Commitment (and some finger-pointing)
The Association of American Law Schools held its annual meeting over the last few days. One of the panel discussions, “Implementing Scholarship,” was particularly gripping, with NY Times reporter Adam Liptak, Stanford LS professor Deborah Rhode, and Yale LS Dean Harold Koh making strong statements.
You may remember that Liptak wrote a column in March 2007 pointing out that judges just don’t read law review articles.
Here’s a rough paraphrase of his remarks.
I had lunch with a law professor the other day, and I asked him what he thought of his students. “I don’t have much in common with them,” he said. “They all want to be lawyers.”
Judges don’t open up law reviews. The articles are in general bad - badly written, badly laid out, edited by students (which is insane). They’re so uninviting for readers. You’ll get to the nugget of the article, buried deep down in Section V, and it says something like “This issue deserves careful consideration.” The first footnote, where people cite famous law professors who read their piece, seems to be the most important.
I know from my own experience that students will ask to change conversational English to non-conversational English — “in many ways” to “in innumerable respects.”
SSRN is important and useful, and by all means post what you can as soon as it’s ready.
Judges want to see a roundup of what’s going on - focused, narrow discussion.
I’m troubled that when I get to a proposition that interests me, I’ll get a “see, e.g., [one case]” rather than a 50-state survey.
Maybe one reason Posner’s pieces are so widely read is that they’re short and they say a lot. Readable is really important.
Now, empirical work helps a lot - it’s very useful to me when it’s good.
And there are other ways (other than law review articles) to reach people. Blogs when done well are a signal development in legal scholarship. Sentencing policy, election law - immediate, thoughtful, many links. How Appealing is great. Legal scholars, writing with authority about what’s going on in legislation and cases moments after developments occur is immensely useful. Marty Lederman and Orin Kerr, for example. So that’s encouraging for the future.
Then Deborah Rhode (one of her books is called In Pursuit of Knowledge: Scholars, Status, and Academic Culture) stood up. She’s saying that both academics and the mainstream press are doing a bad job of forwarding knowledge.
A very very rough paraphrase of just a few of her points:
As public intellectuals get more public they get less intellectual. Scholars are bumping up against mainstream press structures that are doing a bad job, generally - balance is absent. Journalism is competing with even worse forums. Punditry is a problem; can be irresponsible. On the other hand, educating reporters is a drag. And it’s frustrating trying to place op-eds in mainstream newspapers - and even more frustrating when you hear from the public in response to those op-eds you’ve successfully placed. Television is also difficult.
Reader-friendly styles aren’t what scholars are supposed to have — they’re not in the “gist” business. But notoriety is addictive, and people find themselves saying more and more about less and less, giving off a buzz of intellectual activity with no work. Part of the problem behind all of this is the reward structure that academics have — it deserves careful consideration.
Next came Dean Koh, to take on the “implementing scholarship” question posed by the panel. His point is that a scholar should be forwarding, with commitment, a central idea that he or she cares about. Very rough paraphrase:
When I interviewed with Guido Calabresi, he told me that he had had two ideas: the Cost of Accidents and the Common Law in the Age of Statutes. I have just one idea: domesticating international law through norm internalization and vertical enforcement. I have worked to influence government policy along these lines in a host of ways, by filing briefs, serving in government, giving advice on treaties, teaching, writing casebooks, writing articles, writing op-eds [many many examples].
When my brother told my father that following his medical training he wanted to do research, and not be a medical doctor, my father said, “When a doctor comes to understand the body, he acquires a duty not just to observe disease, but to cure it.”
I believe that scholars should be responsible citizens, committed to a vision of the rule of law. Your vision may not be the same as other people’s, but you should be committed to it. Your work should be both relevant and designed to make the world a better place. We have an obligation to use ideas to improve the world.
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So go out there and be good readable law review article writers, forward the relevant, world-changing ideas you’re committed to - and make sure that the mainstream press accepts the right op-eds and doesn’t mangle them. And you should have a blog.
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