Paul Caron links to a devastating (and devastatingly funny) article in the New York Lawyer, entitled "Federal Judges Discuss Law Reviews Usefulness." Paul excerpted some the sharpest lines:
Kicking off a recent friendly-but-frank discussion about the relevance of contemporary law review articles, Dean David Rudenstine of the Benjamin N. Cardozo School of Law offered one description: "useless blather puffed up with self-indulgence" ...
Judge Sack returned to the not-so-funny problem under consideration: today's highly theoretical articles are largely ignored and seldom cited by judges, a dramatic turnabout from a generation ago when the mostly practical content of law reviews was a significant element of judicial decision-making. Judge Sack was sorry to say that the bench now uses law reviews "like drunkards use lampposts, more for support than for illumination." ...
"If the academy wants to change the world, it must decide if it wants to be a part of the world." ...
Although Judge Sotomayor agreed that brainy law professors should not trouble themselves by contemplating reactions from the bench to their writings, she leveled a sharp gaze at the Cardozo Law faculty and declared, "If you think that judges are not as capable of creative thought as you are, I beg to differ." She added, "My question to academics: do you really think you're serving some function to someone?"
Wow, that is some really straight talk. For the record, law reviews had a sketchy record 40 years ago, see Lowell J. Noteboom & Timothy B. Walker, The Law Review–Is it meeting the needs of the Legal Community?, 44 Denver L. J. 426 (1967).
Nonetheless, I think this passage really hits homes because I just finished reading the Carnegie report, Educating Lawyers. While the tone of the book is quite philosophical and diplomatic (in fact, I think it is too diplomatic), there are several passages that suggest quite serious structure problems to reform or even improvement. Taken together, I really do think we have some soul searching to do; I will blog a more comprehensive review on the Carnegie report later.
I do think that ELS does (or can, if we ELS scholars are willing to think beyond the next paper) pass the relevance and social value test. ELS can be the basis for better policy, better legal reform, better decision-making by judges and lawyers, and a platform for engaging with the larger university community and building knowledge. But to effectively leverage this work, we need to be able to communicate its practical implications to judges, lawyers, and students. This is a institutional issue that either gets addressed by ELS scholars, or we are just laboring for ourselves.
If they admitted that they use precedent in the same way, that would have been some really straight talk.
Posted by: Donald Braman | 21 March 2007 at 10:55 PM