The Usefulness of Legal Scholarship

A reader of my post about the N.Y. Times critique of legal education writes, in regard to the value of legal scholarship:

I happen to be on the editorial board of a T14 law school’s law review, so I have to cite check and read articles regularly. Of those I’ve read, I can’t think of a single one I thought would be useful to a practicing lawyer. The problem is, in my experience, most seem to advocate a fundamental change in philosophy to an area of law that diverges from what precedent would suggest. To me, this seems extremely unhelpful, because A. Lower courts aren’t likely to accept a grand new theory that seems to contradict what SCOTUS is saying, B. As far as I can tell SCOTUS seems not to usually change its theory either, and C. I don’t think most policymakers tend to read law review articles.

This leads me to be inclined to believe that most law review articles are useless. Are you saying my sample is unrepresentative of what’s out there? Or do I simply have a narrower definition of usefulness? Could you perhaps suggest some articles from the past year that in your mind represented useful legal scholarship?

This commentator assumes that usefulness is the equivalent of being accepted by the courts.  I quarrel with this view for many reasons:

1. An article can have an influence on cases, even if difficult to demonstrate.  Many courts don’t cite law review articles even when they rely on them.  Judges are notorious for not being particularly charitable with citations.  They often copy verbatim parts of briefs, for example.  If a law professor relies on a scholarly work even in a minor way, the professor will typically cite to the work.  Not so for courts.

2. Most articles will not change the law.  Changing the law is quite difficult, and if most law review articles changed the law, the law would be ridiculously more dynamic than it currently is.

3. No matter what discipline or area, most of the things produced are not going to be great.  Most inventions are flops.  Most books, songs, movies, TV shows, art works, architecture, or anything produced are quite forgettable and will likely be forgotten.  Great lasting works only come around infrequently, no matter what the field.

4. Most people are forgettable too.  In the law, most practitioners and judges have been forgotten.  Only a few great ones are remembered.  Of the judges who are most well-known, it is interesting that many were more theoretical in nature and had a major impact in changing the law — typically in ways law professors might change the law.  Think of Benjamin Cardozo, who wrote many articles and books and who radically changed the law.  Think of Felix Frankfurter, a former law professor.  Think of Louis Brandeis.  Think of Oliver Wendell Holmes.  These were jurists who were thinkers.  They were readers.  They were literary.  They were writers of scholarship too.  Maybe the forgettable practitioners and judges are the ones who ignore legal scholarship.

5. The commentator’s remarks that I quoted above seems to be only focused on judicial decisions.  Legal change can occur legislatively as well as through administrative rulemaking.  A lot of legal scholarship that critiques the law can have influence in legislatures or with agencies.

6. The commentator writes: “I don’t think most policymakers tend to read law review articles.”  I doubt that the Congresspeople themselves read law review articles, but staffers might take a look where relevant.  They won’t likely read them cover to cover, but if there’s an article on point that is helpful, I believe they will read it.

7. In my own experience, I’ve found that some of my more theoretical writing has been read frequently by practitioners.  My book Understanding Privacy, for example, is a theoretical account of what “privacy” means and why it is valuable.  I base my theory on the ideas of Ludwig Wittgenstein and John Dewey, and I cite to a lot of social science literature.  More than some of my more so-called “practical” work, it is this book where I receive the most positive feedback from practitioners.  In particular, a lot of Chief Privacy Officers in business, government, and education find the book useful.

8. Legal change can be slow.  Samuel Warren and Louis Brandeis’s The Right to Privacy was a very influential law review article, spawning four privacy torts in a majority of states.  They published their article in 1890.  Ten years later, the article would have been viewed as a failure.  No courts had adopted their theory.  No legislatures had adopted their theory.  Finally, in 1902, the N.Y. Court of Appeals rejected Warren and Brandeis’s theory.  At this point, the legal scholarship naysayers would be saying that Warren and Brandeis’s article would have been a total flop.  A dozen years had passed, and a court declined to change its precedent based on the article.  But then the N.Y. legislature stepped in and recognized a privacy tort based on the article.  And slowly, other courts and legislatures followed.  This process was slow.  It took about 50 years to unfold.

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6 Responses

  1. paean says:

    The New York Times piece claims that 10,000 law review articles are published every year. Is your analysis applicable to all of them, or is it specific to your own work? It seems that both sides of this debate are cherrypicking good or bad examples of scholarship when they should be looking into the value of law review articles generally.

  2. Matt Bodie says:

    Dan, I think you’re actually underselling the case. Not a single article would be useful to a practicing lawyer? I just skimmed over this:

    and there are articles on antitrust, IP, criminal procedure, etc. Many of them refer specifically to a statute or a case. And in terms of the Supreme Court not changing its theory, why do you think we have 5.5 hours of argument for the health care reform case? Why have we had a sea change in our Second Amendment jurisprudence? The Court doesn’t just come up with this stuff out of nowhere. I suppose you could claim that too many academics are focused on con law issues, but there is plenty of work out there on corporate law, tax, torts, IP, etc. I guess I’m a bit confused about the definition of “useful.” I’m working on a chapter on privacy for the Restatement Third of Employment Law, and I’ve found Dan’s theoretical work on privacy incredibly helpful in framing the common law issues.

    One other question for T14: so if you get to choose articles this spring, will you look for those that have more practical value?

  3. A.J. Sutter says:

    It might help to distinguish the ways in which an article can be useful. In my practice, I’d differentiate between articles where (A) the main thesis is useful and those in which (B) just some summary of the statutes and precedents (usually in section I or II of the piece) is useful. In the past 30 years I’ve found more B-class useful articles than A-class ones; they especially include summaries of the law on a particular issue in a specific jurisdiction (e.g., Delaware, Louisiana), and esp. in situations where I can’t easily access the sources of law directly (e.g., Chinese statutes and regs, German case law and commentaries, etc.). However, it’s getting harder to find even B-class ones in student-edited law journals. A-class ones are so rare in my practice I can’t recall one off the top of my head, though I suspect at least one dealt with the UCC.

    So while Dan’s argument for the existence of useful articles is hard to deny, it doesn’t speak to the issue of the what proportion of today’s articles are useful. Even if there were a greater absolute number of such articles, finding them has become much more hit or miss (despite Google and the SSRN search window) because publication has become less discriminating. Not surprising, considering who the editors are.

    It’s also interesting that the means of transmission suggested in the post — clerks, staffers — are precisely those who are among the most junior working lawyers. Come to think of it, I was also in the junior stage of my own transactional career when I found more articles to be useful. So maybe it’s hard to separate whether the availability of useful law scholarship has declined in the past 25-30 years, or whether it’s just that only less experienced lawyers read them.

    As for Matt’s criterion for what should be useful to a practicing lawyer, it’s not only the subject matter that’s important, but the way in which it’s addressed. All too many of the articles I read about IP, especially patents, show little to no practical understanding of how that IP is used in industry. At least when it comes to areas like commercial law, contracts, IP, etc., the closer one is to the front lines of business operations, the more unrealistic law review articles tend to appear. Not surprising, considering the experience level of most law faculty.

    The anecdote about the 1890 privacy article, then, isn’t so apposite, though it is ironic. It’s not so apposite because specific articles had a better chance of getting noticed found 100 years ago, there being both fewer law reviews and fewer practititioner-oriented publications. Plus, Brandeis’s own reputation grew as the years went by, which may have made his article seem both more salient and more convincing in retrospect. The irony: Brandeis and Warren were practitioners at the time they wrote the piece.

    That’s not to say that good-quality theoretical work by full-time law faculty doesn’t have value for society, including for practitioners reflecting on the social and political context of their work. As my own activities have diffused outside the boundaries of practice and into writing and teaching, I’m more drawn to pieces discussing political and moral philosophical issues than I was when my nose was buried in doing deals in the semiconductor industry. But the fact remains that a great deal of the legal scholarship of today has much more to do with rites of passage and lateral jockeying within the legal academy than it does with anything useful outside it. This reflects at least a degradation of the signal-to-noise ratio during recent decades.

  4. Bob Loblaw says:

    A couple of points:

    First in response to Matt:

    As I admitted in my first post, it’s entirely possible that my sample is biased and my particular law review (or the articles I’ve worked on) is less useful than the average set of law review articles. In fact, I have heard anecdotal evidence that the higher ranked a law review is, the less practical the law review articles are. So I mentioned my school’s rank not as evidence that it’s law review should be producing excellent work, but to note the possibility that my personal sample is biased.

    But I think there is plenty of room for legal scholarship to be useful. To take one example cited by Matt, an article published in the past year addressing the constitutionality of the individual mandate could be useful. It is a question which courts have differed on, and there seems to be room in the precedent to resolve the question either way. So an article exploring the possible arguments could be useful (assuming it wasn’t simply duplicative of other works).

    But I simply haven’t read articles like that as an editor. The articles I’ve read are either in the vein of criticizing settled case law, or proposing theories that seem to me to be foreclosed by precedent. So I assume that the vast majority of articles aren’t terribly useful. Like I say, maybe my sample is just bad.

    “Why have we had a sea change in our Second Amendment jurisprudence?”

    It think it’s fair to raise this as an example of legal scholarship that criticized “established” case law that turned out to be useful. However, the Supreme Court reverses itself so rarely that it seems like the probability of criticizing any given case being a useful endeavor is unlikely. It would be akin to advising someone that purchasing a lottery ticket is a good idea because there are examples of people who win.

    “if you get to choose articles this spring, will you look for those that have more practical value?”

    If I did, yes I would. But in my particular position on the board, I have no choice in selection of articles.

    I think this point illustrates a tendency to blame students for the sort of articles law reviews produce. While it is certainly fair to blame students who choose to publish bad articles, it also to me seems to miss some of the selection bias of how law review articles selection committees are formed.

    First, most law reviews have selection system that screen based upon writing talent, or GPA or both. People who are perceived to have good writing talent by existing boards tend to be those whose writing shares characteristics with the articles those boards tend to publish. People with high GPAs are those who tend thrive in the theoretically oriented system of law education we currently have. So the pool of people on law reviews tends to be those closer to law professors than the average student body.

    Secondly, in many law reviews (including my own) not every member of the law review is involved in selection of articles. It is position that must be applied for, and involves reading more law review articles than an ordinary member would have to. So those who hate the current state of legal academia are less likely to apply. My contrast, those who like legal academia or especially who wish to become law professors (because it’s a more valuable credential for that career path) are more likely to apply.

    Third, often existing board members get to select their replacements. So the exact people who have been choosing the articles get to pick the people who choose the next set of articles. As noted above, these are more likely to be those with aspirations to become law professors.

    In the end, it seems to me, one ends up with a body of students choosing articles that most resembles those whose articles are published in the law reviews. It’s somewhat of a self-perpetuating system. But it would be unfair to claim that the typical law student ratifies the type of content law reviews tend to publish.

    In response to the post itself:

    “Most people are forgettable too. In the law, most practitioners and judges have been forgotten. Only a few great ones are remembered…Maybe the forgettable practitioners and judges are the ones who ignore legal scholarship.”

    To be a good practitioner, I don’t have to be memorable. I just have to perform well as a lawyer. If I don’t, my client, or the partner who is accountable to her, can fire me. But I think I would be doing a disservice to my client if I sought to be “memorable” rather than simply effective.

    I feel the same way about law professors. Maybe a practical article discussing the intricacies a privilege that only applies in a narrow area of case law wouldn’t be as flashy as a grand reimagining of First Amendment doctrine. But as a practitioner, it would be tremendously useful, especially if there’s no treatise discussing it in detail. I would love to see more academics ask whether what they are producing will help anyone rather than concern themselves with whether their work is “memorable”. And although my tuition goes to pay a law professor’s salary, unlike the client, I can’t fire those who I think are simply wasting my money.

  5. A.J. Sutter says:

    @Bob: Thanks for your enlightening comments. As to the Second Amendment, though: I’ll take your word for it that the sea change in jurisprudence indeed scores a point for recent legal scholarship being useful to judges. But given the outcome, I’d have to question whether the scholarship was beneficial to society at large. In these threads, we’ve implicitly been assuming that being useful to the few implies being beneficial to the many. Guess that might not be the case.

  6. Matt Bodie says:

    I guess my questions, perhaps too pointed at times, are designed to get at the root of the claim. Maybe I’m too biased, but I think most legal scholars try to talk to academics, judges, practitioners, and policymakers about the shape of the law. Some of the pieces are pitched more to one audience than another. But even at high levels of abstraction, law professors are looking to provide an angle, an insight, a reform. Look at the empirical legal studies movement. Although many of the analyses require advanced statistics to undertake, at root these studies are designed to figure out what is really going on out there. You may quibble with the level of abstraction, or the research design, but the purpose of these studies is to figure out what is actually happening. These studies may not be relevant to any particular case, but I would think they’re extremely useful to the profession as a whole.

    And I’ve mentioned this before, but I just posted a comment last week at the Conglomerate about how the Delaware chancery has really had a meaningful relationship with academia. Legal scholarship has really changed the way that the Chancery Court approached basic questions like the purpose of the corporation, the legality of the poison pill, and the fiduciary duties of LLC members. And you need big-picture think pieces as well as smaller-bore doctrinal articles. The big picture pieces really can have a big impact on the doctrine. I’m surprised Bob hasn’t seen any health care pieces — I’ve seen a few. But more importantly, it’s been the work of folks like Randy Barnett that have built up the momentum for this kind of movement in the first place.

    I do think legal academics have to cultivate the relationship between their scholarship and their readers, especially law students. Students have an incredibly important role in the process. Rather than downplaying it, I think we need to foster it. I have some thoughts and suggestions here:,%20OR1-2,%20Bodie.pdf

    But Bob, I’d encourage you to make your thoughts know at your law review. Sure, there are a lot of reasons why the system is the way it is. But if you think it should work differently, I’d encourage you to give voice to your views. You might find others on your own review who would agree with you.