Monday, September 10, 2012

"The Helpful Scholarship Project" and the Legal Historian

The ever-inventive Ross Davies, George Mason Law, has started a website, The Helpful Scholarship Project, that invites tenured professors at American law schools to recommend scholarship to the U.S. Supreme Court that speaks to a case on the term’s docket.  He explains the enterprise here.  Briefly, it is a response to two justices’ laments about their encounters with legal scholarship.  The first is Chief Justice Roberts’s off-the-cuff remark at the Fourth Circuit’s annual conference:
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.

1 comment:

Dean C. Rowan said...

Since you asked, a law librarian here, and I'm prepared somewhat to address this from my professional standpoint, but also to go off on a tangent, because that's what blogs invite. Law librarians indeed have been actively seeking ways to "bridge the gap" dividing the research skills of new law students and attorneys from the needs of their employers and clients. In effect, we strive to improve new lawyers' understanding of legal bibliography--its varieties of sources, formats, sub-disciplines, and functions--with the goal of effecting an improvement in their performance as lawyers. In this respect, we frequently recommend ways to identify the most "helpful" resources, academic or professional, to bring to a research problem. For practical reasons, we spend much less energy worrying about how to make legal literature more useful to the judiciary. We interact with relatively few judges, but with lots of attorneys and prospective attorneys.

But I wonder what Davies means by "helpful"? Helpful to do what? Analyze doctrine? Identify relevant cases? Glean data? Analyze and synthesize those data? Understand the historical background of an issue so as to fathom legislative intent? In this latter regard, while reading the post and Davies' writings I kept thinking of a trio of SCOTUS cases involving the availability of equitable remedies in ERISA suits. Following the last of the three cases, John Langbein published an article seriously critical of the Court's mistaken rulings. Did it "help" the Court thereafter? Yes and no. In an ERISA case decided the year after the publication of Langbein's article, Justice Ginsburg cited the article in a reluctant concurrence. She was hopeful that it had identified a way to fill the "regulatory vacuum" that had perenially denied relief to claimants. It would be helpful if the Helpful Scholarship Project permitted the recommender to identify in what ways the recommended work could be helpful. Who knows? If somebody had explained to Chief Justice Roberts why Kant on evidence in the Balkans mattered, that hypothetical lead article might have garnered a SCOTUS citation!

I tend toward the unintended consequences side of the ledger. Scholarship works in mysterious ways, and I, like Justice Scalia (the target, by the way, of much of Langbein's critique) and Chief Justice Roberts, neither of whom I tend to agree with much of the time, would resist too hard a sell. But I'm all for the prospect of having ready to hand a forum for recommended scholarship of high relevance to current disputes.