Are Law Reviews Irrelevant? A Partial Reply to Adam Liptak

New York Times lawyer/reporter Adam Liptak's recent "sidebar" article in the Times ("When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant", New York Times, Monday March 19, 2007, A8 (click to read if you have Times Select privileges), develops the theme that judges today do not rely on legal scholarship published in law reviews, at least not nearly as much as they did in the 1970s. This observation, supported by judicial self report, a "new report by the staff of the Cardozo Law Review," and confirmed by a number of law professors who spoke to Liptak, gets chiefly anchored to the fact that "law reviews have certainly become more obscure in recent decades," and the fact that "many law professors seem to think that they are under no obligation to say something useful or to say anything well." It is this linkage, and the ill-disguised slap at the legal academy for being interdisciplinary and less normative, rather than the apparent gap opening up between the judiciary and the legal professoriat that provokes this jurisprude.

If obscurantism is a read only to mean needlessly jargon ridden articles, I have little trouble joining the view (and must confess to have fallen prey to that malady myself). But the discursive instability introduced into legal scholarship by the break down of the intellectual autonomy of law schools from the rest of the university is also vulnerable to the charge of obscurantism. The question which must be asked of any particular piece of scholarship is whether its challenges to the reader come from exposing that reader to information or perspectives generally filtered out by the formal processes of law or whether it comes from diversion into equally formal processes of theory.

More important still is the question of who legal scholarship must be useful for to count as legitimate in Liptak's scale or our own. Even if one accepts that the legal system as a whole should receive the lion's share of legal academic attention, it should not be presumed without argument that courts should be the primary recipients of that knowledge instead of presidents, administrative agencies, law makers, let alone, clients, businesses, social movements, etc.

Finally, Liptak's provocative article provides little opportunity to reflect on how a changing judiciary might alter the relevance of legal scholarship. Did judges in the 1970s cite law reviews more often because they were looking for authority to innovate which necessarily would be unlikely to reside in existing case law, while judges in the 1990s ignored them because they didn't need any academic authority to adopt defensive and deferential positions toward power holders? Or, as observations placed at the end of the article might suggest, have changes in the technologies of dissemination and the discursive practices of legal knowledge producers made law reviews, an institution basically formed in the 19th century and widely spread in the 1920s a less dominant medium? Indeed, many courts now rely on empirical research published in non-law review journals and books.

None of this should be taken as a refusal of the mandate that legal academics worry about the currency of their scholarly products. Those of us who believe that governance and law making today demands serious engagement with empirical and normative scholarship, being produced in many different disciplines and in interdisciplinary contexts, have a duty to make sure that as writers we make this work as accessible as our craft will make possible and to create a pedagogy for lawyers that will make it possible for them to access and use this knowledge.

Murder and the City

As the Bay Area is being cinematically haunted by the ghosts of serial killers past (Zodiac, the movie based on the 1960s SF serial killer, was released March 2), a more recent local murder presents in alarming and moving terms why homicide, above all other crimes, can be so rattling to a community's fundamental sense of security. [read the SF Chron story by Henry K. lee and Matthai Cahkko Kuruvila].

In October of 2006, Alia Ansari, a Fremont, California mother of 6, was murdered in broad daylight, with a shot to the head by a man who according to witnesses jumped out of a car and committed the crime without further words or deeds. The murder occurred in front of her three year old, as they walked along a public street to pick up two other children from a nearby elementary school. An hour after the killing police arrested Manual Urango, 28 also of Fremont. His car matched the description of the killer's. Urango, as it happened, was on parole, a fact which permitted the police to hold him as a parole violator. It was four months later that charges were filed of murder and being a felon in possession of a weapon. The latter has become one of the most common ways to sentence a person with a past conviction to a long new prison term without having to prove anything more than they possessed a proscribed weapon (a firearm counts). Prosecutors reported that the chemical tests of Urango's hands showed gun-shot residue.

The nature of the killing, the way it was carried out, the vulnerability of the victim (walking with a three year old) and the lack of any apparent relationship to her killer would all combine to make a homicide of this kind inherently more disturbing to the community then most. We often speak of fear of crime in the abstract, but it is a much more local and specific experience (what anthropologists might call territorialized"). In the US over the past four decades it has been a fear of death by fire arm while on a city street that has been the real focus of fear of crime. The great crime decline of the 1990s (read Frank Zimring's masterful new book on that topic) seemed to be beginning to disinvest city streets with that particular fear, making the prospect of easy walks to exciting commercial districts and public transportation more attractive to the middle class (grown savvy about the disappointments of gated suburban life) than in decades. But the real and substantial declines of the 1990s do not assure a continuation of the peace (as Oakland and Richmond have both experienced in the past year). Each individual murder, especially one with the features of this case, can recharge this very potent link in the minds of the public, the media, and political leaders, between murder and the city.

The murder of Alia Ansari was particularly frightening in the post-9/11 context (especially to the numerous members of that East Bay community who are of Afghani background). Ms. Ansari was wearing a scarf or hijab typical of observant Muslim women leading to speculation by family members that the homicide was a hate crime directed against Muslims.

As every homicide does, the murder of Alia Ansari left a devastating wound in the lives of her family. Much of Alia Ansari's East Bay family, including her husband and her six children have returned, at least temporarily, to Afghanistan, to bury the victim in her native land, but her brother Hamoyon Ansari spoke with deep emotion during his interview with the Chronicle reporters. No figure has become more central to our contemporary imagination of violent crime than that of the aggrieved relatives of a murder victim speaking emotionally, often demanding harsh justice in the name of their loved one. But while communicating deepest grief, Hamoyon Ansari expressed a striking absence of anger. Responding the the news that Manual Urango had been charged with the murder, Mr. Ansari spoke of relief but also caution:

"as long as it's the right person, and he's not going to harm someone, I'm really, really pleased"..."I don't want another sister -- I don't care what race or religion she is -- I don't want that to happen to another woman on the road..."

The defendant presented himself in court as the experienced felon his record would seem to suggest, with court records showing convictions for hit-and-run, being a felon in possession of a gun, evading police, auto theft, drug possession and grand theft since 2000. During his arraignment in Superior Court, the defendant was described as calm and polite. A tatoo on his face reading "no remorse" was visible above his temple. One wonders how jurors can avoid drawing conclusions about his propensity to commit such a crime or his future dangerousness regardless of whether he ever takes the witness stand.

The case could take a year or even more to come to trial. In the meantime Urango is certain to remain in jail (or back state prison on his parole violation). It will likely be some time before we learn what evidence the state has against Urango. He drove a car that met the description given by some witnesses. He was also seen by a witness shooting a weapon into the air in the same vicinity the day before (could these events have become merged in the minds of witnesses?). As a parolee with many past convictions, Urango is a perfect target for prosecution. His parole status makes it easy to hold him without evidence of a new crime (technical violations are ever present). His record and his demeanor (he yawned during the arraignment) are likely to hang him with a jury. It is a case where police and prosecutors feel enormous pressure to bring someone to justice and they have found a convictable target. It is a case where the risks of a wrongful conviction are tragically intertwined with the wounds of an especially terrible crime. As Hamoyon Ansari said: "as long as its the right person."