Monday, December 15, 2014

Judge Harry Edwards Is Still Unimpressed With Legal Scholarship

by Michael Dorf

Back in 2011, Chief Justice John Roberts made waves in the legal academy when he said this: "Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar." The complaint that legal scholarship is not useful to practicing lawyers was roundly condemned (e.g., here) on the ground that it's not true and that even if it were true, so what? The point of scholarship in political science is not to help politicians, so why should scholarship about the law have to help lawyers?

Roberts' line was a throwaway--although I promise a laudatory blog post for anyone who gets a U.S. law review to publish an actual article on Kant's influence on 18th Century Bulgarian evidence law. Anyway, the view expressed by Roberts has been expressed more thoughtfully and at greater length by DC Circuit Judge Harry Edwards, thus showing that distaste for legal scholarship cuts across ideological divisions.

In 1992, Judge Edwards took to the pages of the Michigan Law Review to decry what he called The Growing Disjunction Between Legal Education and the Legal Profession. Although Judge Edwards was careful to qualify his criticisms by acknowledging the existence of good scholarship, his basic attitude was nostalgia for a then-rapidly-fading era when legal scholarship was written almost exclusively by first-rate lawyers-turned-academics who were interested in the same sorts of questions as courts (and perhaps legislatures), rather than by the new generation of "ivory tower dilettantes, pursuing whatever subjects pique their interest, whether or not the subject merits scholarship, and whether or not they have the scholarly skills to master it." (Emphasis in original.)

The Growing Disjunction was a cri de coeur of an old guard. As an academic, Professor Edwards was in a very important sense a pioneer: after several years in practice, he became the first African American member of the University of Michigan Law School faculty (receiving tenure at Harvard and then going back to Michigan). But Professor Edwards was quite conventional in a way: He had been an excellent student and an excellent lawyer, and he wrote law review articles and casebooks that were helpful to lawyers because they were written from the perspective of a lawyer.

I understand that perspective and sympathize with it because it is also my perspective. Judge Edwards published The Growing Disjunction the very semester that I began my career as a law professor. Like him, I was a lawyer who lacked advance training in any other discipline (unless you count physics), and I was (and remain) profoundly interested in the sorts of questions that arise in the practice of law. Nonetheless, perhaps because I arrived at the legal academy at a time when interdisciplinarity was already established, I never shared The Growing Disjunction's particular hostility to interdisciplinary scholarship.

To be sure, I agree that there is undoubtedly something to one version of the argument (which has also been made by Judge Posner). It goes like this: People trained in other academic disciplines seek positions on law faculties because they are either not good enough to warrant appointments in their own fields or because they are simply tempted by higher salaries in law than in (most) positions in arts and sciences. They end up producing mediocre work that is not, in any event, useful to lawyers, because their real interest lies in the other field.

I have no doubt that the foregoing claim has, or at least at one point had, some truth to it. However, if higher salaries are a draw, law faculties should be able to compete successfully with other disciplines for excellent scholars, not merely mediocre ones. Further, in my experience, law faculties are very good at sniffing out whether an interdisciplinary scholar has a project that sheds useful light on the sorts of questions best studied in a law school rather than in some other department.

But Judge Edwards remains unhappy with legal scholarship. In a new paper in the Virginia Law Review, he criticizes what he repeatedly calls "[i]ntensely theoretical, philosophical, and empirical scholarship, which is very much in vogue in the legal academy these days, [but] is rarely of interest or use to wide audiences."

Some of what Judge Edwards says in the new paper is right. For example, he repeats the familiar refrain that student-edited law journals lead to articles that are too long, boring, and overly footnoted. I agree that this is a fair criticism of much legal scholarship, although I question whether student editing accounts for all of these problems. But even granting that student editing exacerbates the long/boring/too-many-footnotes tendencies of legal scholarship, Judge Edwards takes no account of its upside: As I explained a little over a year ago, faculty-edited journals and university presses lack the staff that law journals have, and thus student editors rigorously cite check in a way that peer-edited and professionally edited journals and publishers do not.

I also find puzzling the lumping together of, on the one hand, philosophical and abstract work with, on the other hand, empirical work. Empirical work is, by definition, the opposite of abstract: It looks at a great many concrete cases (if it is large-n econometric) or it looks deeply at a small number of concrete cases (if it is qualitative). But either way, Judge Edwards appears to be complaining that legal scholarship is both too abstract and too concrete.

That's not necessarily a contradiction. Perhaps Judge Edwards is like Goldilocks. He wants legal scholarship that's neither too abstract nor too concrete, but just right. However, there's no indication in his new Virginia Law Review article that Judge Edwards is even aware of the internal tension in his critique, much less that he has in mind some way of resolving it.

To be sure, Judge Edwards does not say that he dislikes all empirical work, only the work that is "intensely . . . empirical." But what does that mean? We can understand the kind of empirical work that Judge Edwards does appreciate by looking at his own article, which, after all, aims to establish what is ultimately at least partly an empirical proposition, namely that legal scholarship is increasingly unhelpful to lawyers.

In fact, there is empirical evidence on this question. In a study published in 2012 in the Northwestern University Law Review, Professors Lee Petherbridge and David Schwartz looked at every Supreme Court case over the course of 60 years and found that the rate of citations of legal scholarship increased dramatically from the 1950s through the 1980s and then declined modestly. Even the recent modest decline that they find could be attributable to the greater conservatism of the Court in the most recent period, as the Justices look elsewhere for ideologically sympathetic materials. In any event, overall the paper undermines rather than supports the proposition that Supreme Court Justices find legal scholarship increasingly irrelevant to their work.

The new article by Judge Edwards does not discuss or even cite the Petherbridge and Schwartz article. Perhaps that's because Judge Edwards regards trend evidence as irrelevant. After all, he styles his Virginia Law Review paper a follow-up to criticisms found in a 1936 article by Yale law professor Fred Rodell. Thus, one might think that Judge Edwards isn't making an argument that legal scholarship has gotten worse, only one that it was problematic all along.

There is some of that plus-ca-change-plus-c'est-la-meme-chose quality to the new article by Judge Edwards, but there is also a good deal of hand-wringing about how trends in legal scholarship and legal academic hiring have made matters worse. Thus, the trend evidence adduced by Professors Petherbridge and Schwartz is relevant to Judge Edwards's thesis, and his failure to cite or discuss it is problematic.

What does Judge Edwards cite? He invokes as evidence for the decreasing relevance of legal scholarship the fact that he and various other prominent judges and Justices believe it to be increasingly irrelevant to their work. In addition to those already noted, he cites statements by Judge Dennis Jacobs, Judge Reena Raggi, and Justices Breyer and Scalia. That last citation is particularly odd, because his source is a piece I wrote, in which I explained why Justice Scalia was actually wrong in his disparagement of legal scholarship. Judge Edwards does not attempt to argue that I was mistaken, however, because he apparently believes that it is sufficient to demonstrate that legal scholarship is increasingly irrelevant to the work of courts to note that some prominent judges and Justices think that it is.

To put the point particularly uncharitably (but I think fairly), it appears that Judge Edwards objects to intensely empirical legal scholarship because he prefers what we might call casual, or even sloppy, empirical legal scholarship.

Politesse appears to compound the problem. Judge Edwards gives many counter-examples: Scholars whose work, while intensely theoretical, he nonetheless recognizes as valuable. But no doubt due to the commendable desire not to single out any particular work or scholar as useless or boring, he does not examine any articles in order to make his point. His only real examples are in a footnote in which he cites the titles of articles that he thinks are self-evidently pointless, mostly taken from a 1990 Harvard Law Review article by Kenneth Sasson, with one coming from a 2008 essay by Justice Breyer. The latter contains the only example from the last quarter century of the supposed wretchedness of legal scholarship. Justice Breyer singles out a 2007 Harvard Law Review article by University of San Diego law professor Orly Lobel titled The Paradox of Extra-legal Activism: Critical Legal Consciousness and Transformative Politics. Justice Breyer asks rhetorically whether "the busy practitioner or judge" will "want to read" Lobel's ostensibly esoteric paper.

The answer to that question is maybe not, but, at least with respect to some practitioners, that's a real pity. Lobel's article addresses a vitally important question for public interest lawyers: What are the limits of litigation and law reform as a means of bringing about social change? As against law skeptics like Gerald Rosenberg in his widely known book The Hollow Hope, Lobel contends that legal strategies are not particularly likely to divert social actors from their goals, because all forms of activism have the potential to co-opt participants. I'm not sure I agree with Lobel's conclusions, but to dismiss her article based on its title alone is grossly unfair.

In the end, then, it appears that the complaints of Judge Edwards, Justice Breyer, Chief Justice Roberts, and the other critics of legal scholarship rest on nothing more than an occasional perusal of the covers of law reviews. There may well be problems with legal scholarship. But the judicial critics have not made any kind of a case. At most, they've sent a signal to legal scholars that if they want to influence judges, they should title their articles something like "An Article That Is Super-Duper Helpful to Judges."