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.