Legal scholarship for judges.

Author:Wood, Diane P.


Long before Chief Justice John G. Roberts, Jr. startled the legal academy in ion by characterizing legal scholarship as something concerned with "the influence of Immanuel Kant on evidentiary approaches in eighteenth century Bulgaria or something," (1) I had worried from time to time about the focus, the utility, and the influence of the outpouring of written work that emanates each year from America's two hundred plus law schools. Legal scholarship, however, is not a monolith: it is produced by a great variety of writers, it is addressed to a number of distinct audiences, and it reflects a wide range of goals. I do not want to live in a world where there is no place for the scholar who specializes in Immanuel Kant, but at the same time, that scholar must recognize that a busy federal judge or Justice is quite unlikely to read a word she has written. Whether the latter fact is regrettable is one of the points that this Feature covers. Before doing so, however, it takes a broader look at the trends in legal scholarship over the twentieth and early twenty-first centuries. It then takes a more personal turn to address the ways in which I seem to be using legal scholarship. In short, there are some types of articles or books that I systematically push to the back of my desk and eventually discard; others I slum quickly to see if the author is making an interesting point; and a small number I read carefully, either for my own edification or to cite in an opinion.

In order to set the stage, I begin with a brief reminder of the two threads that make up our story: one concerns legal scholarship in the United States, beginning for convenience in the nineteenth century, and the other concerns legal education and the bar. This story shows that, in contrast to the general experience in Europe, we have always had at least two, and maybe three, parallel legal professions in the United States: the legal academy, the practitioners, and the judiciary. From the outside, these may seem to be all of a piece, but for insiders, there are sharp differences among them. Consider, for instance, the fact that one of the worst things a law school hiring committee might say about a candidate for a tenure-track position is that her written work "merely" reviews "what the law is" and is directed to a practitioner audience. By the same token, one withering criticism a young associate might receive from a senior partner about a draft memorandum or brief is that it is "too academic." There is a rift here, to be sure, and most state and federal judges probably fall on the practitioner side of that rift. That rift may account, in no small part, for the reception that the work of the legal academy receives among judges and practitioners.

After this quick look at the distinctive path legal scholarship has taken, I will jump forward to a look at what the Seventh Circuit has been doing with legal scholarship over the last several years. Others have conducted similar studies, (2) and so mine is intended only to add to the body of work that has already been done. There is one caveat, however, that must be acknowledged, even if it is hard to know what to do with it. Scholarship plays both a visible and an invisible role in judicial decision making. The visible role of scholarship is relatively easy to study: how many articles are cited in judicial opinions, and what type of article seems to have the greatest impact? The invisible role of scholarship--the ways in which scholarship introduces new ideas, helps to shift norms, and subtly affects the development of the law-is more difficult if not impossible to evaluate. The warning here relates to the way in which judicial opinions are produced in today's world (which for convenience we may date from the mid-1960s): who is writing the opinion drafts, who is including the citation to the article, and who actually read the article? If you are thinking that it might not have been the judge, you are correct. Law clerks write a very large number of first drafts, and they are the ones who propose citations to support the result in the opinion. Citations to the Constitution, to statutes, and to regulations are easy for the judge to check; so are citations to judicial opinions. But some citations to articles may appear without much judicial oversight (though this is certainly not inevitable-some judges furnish their own citations, and many, if not most, judges who do not write their own first drafts nonetheless review carefully whatever the law clerk has submitted). I have no proposal that would help scholars to distinguish between "real" citations to scholarship (that is, citations to articles that the judge herself read and found useful for resolving the problem at hand) and "filler" citations to scholarship. Nevertheless, the difference is there, and it means that the data should be treated with some caution.


    1. Academic Legal Scholarship

      The idea of a body of scholarship devoted to law came slowly to the United States. During the Colonial period, the Revolutionary period, and the early years under initially the Articles of Confederation and later the Constitution, law per se was not an academic subject. When Thomas Jefferson decided to read law, he studied the leading legal treatise of the time, Sir Edward Coke's Institutes, a four-volume (and reportedly tedious) treatise, along with Coke's Reports of leading cases. (3) He read these materials, along with Matthew Bacon's New Abridgement of the Law, under the tutelage of George Wythe, (4) and he was then ready to go to work. Such colleges and universities as there were during that period in the United States offered neither undergraduate nor graduate degrees in law. Not until 1793 did William & Mary College grant its first Bachelor of Law degree (an L.B.), (5) and not until 1817 did Harvard create the first systematic university-based law program, (6) under which the degree of L.L.B. was awarded. (7)

      Academic law as an independent subject was slow to catch on. Indeed, throughout the nineteenth century there was a debate that would sound familiar to modern ears: should universities offer essentially a vocational degree in law, alongside their more elevated subjects such as philosophy, mathematics, religion, and the study of ancient languages, or should universities treat law as part of liberal, philosophic, or scientific studies? (8) The prevailing view appears to have been the latter. As of 1900, most states did not require a university education to become a lawyer, and most practitioners had not attended either col- lege or law school. (9) It was, however, common for states to require an apprenticeship with a member of the bar as a condition to admission. (10) Old practices died slowly: Justice Robert H. Jackson, who sat on the U.S. Supreme Court from July 1941 through August 1954, was the last-appointed Justice never to have graduated from law school. (11) Even today, a handful of states permit people who have not completed law school to sit for the bar, although this is quite unusual and not likely to make a comeback. (12)

      Change in legal education, however, was on the way. In 1870, Christopher Columbus Langdell was appointed to be dean of the then-three-person faculty of the Harvard Law School. (13) That same year, he inaugurated the case method of teaching, and one is tempted to say that the rest has been history. Langdell, however, was distinctive less for his theories of law than for his pedagogy. Like most professors in the nineteenth century, he believed that there were certain rules of law, and that these rules could and should be learned by students. He merely thought that law, like other "sciences," was better taught through the use of primary materials than through lectures.

      The real radical to come along was Oliver Wendell Holmes, Jr., who published The Common Law in 1881 and launched the movement that later became known as Legal Realism. Holmes famously began his book with the observation that "[t]he life of the law has not been logic: it has been experience." (14) He meant not just that the life of the law was not logic; it also was not science, or God-given natural rules, or reason. This became clear when, in his lecture The Path of the Law, he argued that there is no basis in reason, or science, or other external sources, for deciding what the proper rule of law is for any given situation. (15) Try as one might, it is impossible to delete the element of human judgment and reasoning from the articulation of legal rules.

      Writing as he did during a time when science was challenging the most fundamental assumptions, Holmes may simply have been to law what other giants were to other fields. (16) Charles Darwin had published The Origin of Species in 1859; (17) Louis Pasteur disproved the theory of spontaneous generation in 18 62; (18) in the last decades of the nineteenth century, Thomas Edison revolutionized electric light, sound recordings, and motion pictures; (19) Guglielmo Marconi invented wireless telegraphy in the 1890s; (20) and at the same time Marie and Pierre Curie discovered and named radioactivity. (21) It would have been surprising if law had not in some manner reflected the same creativity, innovativeness, and humanistic spirit.

      For law, however, there were institutional consequences implicit in the idea that law is a human creation and that judges in particular have a role in its development. The Framers of the United States Constitution had adopted a government in which basic powers were separated, subject to carefully drawn checks and balances. The simplistic theory has the legislative branch...

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