THE PAST AND FUTURE OF PROCEDURE SCHOLARSHIP.

• Author: Pfander, James E.

INTRODUCTION 2552 I. SCHOLARSHIP AND LAW REFORM 2554 II. THE EMPIRICAL TURN IN LEGAL SCHOLARSHIP 2559 A. Empirics at Northwestern 2561 B. Empirics and Procedure 2566 III. THE FUTURE OF EMPIRICAL PROCEDURE SCHOLARSHIP 2569 A. Burbank and Farhang on the Political Economy of Procedure 2570 B. The New Procedural Empiricism 2572 C. Integrating Law and Discipline-Based Scholarship 2575 D. The Market for Legal Scholarship 2576 CONCLUSION 2580 INTRODUCTION

Ever since law found a home in the nineteenth-century university, law professors have struggled to make scholarly contributions to knowledge from inside the discursive tradition of legal practice. Dean Langdell, under pressure to deliver a form of legal science to match the other sciences on offer in Harvard yard, eventually landed on the case as the unit of analysis. (1) Today, the case method remains alive as a pedagogical device, but legal realism has widened the gap between the academic profession and daily practice of law. Chief Justice John Roberts could hardly contain his dismay at the suggestion that the Court should consider political science data ("sociological gobbledygook") in the course of deciding whether one political party had gone too far in gerrymandering Wisconsin's voting districts. (2)

The Chief Justice's dismissal of academic law represents only the latest in a series of laments from bench and bar about the declining relevance of legal scholarship. Inspired by somewhat the same dismay, Judge Harry Edwards (a former law professor) published a much-discussed criticism of academic law that touched a nerve in the 1990s. (3) Some years earlier, Thomas Bergin had chronicled the professional challenges facing law professors who were obliged both to train future lawyers and contribute to legal knowledge. (4) Other lapsed academics, too, have recognized the growing gap between legal scholarship and legal doctrine. Judge Richard Posner described the decline of law as an autonomous discipline, imagining a future in which more law professors would operate from within such academic disciplines as economics and political science. (5)

Just before the law-and-economics revolution that Posner helped to initiate, Geoffrey Hazard wrote a piercing monograph on scholarship in the field of procedure. (6) In it, Hazard set the terms of debate over what counts as valuable in the scholarship of adjective law, cataloging a variety of different approaches and commenting trenchantly on their contributions and shortcomings. (7) Hazard wrote from inside the law school and understood the impact of the profession's workways on the production of serious scholarship. (8) He worried, even then, that law professors concerned themselves with having written something rather than having said something. (9)

Writing in the hope of saying something in honor of consummate proceduralist Stephen Burbank, I'm delighted to take this opportunity to reflect on the past and future of procedure scholarship. As Hazard observed, and as Burbank has modeled in a storied career that one can only hope will continue for years to come, procedural scholarship begins with a complete command of the subject. Such command often requires an understanding of the historical origin and current operation of legal doctrines: Hazard journeyed deeply into the past to uncover what it means to be a party to litigation just as Burbank has spent countless hours in the archives, uncovering federal procedure's origin story. (10) But the best such scholarship must also speak to the problems we face today. It must, in Hazard's words, be "[t]ruthful, aesthetically pleasing,... responsible and open with normative and policy judgments" and it must make a "contribution to the literature." (11) Some might say that scholarship must sing.

How to make that contribution remains the central question for procedure scholars, especially those writing in the shadow of such figures as Hazard and Burbank. Hazard identifies four problems that scholars in procedure should consider: the uses of history, the tendency toward an emphasis on legal reform, the role of empirical research, and the contributions of procedural theory. (12) That list of considerations will inform, and help to organize, my approach here. I will begin as I often do with a page of history, one offered to illuminate both the value of deep learning in procedure and the possibility that the best scholarship can make normative arguments that improve the law. Then I will tackle the important and growing divide between doctrinal and empirical scholarship and its impact on law school hiring priorities and research outcomes. Theory may help explain why doctrine continues to play so important a role in public law. The essay concludes with a reflection on the possibility of a future in which procedure scholars combine the legal and normative sophistication of the law professor with the empirical tools of a social scientist. Much the way Steve Burbank has been doing right along.

1. SCHOLARSHIP AND LAW REFORM

   Few legal scholars can claim to have left a decisive mark on the evolution of the law. Edwin Borchard left four such marks: on international law, on the problem of wrongful convictions, on government suability in tort, and, most central to this account, on the declaratory judgment. (13) Indeed, it's perhaps not too much to say that we owe the modern recognition and acceptance of the declaratory judgment to Borchard's tireless work on behalf of the remedy. (14) He wrote a series of articles and books on the topic, drafted both a uniform law for state adoption and the federal declaratory judgment act statute, and defended the constitutionality of the proceeding against challenges based on a restrictive conception of the Article III case-or-controversy requirement. (15) One can only nod in agreement with sentiments expressed by his colleague at Yale Law School, Charles Clark. Clark described Borchard's work on the declaratory judgment as "the greatest one-man job of legal reform to occur in this country." (16)

   Born in 1884, Borchard was educated in New York City just as the nineteenth century was giving way to the twentieth and waves of populism and progressivism were rolling across the nation. Instinctively liberal, in a left-of-center sense, Borchard graduated from New York Law School in 1905, and then completed his BA and Ph.D at Columbia. After stints in Washington, D.C. as the librarian of Congress and a solicitor in the Department of State, Borchard returned briefly to New York as a bank lawyer before accepting a professorship at Yale in 1917. Borchard would remain in that position for thirty-three years, retiring just before his death in 1951.

   Borchard's work on the declaratory judgment reflected deep learning in civil law. (17) The civilians had long since recognized the value of a declaratory proceeding, one that allows the parties to secure a definite statement of their legal relations as a way to order their affairs. (18) But as Borchard recognized, the common law tradition tended to emphasize the "wrong" as a central element of the events that gave rise to a right to pursue a claim in the courts. (19) Declaratory judgments in their most important sense operated to allow suit to proceed in the absence of any consummated wrong:

   The distinctive feature of this second group [of declaratory proceedings] is that no "injury" or "wrong" need have been actually committed or threatened in order to enable the plaintiff to invoke the judicial process; he need merely show that some legal interest or right of his has been placed in jeopardy.... (20) Rejecting the idea that a right of action arose only as a form of redress for completed wrongs, Borchard saw a role for courts in providing a definitive statement of legal relations after a cloud had been cast upon one party's perceived legal entitlements.

   Under Borchard's influence, state legislatures and courts came to accept the declaratory judgment as an indispensable form of relief. For example, Borchard wrote critically of an early Michigan court decision that had characterized declaratory relief as inconsistent with the judicial role and then applauded later decisions in which the same court reversed course. (21) After several years of state experience, the federal statute was signed into law in 1934, under Borchard's tutelage, and was promptly incorporated into federal practice in the Federal Rules of Civil Procedure. (22) Rule 57 set forth general guidelines for practice in applications for declaratory relief, clarifying that the right to trial by jury would govern in appropriate circumstances. (23) The accompanying committee note made extensive references to declaratory practice in the state courts and went so far as to suggest that Borchard's own Uniform Declaratory Judgment Act was to provide a "guide to the scope and function of the federal act." (24)

   Yet Borchard still had to defend the declaratory judgment from the argument that it entailed an unconstitutional exercise of judicial power. Applying what had come to be known as the case-or-controversy requirement, federal courts had come increasingly to insist that their role was limited to the resolution of concrete disputes between adverse parties. (25) An influential summary of these emerging doctrines, many of them rooted in claims about the nature of the judicial power, appeared in Justice Brandeis's well-known opinion in Ashwander v. Tennessee Valley Authority. (26) Brandeis included on his list of concerns both the standing doctrine and the prohibition against the adjudication of collusive or non-adversarial suits:

   The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions 'is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a...