Monday, March 19, 2007

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.


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