Chief Justice Roberts’ scathing dismissal of the value of legal scholarship evoked a far greater outpouring of comments, mostly fervently agreeing with the Chief Justice, than I’ve ever seen in prior ABA Journal articles about law schools. Many commentators directly connect the irrelevance of most law review articles with the poor job they say law schools do of preparing their graduates for practice. A few law professors respond with intense defenses of academic scholarship and assertions about the educational effectiveness of law schools. It’s a rich mine for this perennial debate. The original article and all comments — there are many more — can be found at http://www.abajournal.com/news/article/law_prof_responds_after_chief_justice_roberts_disses_legal_scholarship/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email .
Law Prof Responds After Chief Justice Roberts Disses Legal Scholarship
Posted Jul 7, 2011 5:29 AM CDT
By Debra Cassens Weiss
Chief Justice John G. Roberts Jr. has raised hackles with his suggestion that there is a disconnect between the scholarship of law professors and the work of practitioners.
Roberts knocked law professors and their work while answering questions at the 4th Circuit Judicial Conference in White Sulphur Springs, W. Va., at the end of June.
The American Constitution Society blog has Roberts’ quote: “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.” C SPAN posted the interview.
University of Maryland law professor Sherrilyn Ifill responded in a blog post at Concurring Opinions. “Legal scholars will on occasion indeed take up Kant (and there’s no shame in that),” she wrote, “but more often than not, published law review articles offer muscular critiques of contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decision-making on how law develops in the courtroom.”
Jul 7, 2011 6:49 AM CDT
In my practice, I don’t have time to read dense 70 page articles concerning “muscular critiques of contemporary legal doctrine.”
Jul 7, 2011 7:02 AM CDT
The Chief is right on this. What’s even worse than the lack of relevancy of the academy to law (ie the practice of law) is the “syndication” of UK/US law programs around Europe and elsewhere, replete with European civil lawyers not trained in common law purporting to teach undergrads (ie potential future attorneys) common law. Education = nothing more than a dirty business for these colleges, and the Chief is right to remind faculties to stay focused, and stay relevant.
Jul 7, 2011 7:25 AM CDT
Seems to me that Roberts only said what most people already know. I Kant imagine why it is seem as a criticism.
Timothy P. Flynn
Jul 7, 2011 7:36 AM CDT
Most lawyers would agree that a survey of European intellectual history, even a muscular one, has no application whatsoever to the contemporary practice of law and is really a luxury. I would love to have that kind of time; too busy, however, keeping up w/ deadlines and developments in my practice areas.
Jul 7, 2011 8:05 AM CDT
Furthermore, these academics entirely fail to produce lawyers who can effectively represent clients upon graduation. Perhaps they should spend a bit more time studying their training techniques and a bit less on “muscular critiques”. It’s an absolute shame that law schools produce thousands of JD’s who’ve never seen the inside of a courthouse (let alone courtroom).
Jul 7, 2011 8:18 AM CDT
Well, I never thought I would say this, but I totally agree with Chief Justice Roberts.
Jul 7, 2011 8:29 AM CDT
Chief Justice FTW!
Jul 7, 2011 8:54 AM CDT
While I agree that legal academia’s fascination with the esoteric serves noone particularly well, I wonder what the Chief Justice wishes they would focus on. There is, after all, no shortage of publications that are oriented toward the practice of law as craft, rather than as theoretical and social construct.
Does he wish a Scalia-esque inquiry into originalism? That’s an ideological position from the outset, and would undoubtedly swiflty devolve into arcane pieces on the role of 18th century English landscape painters on Jefferson’s view of a pastoral nation. Is that better?
It’s appropriate to point out the problems in legal scholarship. It’s also appropriate to ask the CJ, now that he has seized that particular pulpit, what now?
Jul 7, 2011 9:34 AM CDT
Law review articles—-great for tenure for law school professors but useless for practical law.
Jul 7, 2011 10:16 AM CDT
Looks like no one on this blog reads law reviews, or follows links in the posted stories, since Professor Ifill gives a number of examples to disprove Roberts’ claim. (The other possibility, of course, is that no one on this blog practices at a level where ideas are important). The complaint that law review articles are irrelevant to practice goes back to a famous Harry Edwards article (in a law review of course), in the mid nineties and has become kind of an urban legend since then. There have been several empirical studies of the issue in the last few years, and they have found that court usage of law review writing is at an all time high. This is particularly true for business law issues and Courts which specialize in them, such as the Delaware Supreme Court. For a good example of an article describing this phenomenon, with citations to other such articles, see James A. Catone & Michelle Harner, “Is Legal Scholarship Out of Touch? An Empirical Analysis of the Use of Scholarship in Business Law Cases” 19 University of Miami Business Law Review (2010). Roberts now has added ignorance to his growing list of under-qualifications for the job he holds. Cheap shots are the stock in trade of bullies and insecure yuppies, so I suppose no one should be surprised.
Jul 7, 2011 10:49 AM CDT
“The other possibility, of course, is that no one on this blog practices at a level where ideas are important”
“Cheap shots are the stock in trade of bullies and insecure yuppies, …”
So which one does that make you, Pushkin? Or should we add arrogant legal scholars to your list?
Jul 7, 2011 10:56 AM CDT
The Chief seems inclined to unmoor the law from its intellectual and moral foundation. It is bad enough when freshly elected, inexperienced politicians try to do that, but for the Chief Justice of the United States to applaud any move in that direction is sad, indeed. The currents and eddies of right and wrong, which the Chief finds such plain sailing, I can’t navigate, I’m no voyager. But in the thickets of the law, oh, there I’m a forester.
Jul 7, 2011 10:58 AM CDT
I agree. The only thing worse than a law review article is an opinion by the Supreme Court of the United States. For intelligent analysis, lawyers should read opinions from the Seventh Circuit.
Jul 7, 2011 11:24 AM CDT
I grew up in the mistaken belief that the Supreme Court represented the point where legal scholarship formed practical law and the Supremes were (at least theoretically) the greatest legal scholars in the land. Apparently I was wrong, they are just a bunch of ambulance chasers made big.
I can understand legal scholarship having no place in a storefront law firm. But if it has no place in the Supreme Court, where then? Isn’t that what separates us from Bulgaria?
Obviously I am not a lawyer
Jul 7, 2011 11:42 AM CDT
Instead of getting defensive, listen to and implement the feedback.
Jul 7, 2011 11:44 AM CDT
After reading Prof. Ifill’s article, I have to agree with her. There are many law review articles that the Chief Justice should but won’t read, especially the ones criticizing Supreme Court opinions like Iqbal.
Jul 7, 2011 12:17 PM CDT
tenured but practical
Jul 7, 2011 12:37 PM CDT
I’m a law professor and in this rare case, agree with Justice Roberts. The so-called Legal Academy promotes obscure, mind-numbing legal scholarship over focused topical writings that can help judges, lawyers, students, and the profession. We have to start admitting that the Emperor has No Clothes.
19. Jim-OH 2011-07-07 1432 -0400 [ ]
Jul 7, 2011 1:33 PM CDT
As I see it, some are well worth the read, some not.
Jul 7, 2011 1:44 PM CDT
19 Jim-OH has it exactly right. Some articles in law reviews are quite esoteric and of little use in the practice of law. Other articles in law reviews can be quite useful. Like all academic publishing, law review articles are all over the map.
So far, only Pushkin (@10) has cited any hard evidence that might indicate the current relevance or usefulness of law review articles.
Jul 7, 2011 1:48 PM CDT
Tenure at Cooley does not constitute a real law professorship.
Jul 7, 2011 1:56 PM CDT
@ John Ruskin – but wasn’t Pushkin’s evidence written by law professors and compiled in a law review article – sounds like a potential bias and credibility issue. Seems to me that a couple of law profs spending time, at the expense of THE U,to study and write an article touting the relevance of the law review articles of their peers may be unintended evidence contradicting Pushkin’s position.
BTW can’t someone make an offhand remark at a conference of judges without pricking the thin skin of the tenured ivory tower set – or will they just write another article about it?
Jul 7, 2011 2:08 PM CDT
Think about it – how many busy practitioners would have the time to research and write a law review article enumerating and categorizing the law review articles that are inane and completely irrelevant to the practice of law? How many such articles, if written, would see publication? So it would seem that the deck is stacked and the articles will be written by professors, defending their own.
I enjoy philosophy and theoretical physics and understand the impact of philosophy on the drafting of the D of I and our Constitution, but really… I also enjoy a good whiskey – but not while I’m working.
Jul 7, 2011 2:34 PM CDT
It’s hard to believe lawyers themselves disparaging legal scholarship, which forms the intellectual basis of our craft. It reflects a fundamental misunderstanding of the role and scope of scholarly legal research.
Justice Roberts’ whining is more understandable. He has been an intellectual lightweight for his entire legal career and possibly knows less about the law than any of his modern predecessors as Chief Justice. His own decisions are informed by political concerns, not the law. That’s why he was nominated for appointment by the intellectual lightweight President who described the U.S. Constitution as just a “goddamned piece of paper.”
Perhaps C.J. Roberts would prefer more practical law review articles that emphasize “How to Wipe Your Butt With the Constitution,” or “How to Behave Unethically as Chief Justice of the Supreme Court and Get Away With It.” Those are Roberts’ specialties.
Jul 7, 2011 2:48 PM CDT
Wow jbolaw, your comment clearly shows the depth of your scholarship and political neutrality – sometime, as with your comments, the best said is – nothing.
Jul 7, 2011 3:38 PM CDT
I’ve used law review articles numerous times to aide in understanding areas of law new to me. I’ve also used them to help flesh out novel arguments and legal theories.
That doesn’t mean all articles are useful, but it’s impossible to say when an article is useful. It’s like art—usefulness is the in the eye of the user.
Just the facts, Ma’am
Jul 7, 2011 5:55 PM CDT
You wrote “Like all academic publishing, law review articles. . .”
You should not confuse law review articles with real academic publishing. In virtually all other disciplines journals are edited by accomplished scholars in the area. Law reviews are edited by law students. It’s a wonder they have any credibility at all.
Jul 7, 2011 6:03 PM CDT
Heh. I always figured Munchkin for the law review type.
Jul 8, 2011 2:13 AM CDT
What’s the point in doing real scholarship in even Supreme Court briefs if the justices merely scoff at it instead of rebutting it even though they’re in fact no more knowledgeable about the matter than anyone else?
Professor Marc H. Greenberg
Jul 8, 2011 2:37 AM CDT
I practiced law, both litigation and transactional work, for twenty years before becoming a full time law professor, and I still do a small amount of practice. I bring my experience to my teaching and my legal scholarship, which often focuses on practical approaches. What is disappointing about the Chief Justice’s comment is its generalized nature – like lawyers, some legal scholarship is good, and some is worthless. The valuable work is cited regularly in appellate decisions and helps guide legal policy.
Stephen R. Pelcher
Jul 8, 2011 5:08 AM CDT
As a general proposition, the observation of Justice Roberts is undoubtedly correct.
Ed’s Law School Grad (evening division)
Jul 8, 2011 5:50 AM CDT
This is great. The clash of the Ivory towers. Of course the seed of this criticism from Chief Justice Roberts probably has nothing to do with his politcal views and that of many law professors—does it?
Anyway it is amusing to us members of the bar considered the “great unwashed” as we feel neither one of these two could tie there own shoes in the “real world” like in fromt of a jury or speaking to a battered spouse or assisting a small farmer being crushed by regulation .
SO you two Have at it and when I’m constipated or can’t sleep I’ll read about it.
ABA—-keep printing this stuff now that we’ve all forgotten about Casey Anthony WE NEED this information.
Got any Stories about Judges turned Pro Wrestlers or Law professors who are really superheros?
Why am I reading this ? I’ve got to got to work I guess I’m just jealous.
Jul 8, 2011 6:04 AM CDT
@jbolaw – Loved your comment. I agree that more practical courses should be given at law school, but to practice without understanding the history and underpinnings of the law and legal theory is equally dangerous.
Roberts basically admitted that his Court doesn’t give a rat’s a** about the Constitution or the freedoms it was meant to protect. I wonder what he considers esoteric? Likely articles criticizing the lack of Constitutional bases for a number of decisions by the so -called “originalists.”
Jul 8, 2011 6:07 AM CDT
I’ve read, cited and written law review articles. So has John Roberts. A fair reading of his statement is that it makes a simple point; academics who study and write about arcane and antiquated legal principles offer little to the average practitioner who is focused on advocating in the here and now. I would add that assembling that knowledge does even less for the lawyer’s clients. These critiques, predictably, evidence a distaste for the Chief Justice’s philosophy more so than his intellect. Fortunately for our nation the critics whines are meaningless – ersatz upon an an anonymous and unseen palette of liberal woes. Perhaps they should all write law review articles about this and cite them to the US Supreme Court.
Jul 8, 2011 6:36 AM CDT
There is a distinction not addressed in the commentary and it is found in the manner and content of legal argument in Europe where semantics can still win a case, as opposed to legal argument in the US where academics is not construed as entirely relevant.
This is valid comment because the reference to Kant and 18th Century Bulgaria is in effect a reference to semantics as practiced in legal argument in Europe. A European judge can be persuaded on the intellectual principals derived from legal history, and ancient and obscure case law, whereas in the US such an approach is considered subversive, an attempt to distract and divert the legal process.
A common response from an American judge to a largely academic brief might be “Do you expect me to read this?” where a British judge would embrace the academic principals and apply them to the case and allow substantial and unrestrained argument on the semantics.
So Chief Justice Roberts comments are valid to an extent but avoid the cultural history of the profession. Law was practiced for many thousands of years before the concept reached our shores. We did not design it or create it’s principals but we do pervert it to our efficient needs.
Philip A. Byler
Jul 8, 2011 6:42 AM CDT
As a general matter, Chief Justice John Roberts is correct. There are exceptions as to law school professors and law review articles; a good law review article or legal book is wonderful to have for insight into a legal subject. But much of what I have seen law professors write in law review articles and in books is worse than worthless.
Mary Frances Love
Jul 8, 2011 6:44 AM CDT
Chief Justice Roberts and I finally agree on something. Did a pig just fly by? Law professors are what’s wrong with recent law grads, too. I cringe when I have to interview a 2010 and 2011 grad. There are no jobs to be had and yet these kids are still arrogant.
Prof. Muriel Morisey
Jul 8, 2011 6:53 AM CDT
I’ve been on the Temple law faculty for 20 years. I endorse the view of those who point out that the Chief Justice engaged in a gross generalization that is also inaccurate. Some legal scholarship has enormous utility for courts and those in practice. Some is not intended to have readily identifiable practical utility, but to contribute to the law’s ability to accommodate thoughtful critiques of existing doctrine and adapt to new circumstances and new ideas. Some are specialty journals with tremendous value in subject areas like the environment, civil rights and international law. No one is obligated to read something they don’t find useful. No one in practice is obligated to read esoteric material if it will come at the cost of devoting the appropriate amount of time to their clients’ concerns and legal needs. Ultimately, I wonder why the Chief Justice thought his remarks were worthwhile, particularly since they didn’t demonstrate research and thoughtful reflection.
Jul 8, 2011 6:59 AM CDT
Pushkin’s post deserves careful reading. Most of the comments and the Chief’s remarks appear to misunderstand the purpose of and function fundamental research and scholarship. No physician reads reports on the intricacies of stem cell research as a means to improving her day-to-day practice. Nor should practicing lawyers expect to find many law review articles that will assist her in drafting a will or preparing for a deposition. That, after all, was never their purpose or function. But appellate attorneys and judges and legislators make use of the research and thought in law reviews routinely. More importantly, the work of the law review writers—like that of others doing fundamental research in any field—elevates the overall competence of the profession, whether a particular attorney ever reads a law review article.
As someone who spends much of my day reading scientific and scholarly articles from the social sciences, neuroscience, and other journals, I can attest that the level of scholarship in law reviews compares extremely well with that of other disciplines—something of which our profession should be proud. The Chief is off base here.
Jul 8, 2011 7:02 AM CDT
Much of what abajournal.com writes about – and we comment upon – concerns the state of the legal profession and the life of its lawyers, topics more humanistic in nature than practical “how-to” guides on practice topics. As such, law review articles on jurisprudence, the history of legal education, philosophical influences on the development of the law, moral ethics vs. legal ethics, etc., are highly relevant to practice today – indeed, they are essential in understanding and addressing our professional malaise. Of course, as others have noted, much of what passes for legal scholarship is poorly written, overly dense, and useless for any purpose. However, one can find clearly written, well-argued, and fascinating articles on interesting topics – yes, maybe even about Kant’s influence on the law – if one looks hard enough.
Jul 8, 2011 7:15 AM CDT
Pity you seem unable to distinguish between “principles”-the word you should have used- and “principals” the word you misused.
On the broader topic, over my four decades of practice I have noted my decreasing use of law review articles, not because they are useless, though some are, but because the publication delays renders them untimely. I regularly keep up with the articles posted online in SSRN where the dates of submissions and of revisions are given.
It also seems to me that the need for Increasing speed of access to comments etc. Has propelled blogs by law professors and practioners into the forefront of usefulness thus displacing law reviews. Coporate law postings by professors Bainbridge and Ribstein are always worth reading, as is ,for example, the Securities Law Professor blog,and the comments on Delaware cases by Wm Allen or by Leo Strine. Now I rest.
Jul 8, 2011 7:18 AM CDT
I obtained a Ph.D. in mechanical engineering 2 decades prior to attending law school. I am surprised at the widely-held opinion that a lawyer out of law school should be able to practice law. In engineering, it is widely understood that you learn the fundamentals of engineering and then learn your specialty on the job. There are so many unique areas that one could focus on that it is naive to think that your engineering undergraduate education could prepare you for your ultimate job. Instead, it provides a toolbox that you bring to bear on the job as you are guided by mentors in that specific field. I worked as a patent engineer and Patent Agent for 5 years before I went to law school. It was precisely for these fundamental principles that I attended law school. I explained it to engineering friends: one might learn how to design a heat exchanger without an engineering degree simply by working on the job, but one is not going to pick up the fundamentals of thermodynamics on the job. The same was true for me. I learned how to write and prosecute a patent application mostly by on-the-job training. But, I found myself frustrated in meetings with lawyers in which they spoke of fundamental legal concepts. Although they would try to explain it to me, my understanding was shallow having not read the underlying case law and essentially going through the rigors of law school. I am really quite taken aback by the nuts-and-bolts attitude of legal practitioners presented here. If a goal is for a law school graduate to to be able to practice out of the chute, then I recommend that law school be revamped to the engineering equivalent of technician training. One could have a 2-year program to specialize in Family Law and a 2-year program on Tax Law teaching one how to work through the practicalities of the legal system (appropriate documents, software tools, etc.). Forget the fundamentals and the broad understanding! My point is that you can learn the specifics of your field on the job, but not the fundamentals. That is the point of the educational system, i.e., push one to think beyond practicalities.
I will temper my comments by saying that I did not attend one of the more higher-ranked institutions for law school. Instead, I attended a school that does have a more balanced approach between theory and practical education, and gets penalized in rankings for that. Nevertheless, I may have a different view based on my feeling that I was exposed to enough of the fundamentals and theory to give me the appropriate background while also being exposed to practical law.
Jul 8, 2011 7:24 AM CDT
Interestingly, the comments here are mostly in agreement with the Chief Justice. That being said, it appears those in the academic world are out of touch with the profession.
While I would agree that theory and substance need to be a significant part of law school, it appears it is the only thing taught. Many race to make law school a 2.5 year experience by taking as many classes in a hurried fashion as they can. They learn about such theory that has no practical relevance to a practitioner. The hurried graduate can’t draft even the easiest Motion for an Extension of Time that is granted as a matter of right. I recall graduating in 2005 and after landing a job at a small firm wondering what I was supposed to do as a lawyer to advance a case. I had no idea and was blessed that the firm understood and was willing to teach what wasn’t taught at “law school”.
Instead of allowing the less than three year tenure at law school, the ABA and others should be looking to lengthen the experience so that there is some mandatory residency period to learn the profession. Imagine seeing a recent medical school graduate who has never touched a patient in the 4 years of medical school. They might know everything about the science, but if they can’t give an injection, they’re useless. Are you really comfortable being the guinea pig? Most law school grads spend their entire academic career in the hollowed brick and mortared halls and never speak to a client, never interview a witness, and never draft an appearance. Many law school professors have never practiced law. Schools will claim they have clinics, but only a minority of the students partake.
Rather than strengthening the profession, the ABA and law schools are softening the rules to increase the number being admitted. They are stuck in time in the belief that law school students will find jobs at Big Law where their practical training will take place. I believe to move forward, the ABA and law schools need to adopt a more practical approach to teaching law. It has to be theory coupled with practice. Only then would the Chief Justice’s practical and learned comments be rendered moot.
Jul 8, 2011 7:25 AM CDT
Re: Pierre #41
Apologies, my attention deficit is acute at 3 A.M.
Prof. Muriel Morisey
Jul 8, 2011 7:35 AM CDT
Many law schools do an excellent job of preparing students for practice. Temple, where I teach, and the University of Maryland, where Professor Ifill teaches, are examples. Some of this occurs in traditional classroom settings where professors bring the real world into the discussion of assigned cases. A great deal happens in clinicals where students get supervised experiences doing the things law practice will require. The overgeneralized assertion that law schools don’t combine theory and practice is refuted by even a cursory review of the course offerings of law schools, including the most prestigious ones. The question of legal scholarship’s utility is distinct from the question whether law schools prepare students to practice.
Jul 8, 2011 7:47 AM CDT
With all due respect Professor, I expected that response. I knew someone from the academic world would be unwilling to consider another approach, defending the status quo. There is no question that there is a distinct difference between the question of utility and practice. No one is arguing that.
I suggest the law schools need to model medical schools. Require that “residents” practice with a firm prior to being licensed. Until you do this, your classroom approach is not enough. I was in the law school clinic, I worked on a part of a single case. It didn’t prepare me for the profession in a semester’s time frame. That’s the underlying message here.
If you don’t want to hear the message it is ok. The majority here who are in practice, including myself, are suggesting that law school, even with the practical classes, did not prepare them for the profession. To balance the two, change must take place. In my opinion, the only way to do this is to lengthen the training with a mandatory residency.
Jul 8, 2011 7:53 AM CDT
Isn’t there room enough in legal scholarship for both? Is there some kind of page limit? If an article is read, well received, and cited, it has met its purpose. If not, perhaps it was less than helpful, or too esoteric, or simply not important. It doesn’t mean that it should never have been published. Not every novel is a Stenbeck.
Jul 8, 2011 7:53 AM CDT
or even a Steinbeck 😉
Jul 8, 2011 7:54 AM CDT
If law review articles did what their descriptor implies, review new developments in the law and synthesize them into implied rules, they would all be useful. But many are really just articles on philosophy, economics, statistics, politics, history, etc.
Jul 8, 2011 7:58 AM CDT
I used to be a law review articles editor in school, then a BigLaw associate, and now an in-house lawyer.
There is no doubt that scholarship in the law could be more relevant and focused. There is sometimes a drive to find some “new” topic that results in these inane articles that become trivial reads. When I was an articles editor, many times I had to question the point of the article when making a publication decision. When I was an associate, the best articles often were the student ones because they had the extensive footnotes that were a research goldmine. And now as in-house counsel I don’t have time to read many law review articles, I tend to rely on shorter pieces and if I do read one it’s usually a “hard” analysis of an issue that I am dealing with.
I’d prefer to see more focus on the things that matter rather than trying to find some interesting topic that lets the author come up with some pithy title.
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