw says:

    Thank you for a thorough response (both here and in the other post).

    I would would ask how many of these functions you cite in the absence of the current law review system wouldn’t be performed by treatises, legal blogs, or student notes (assuming professors stopped getting paid to produce articles, but the journals remained in place). For example, the treaties Search and Seizures (2.7(e)) has quite an excellent section on GPS tracking devices (which admittedly cites a few law review articles).

    I would also still be curious to hear you point me to one law review article in the past couple of years you would point to as being worth a read to “open up new ways of thinking” and the like. I’d love something interesting to read on my flight home for winter break. I take your point that practical effects are hard to measure immediately, and that creative endeavors have a high failure rate, but if intellectual stimulation is a function that is adequately performed by law review articles, surely one good article every couple of years isn’t too much to ask?

  6. Larry Rosenthal says:

    There is much merit in this post and it is easy to take the critique of theory and the demand for “practical” scholarship too far. There are, however, also dangers in the approach taken in this post. Presuming the value of legal scholarship while rejecting demands for any reasonable rigorous demonstration of its value can also be an excuse for a kind of knee-jerk conservatism that fails to give fair consideration to even the most powerful arguments for change.

    One could make many of Professor Solove’s points about any kind of theoretical scholarship. Such scholarship obviously has its place, but the market also produces much less theoretical scholarship concerning, say, philosophy as opposed to law, largely because the market has a limited willingness to finance scholarship without demonstrable utility. It may be that what we are seeing know is the beginning of the market’s backlash against the overproduction of theoretical scholarship in an area that has as its principal economic utility its function as a trade school.

    Beyond all this, I wonder if this post may inadvertantly slight one of the greatest insights of one of the greatest legal scholars. Holmes taught us that the life of the law has not been logic, but experience. Theoretical scholarship written by those with little experience of the practical realities in which law operates may often be of limited use, even in the terms described in this post.

    Larry Rosenthal
    Chapman University School of Law

  7. Orin Kerr says:

    Dan, I worry you may be attacking a straw man. You argue that there is value in scholarship that points out errors in judicial thinking, or that offers profound new ways of thinking about the law. Who disagrees with that?