Thursday, October 02, 2008

Lawyers and Legal Scholarship

[Cross-posted from Prawfsblawg, where I am guesting this month.]

This [i.e., engaging in the conversation started in this post] wasn't where I'd planned to start, but since I've got some thoughts on the scholarship-practice divide I might as well add my two cents. I spent just over eight years in practice before entering academia, so I have some understanding for the practitioner perspective. My firm maintained subscriptions to many of the top law reviews, which I would browse as time permitted. My reactions ranged from "wow that's really interesting!" to "wow that's complete ivory tower BS!" to "you know, I think I can actually use that!" And use them I did. I distinctly recall, for example, discussing Alan Michaels' "Constitutional Innocence" article in the Harvard Law Review at oral argument before the Minnesota Court of Appeals. Nobody laughed.

So I think there's plenty of scholarship, even work done at relatively high levels of abstraction, that can be put to work in practice. Judge Posner, in his recent book How Judges Think, makes more-or-less the same point. At least twice he bemoans the fact that the lawyers who appear before him focus too much on case law. He writes that "the second-biggest mistake that appellate advocates make, after exaggerating how much the judges know about, or are willing to devote time to learning about, the circumstances behind the appeal, is to think they can win by rubbing the judges' noses in the precedents." (p.220) Instead, he suggests, advocates should focus on establishing "the purpose behind the relevant legal principle and then show how that purpose would be furthered by a decision in favor of the advocate's position." (id.) One needn't accept Posner's normative arguments about judging to accept that there is considerable descriptive truth to what he is saying. And one of the best places to find discussions of the purposes behind legal principles is, you guessed it, law reviews. That was my experience, anyway.

This is not to suggest that legal scholars could not do better. There is a middle ground between doctrinal concreteness and theoretical abstraction (and that draws on both) that we too often fail to occupy, and there is plenty of work that is flawed simply by virtue of its failure to realistically account for the real world. I suppose my position is ultimately that of a (as I believe Al Gore described himself two decades or so ago) "raging moderate." For everything that people do, plenty of it will be bad. (And whether it's bad of course depends in part on what one seeks to use it for.) But it hardly seems appropriate to jump from the conclusion that some legal scholarship is bad to some general, pejorative conclusion about the legal professoriate. It is, I think, likewise misguided to conclude that fault for whatever divide there might be between the world of legal practice and the world of legal scholarship lies entirely on one side. There might be responsibility on both sides, and some (perhaps most) of it might be the consequence of systemic factors well beyond any individual's control. It's a conversation worth having, and like most conversations one in which epithets are not likely to be helpful.

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