In praise of law books and law reviews (and jargon-filled academic writing).

• Author: Sunstein, Cass R.
• Position: FOREWORD

Many people, including many lawyers and judges, disparage law reviews and the books that sometimes result from them on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon, including excessively academic and impenetrable writing. Some of the objections are warranted, but at their best, law books and law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality.

What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem. Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be "common sense."

INTRODUCTION

When I served in the federal government during the first term of the Obama administration, some of my colleagues who had recently been academics wondered, with something like despair, how they could ever return to academic life. They asked: "After this, what could possibly be the point of going back to write academic articles?" When I asked them to elaborate, one of them sent me this quotation from Theodore Roosevelt:

It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat. (1) It is a powerful passage, and it can easily be enlisted against those who write law books or for law reviews. Wherever they are, academics are not in the arena. Their faces are never marred by dust, sweat, or blood. (If so, they are in the wrong profession.) They do not really know either victory or defeat. (Having an article accepted or rejected doesn't really count, nor does a citation or two from the Supreme Court.) Few people may read what they write, no matter how much they obsess over the title, abstract, or concluding paragraphs.

In their academic books and essays, professors and students spend a lot time pointing out, sometimes with sadness, sometimes with outrage, "where the doer of deeds could have done them better." In one sense, they may know the triumph of high achievement (their work might be superb), but insofar as they write academic books and law review articles, they cannot be said to "strive to do the deeds." Writing an abstract, or finishing footnotes, are deeds--but hardly "the deeds."

As one of my White House colleagues asked another, who announced that he would return to the university after just one year of public service: "So you're going to go back, and do your . . . 'studies' "?

But there is a countervailing argument, and it comes from John Maynard Keynes:

[T]he ideas of economists and political philosophers, both when they are right and when they are wrong, are more powerful than is commonly understood. Indeed the world is ruled by little else. Practical men, who believe themselves to be quite exempt from any intellectual influences, are usually the slaves of some defunct economist. (2) Keynes's claim seems to one-up Theodore Roosevelt's. It's the ultimate revenge of the nerds. Those "men in the arena"? They're slaves of the theorists. Those who do the deeds? They're marching to the beat of someone else's drum. The drummer, it turns out, is an economist or political philosopher (or perhaps an academic lawyer). In the end, it's the critic who counts. From the sidelines, he calls the tune.

Maybe Keynes is right. But his argument is not only unbecomingly self-serving; it is also very far from self-evidently correct. Is he really claiming that ideas rule the world? Keynes himself had a lot of extraordinarily influential ideas, and so in his own case, that claim has a degree of truth. But are practical men--Theodore Roosevelt, Ronald Reagan, Barack Obama--really best seen as slaves of defunct economists? And if so, are lawyers and judges slaves of defunct law professors? And what does "defunct" mean, exactly? Might today's lawyers and judges be acting under the influence of theorists whose ideas are outmoded? Are they marching to the beat of academic drummers from the 1950s and 1960s? Do books and law review articles create the music to which the legal profession is marching--even if most lawyers never read those books and articles?

In my view, Keynes wrote far too confidently about the role of intellectual influences. Practical people might well be operating in accordance not with theory but with some version of "common sense," (3) perhaps traceable to intellectuals and theorists, but more likely a product of the intensely pragmatic judgments of colleagues, friends and family members, and (maybe above all) relevant cultural influences: religious organizations, labor unions, public interest groups, political parties, and movies and television too. Common sense emerges from the interactions of numerous people, extending over time, and it creates the relevant music.

But Keynes certainly had a point. Common sense can be affected by academic influences, and teachers certainly matter. In constitutional law, for example, originalism might be seen either as a terrible betrayal of common sense or instead as the thing itself. And while purely political considerations surely matter (has an originalist been appointed to the Supreme Court? (4), academic work can help determine whether originalism is taken to fall in one category or the other. In public policy, it might seem self-evidently true that significant increases in the minimum wage would increase unemployment, or self-evidently true that they would not. Academic work helps determine which view counts as common sense.

Do law books enslave practical men? Do law reviews? If academics have the opportunity to serve in the White House, should they return to academic life not with despair and a little shame, but with enthusiasm and energy?

1. SEVEN BOOKS

   Here is a random (and admittedly personal) list of seven of the best law books from recent years: Living Originalism, by Jack Balkin; (5) The Constitution of Risk, by Adrian Vermeule; (6) Creating the Administrative Constitution, by Jerry Mashaw; (7) Fairness Versus Welfare, by Louis Kaplow and Steven Shavell; (8) Retaking Rationality, by Richard Revesz and Michael Livermore; (9) The Failed Promise of Originalism, by Frank Cross; (10) and Well-Being and Fair Distribution, by Matthew Adler. (11) Anyone who reads these books is going to learn a lot--about constitutional law, about history, about economics, about judicial behavior, about philosophy.

   It's a diverse group. But nearly all of them--and depending on how you count, perhaps every one--grew out of one or more law review articles. For example, Living Originalism develops an argument Balkin made in a series of academic essays. (12) Mashaw's book can be seen as a compilation of superb and provocative historical essays, all published in the Yale Law Journal. (13) Kaplow and Shavell first ventured their central argument in the pages of a law review. (14) There is nothing odd here. It is far from unusual--in fact, it seems to be standard--for law professors to publish books that draw heavily from earlier publications in law reviews. To be sure, some law books are written from scratch, but many of them expand on, or do little more than compile, claims that were originally made or developed in academic journals.

   In my view, all of these books are terrific, and the same is true of the articles that preceded them. As we shall see, that claim has...