Monday, May 07, 2007

Scholarship and the Second Amendment in the Courts

Yesterday's front page of the NY Times included a story by Adam Liptak arguing that the conversion to the individual right view of the Second Amendment by liberal constitutional scholars over the last two decades played a role in the movement of the courts towards that view. The principal exhibits for this proposition are Sandy Levinson, Akhil Amar, and Larry Tribe. Although I'm more or less on the other side of this issue, I won't use this post to object to the substance of their respective arguments. Instead, I want to question the causal claim Liptak makes.

In a Times article on March 19 of this year (no longer available for free on the web, but you can read my brief discussion of it here), Liptak reported on an academic conference on legal scholarship featuring academics and judges. The takeaway point of the conference (and the Times article) was that judges have little use for law review articles. So what gives? Are judges indifferent to legal scholarship, as Liptak reported in March, or is legal scholarship a moving force behind the judicial sea change we may be observing with respect to the Second Amendment?

In fairness to Liptak, it's possible that the influence of legal scholarship on courts is declining overall but that in the area of the Second Amendment scholarship plays an important role. Possible, but doubtful, I think. To be sure, there are areas of the law in which a new academic paradigm clearly drives doctrinal change. The shift to an efficiency rationale in antitrust law is the clearest case. But such examples are rare. More commonly, I think, academic scholarship, even when cited by courts, plays a non-causal role: At least in hard cases, judges decide the case first and then look for support for their conclusions, taking it in academic work if they can.

Even when a court cites legal scholarship in a less opportunisitc fashion, it may be a mistake to attribute specific decisions to the influence of scholarship as such. Sometimes social attitudes or material conditions change and this change then gets reflected in both academic writing and judicial decisions. A nice example of this phenomenon, I think, is the shift between Bowers v. Hardwick in 1986---denying recognition to a constitutional right to same-sex sodomy---and the Supreme Court's decision in Lawrence v. Texas in 2003---overruling Hardwick. The Lawrence opinion cites a number of books and articles in support of its conclusion, but one need not be a cynic to see that the real change was in social attitudes, including the attitudes of the Justices. My point is not that intellectual movements in and about the law have no impact, nor am I a crude Marxian. My point is simply that in general, social movements and social and economic conditions play a larger role in shaping the law and academic trends than vice versa.

An interesting question for me would be why the political/legal movement for an individual right view of the Second Amendment has gained as much traction as it has. For my explanation why, despite that traction, this movement probably won't succeed in the Supreme Court (at least absent one or two more Republican appointments), see my article, Identity Politics and the Second Amendment, 73 Fordham Law Review 549 (2004) (sorry, no web version available).

[Full disclosure: I spoke with Mr. Liptak last week and expressed skepticism (along the lines described above) about his causal claim. I guess I didn't say anything quote-worthy.]