There is a great disconnect between the academy and the profession. Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in eighteenth-century Bulgaria, or something, which I am sure was of great interest to the academic that wrote it, but isn’t of much help to the bar. . . . [I]f the academy is interested in having an influence on the practice of law and the development of law, that they would be wise to sort of stop and think, is this area of research going to be of help to anyone other than other academics. You know, it’s their business, but people ask me, what the last law review article I read was, and I have to think very hard before I come up with one.(Historians of Bulgarian evidence law, unite here!)
The other is a passage, by Justice Scalia and a coauthor, in Making Your Case (2008), 104-05:
An increasingly popular category of amicus brief is the academic brief – “Brief on Behalf of Legal Historians,” or “Brief on Behalf of Professors of Securities Law.” These are usually drafted by a few professors and then circulated from law faculty to law faculty, seeking professorial sign-ups. Advocacy and scholarship do not go well together, which is why many academics never lend their names to professorial amicus briefs. Some judges, however, may give these filings undue weight. An easy way to cut them down to size is to run a literature check under the names of the signatories. You’ll often find that most of them have produced no scholarly publication on the point in question or sometimes even in the field at issue. Point this out to the court. And if it is so, point out that some academic publications (by professors who remain, perhaps, too immersed in their scholarship to hustle up an advocacy brief) favor your side of the case. If the academic brief seems particularly damaging, you might take the trouble to check the scholarly writings of the signatories; some professors have been know (O tempora, O mores!) to join a brief that flatly contradicts their own writings. By noting this, you’ll help both the court and the academy.Davies’s thought was that the law professors ought to identify scholarship that they believe would help the justices decide their cases and to do so through a medium that is less likely than an amicus brief to be influenced by the facts of a particular case.
Well, I imagine that some of us might want to argue against the assumptions underpinning the Chief Justice's and Justice Scalia’s laments and to reject Davies’s advice that scholars go some way in meeting judicial notions of useful and unbiased scholarship. Even when I go this far with the project, however, I still have some questions about it and its intended end. First, I wonder how many works it would turn up that didn’t already appear in a historians’ brief. Even a justice who mistrusted the politics of a brief might still rely on its references. Second, will the justices really think scholarship in the journals is less biased than scholarship in a brief, particularly when so much of it is published without formal peer review? I can imagine them exclaiming O tempora, O mores! as readily after reading a law review article as an amicus brief. Third, what will the justices do with recommendations that don’t directly address the meaning of whatever text is at issue in a case but a larger historical context? Consider, for example, the temporary takings case on the Court’s docket, Arkansas Game and Fish Commission v. United States (11-597). The justices might readily concede the relevance of, say, William Treanor’s writings on the Takings Clause (e.g., here) or a study of Pumpelly v. Green Bay Co., 80 U.S. 166 (1871), but what would they do with the recommendation that they make time to read and reflect on Gregory Alexander’s Commodity & Propriety (1997) or Stuart Banner’s American Property (2011)?
A fourth matter is a problem that Davies himself has identified and on which he seeks advice. Venturing no further than LHB, one can find many amicus briefs by historians tenured outside the law schools. (E.g., here and here.) Should they submit to the same or a different site? Finally, I wonder what law librarians think of the enterprise, as I imagine that some, at least, have been trying to perform this bridging function between the academe and the profession and judiciary for some time.
All that said, “The Helpful Scholarship Project” might well be worth a try, if only because of its possible unintended consequences. Would it help legal journalists find a wider range of relevant works and legal experts? Would it assist teachers and students in courses organized around the Supreme Court’s docket? Would it become a reading list for book clubs of compulsive Court watchers? (In the future, every law professor will be Oprah for fifteen minutes.)
Comments welcome.
