-- Posted by Neil H. Buchanan
Last month, I posted some thoughts defending legal scholars who do not write articles that are useful to judges. Apparently, up until about the 70's or 80's, judges could look to law reviews to find analyses of pressing doctrinal issues, using the work of law professors to advance the work of the judicial system in developing the law. Over the last generation or so, however, legal scholarship has become mostly non-doctrinal, developing into a much more classically academic enterprise that is more theoretical and less useful for (and generally not even addressed to) judges.
As part of my analysis, I noted that my own scholarly writings have been focused on suggested statutory changes, making it potentially helpful not to judges but to legislatures. A tax professor at another law school pointed out on the comments board -- quite correctly -- that it is nearly impossible to argue that members of Congress or their staffs are reading law review articles (and, I readily add, certainly not my articles) to find good legislative proposals. Because that is true, my defense of legal scholarship might have been incomplete. With thanks to my colleague, I will use this opportunity to extend my analysis in two ways.
First, I readily agree that law review articles are not the primary transmission mechanism for communicating academic ideas to sitting legislators. It is possible, I suppose, to imagine the VERY occasional law review article that happens to catch the attention of a key congressman or staffer, but I know of no such examples. The lines of communication between law professors and Congress, if they exist at all, will likely be based on shorter policy pieces (especially op-eds) and Congressional testimony.
The question, then, is whether this means that law review articles serve no purpose, or are of sufficiently low value that we are wasting our time. My sense is that the process of thinking through issues carefully and in depth, in the way that is necessary to write a good law review article, leads to ideas that ultimately show up in op-eds and Congressional testimony. Sometimes, the process is iterative. For example, my on-line writing about the debt ceiling last summer induced me to think through a pressing policy issue, which then led me to co-author a law review article with Professor Dorf. After that article is completed (soon!), we will surely engage in further debate here on Dorf on Law and elsewhere, in a way that might (but is surely not guaranteed to) have an impact on the policy debate.
One never knows how much impact one particular blog post, law review article, or other individual piece of work has had, which means that the better way to think about the value of academic discourse is as a collection of high-risk/high-return bets. Even if a huge amount of writing cannot be tied directly to policy innovations, we might not have developed some important ideas without having gone through all of the ideas that did not catch on.
I do not know how to quantify this. Surely, there is a point beyond which even high-return outcomes are outweighed by too many clunkers, but I am at least willing to argue that the American legal academy is currently pulling its weight as an institution for generating ideas that can lead to policy improvements.
Second, I acknowledge that my first argument does not defend the most theoretical work being produced by law professors. Even though many law review editors view my work on budget deficits as highly theoretical, in fact my work is not designed to push theoretical boundaries. Generally, I rely on well-established (among economists) macroeconomic ideas in developing proposals for very real-world policy options. If my work is extremely practical in this way -- even if it is not being read in the original by any member of Congress -- then what can we say about the work of law professors who are not writing about specific legislative or administrative proposals?
One recent strand of theoretical literature in the tax area involved a debate over whether an "ideal" consumption tax would be better than an "ideal" income tax. The debate, carried out in law reviews over the space of a year or so, was explicitly acknowledged to be ignoring real-world implications. Even so, the stakes in the debate were quite high. If the pro-consumption tax argument won the theoretical debate, then it would be necessary to discuss whether real-world concerns might nonetheless make it unwise to try to replace our current hybrid income/consumption tax system with a system that only taxed consumption. If the anti-consumption tax argument won on the theoretical level, on the other hand, then there would be no need to move to the practical level.
As it happens, I think the anti-consumption tax side won that debate. Even if others disagree, however, the point is that a scholarly debate that never came close to discussing real legislation could still be enormously important to the direction of tax policy.
Even outside of tax policy, moreover, seemingly esoteric arguments can have very important affects on real-world policy. Professor Catharine MacKinnon's work on sex equality -- work that was in the first wave of non-doctrinal scholarship among law professors -- led rather directly to the development of sexual harassment law. Although I think of that as an extremely positive development in American law, even those who disagree must admit that MacKinnon's work changed real people's lives, through both legislative and judicial processes.
By contrast, many have noted the surprising lack of impact on the law that we have seen from the large body of literature on law & economics. The marriage of law with a supposedly practical subject like economics initially seemed like a sure-fire way to move the law forward, but the payoff has been surprisingly small (with some greater successes in specific areas, such as antitrust law). Again, however, we are talking about legal scholarship that did not necessarily help judges shape their written opinions in decided cases, but that did have at least some effect on the real world through the law.
It is always possible to point to particular articles or scholarly agendas that do not bear fruit. Some of them should not be pursued, and the legal academy (like all other areas of academia) has imperfect processes in place to reward better work and punish poor work. Improvements in those processes are always welcome. I am confident, however, that legal scholarship can be practical without being helpful to judges, and that it can be important without being practical.