Skillz and Influence
In a very interesting recent post at Credit Slips, Bob Lawless laments the poor drafting of the recent amendments to the bankruptcy code and the fact that lobbyists wrote most of the statute. He writes:
That’s not surprising. Most legislation is drafted, at least initially, by lobbyists. In 1978, there were around 200,000 total bankruptcy filings, and in 2005, there were over 2,000,000. I don’t expect to see a return to the days when Congress looked to bankruptcy experts for advice in how to draft the bankruptcy law. The stakes are higher than they were in 1978.
Generally speaking, I am very sensitive to claims about quality or the lack of it in legal craftsmanship. In practice, I hated dealing with O’Connor opinions because, among other things, I thought that they were frequently shoddily drafted. (Lest one thinks this is an ideological thing, I think Brennan was a superb legal craftsman, even when he was glaringly and obviously wrong.) To the extent that Lawless means “law professors” when he is talking about “bankruptcy experts” (and I doubt that he means only law professors), I wonder if there is another explanation.
I have heard a number of profs lament the fact that the professoriate no longer seems to have the influence that once it did. Generally speaking, this is explained in ideological terms. Congress is a lot more conservative than it was thirty years ago and accordingly treats the academy with far greater suspicion. I wonder, however, if other forces are not at work. A generation ago, there was considerable academic prestige to be won by virtuoso legal craftsmanship. Llewellyn and Gilmore were lionized within the academy (and without — Gilmore made the cover of Time) on the basis of — among other things — statutory drafting ability. Such is no longer the case. I suspect that with the rise of theoretical sophistication within the academy many law professors simply aren’t as good as their counterparts a generation or more ago were at legal craftsmanship. They certainly spend less time reading primary legal materials. The decline in influence may be a result of the fact that law professors on average simply lack some of the skills that gave them access to the corridors of power in years past.
To paraphrase Napolean Dynamite, maybe Congress only loves law profs if they have skillz. Numbchuck skillz, drafting skillz…