Following the thoughtful posts of my colleagues Steve Wasby and Todd Peppers, I thought I would discuss why it is important that law clerks speak to us about their experiences and why they should not be afraid of violating “confidentiality.” Because we are having this discussion on the Empirical Legal Studies blog, I think notice should be taken of the difference between journalistic accounts of clerks and courts such as Bob Woodward and Scott Armstrong’s The Brethren and empirical law and courts research such as Peppers’ Courtiers of the Marble Palace and why it is important for clerks to make an effort to work with those of us in the scholarly community.
A little over a year ago, I got a phone call from a film company in Hollywood. The first question the Hollywood executive asked me was, “Who is your agent?” Of course I don’t have an agent, nor have I ever received a call from a movie studio. I soon found out that the company was in the process of developing a big-budget Hollywood blockbuster on Supreme Court law clerks. They found out that I was writing on clerks and wanted to get together to discuss their project. I am from Los Angeles and was going to be home for the Holidays visiting my family anyway, so I thought it would be fun to “take a meeting” on the Universal Studios back lot to see the Hollywood game up close. With my all-access pass to the place I had only previously visited via a tram-ride past a mechanical shark, the house from “Psycho,” and the town square from “Back to the Future,” I drove my car past the bungalows occupied by Steven Spielberg’s Amblin Entertainment, pulled into my guest parking space next to the one marked, “Reserved: Jill Hennessey” and proceeded to the bungalow of the film company that was going to make the big law clerk blockbuster to end all blockbusters.
As I waited on the couch of the little cottage for the meeting to begin, the place was abuzz with talk of Leo DiCaprio signing on for a project and Director Michael Mann possibly available for another. The fruit baskets, gift bags, and other promotional junk littered the floor, desks, and file cabinets. Hollywood wannabes and hangers on were scurrying about answering phones, running errands, and generally taking themselves way too seriously. “Can I get you a mineral water? It will only be a few more minutes.” Seeing all this nonsense and superficiality I immediately remembered why I changed my major from Film to Political Science!
Soon I met one-on-one with the powerful Hollywood executive to discuss their project and my book. I explained that I was a political scientist and that my project was a scholarly treatment of the clerking institution. I explained that the differences between scholarship and storytelling. I said that while there might be some “stories” in the book, they were nothing more than examples to illuminate the data. She was not impressed. She told me that they had optioned the 2004 Vanity Faire article on clerks by David Margolick, Evgenia Peretz and Michael Shnayerson and signed former Blackmun clerk, and author of Closed Chambers, Edward Lazarus to be the film’s expert consultant. It was not hard to imagine Lazarus on the set with Sean Penn and Nicole Kidman. Indeed, it probably would not look too different from the other night when I turned to Comedy Central and saw Lazarus on a show that follows puppets making prank-phone calls. Don’t get me wrong; it’s not that I am critical of Lazarus so much that I am terribly jealous and bitter. I hustled out of the meeting, asked Jill Hennessy out for lunch, and then returned to campus. I checked my messages. The Hollywood executive’s assistant had called, “We will be back in touch after Sundance.” Needless to say, my phone never rang.
The point here -- yes I actually have one -- is that there is a world of difference between popular portrayals of clerks such as those in newspaper articles, magazines, popular books, and films and scholarly treatments by academics trained in empirical research methods. Woodward, Lazarus, Vanity Faire, and Universal bear little if any relationship to Wasby, Peppers, political science and university presses. This distinction is something that clerks should take to heart. It is understandable that clerks may have legitimate concerns about confidentiality. Sure journalists can guarantee anonymity and corroboration by at least two sources as a form of protection. Yet academics go much further in the way that they “protect” those who supply data. Our research is “large-N” meaning we make every effort to study as many cases as possible in order to be able to generalize about the population. We are systematic in the way that we analyze data, looking for categories and patterns to aid in understanding and explanation. Our work is peer-reviewed by experts before it is printed.
Whatever one may think of The Brethren and Closed Chambers one thing is certain. Those books are journalism and our research is scholarship. They are journalists and we are academics. They are beholden to news imperatives such as scooping the competition and making profits. We are trained in research methodology, publish our findings in academic journals and scholarly presses, and will NEVER be rich. We are not out to expose, damage, or destroy any person or institution. We want to study, illuminate, explain, teach, and perhaps help to improve.
However, this is not to say that there should be a disconnect between the scholarly community and the world of practical policy making. As a former staffer on the House Judiciary Committee, I am under no illusions about the ability of scholarly research to influence public policy -- it doesn’t -- unless of course it happens to bolster a partisan argument for amassing power or punishing the opposition. Nevertheless I still think it is important for scholars to not only explain how law and courts work, but also to offer suggestions for improvement. Law clerks can and should talk to legitimate scholars for we care as they do about understanding, explaining, and improving the American form of government. Academia may not pay as well as Hollywood, but not having to deal with the pressures of reality TV producers and botox injections surely makes up for it . . . gotta run for now, my agent is calling.