Are We Writing Only For Ourselves?
In 1992, Judge Harry Edwards wrote an article in Michigan, The Growing Disjuncture Between Legal Education and the Legal Profession, which was, as the title suggests, an effort to redirect legal scholarship from what Edwards perceived as a too-abstract and theoretical path towards work that would be of more immediate use to h judges and lawyers. I think it fair to say that, while legal scholarship, has since evolved in a variety of directions, one of them has not been more practical scholarship along the lines Judge Edwards urged.
His piece has been much discussed, but also essentially ignored as legal scholarship has moved futher in the direction Edwards decried (I’m speaking too broadly here, I know, since terrific doctrinal scholarship continues to be produced and an increasingly empirical literature might be the most “practical” of anything that appears in the law reviews). But the median journal article, so to speak, at least in the leading law reviews, is one it is hard to imagine a lawyer or court citing, and not much easier to imagine your average policy-maker even understanding.
But this is old news. As I start this academic year, iit occurred to me that not only is legal scholarship no longer written for judges and attorneys but we in the legal academy seem far less interested than in past years in even acquainting future judges, lawers, legislators, and policy makers with our scholarship. Casebooks are increasing ignoring the literature that is the stuff of academic discussions of the topic in question, and, when the scholarship is cited it is typically in tip-of-the-hat fashion.
This might be a kind of left-handed compliment to Edwards, who was also concerned about whether legal education was failing to educate students for actually practicing law: “The law student who merely takes a variety of pure theory courses, and learns that ‘practitioners [a]re sell outs,’ will be woefully unprepared for legal practice. That student will lack the basic doctrinal skills: the capacity to analyze, interpret and apply cases, statutes, and other legal texts. More generally, the student will not understand how to practice as a professional.”
I guess my thesis is that legal education has responded to Edwards by taking his critiques of the educational process seriously, but not by altering in any meaningful way the fundamental goals of legal scholarship. Thus, the disjuncture that Edwards was concerned about to a full-fledged breach. We not only do not write for the bench and bar — we also do not write for our students.
Some might say that the move towards simpler, less sophisticated casebooks, is due to pressures by publishers, who want shorter, more student-friendly books. But, of course, students don’t buy casebooks (well, they do, literally speaking, but they are a captive audience for the professors who “require” them), so it’s likely that the publishers are reacting to the market which is, in turn, rejecting (as far as the classroom is concerned) our own work. Casebooks have always been viewed as “the lowest form of scholarship,” but current pressures threaten to push them down even further — to the highest form of study aids.
All of which leads to the title of this piece — “are we writing only for ourselves?” And, if so, why?