Working Paper No. 12-29:
In Search of Helpful Legal Scholarship, Part 1
Date Posted: March 2012
Abstract (below) | Full text (most recent) on SSRN
Like reform and ambiguity and symmetry and many other things, relevance often is in the eye of the beholder. Chief Justice John Roberts may have been trying to remind scholars of that when he recently said, “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. . . .” Not everyone got the joke, or liked it. But the joke was also serious – it was a challenge to the academy to be more helpful to judges and members of the practicing bar. The academy should take Roberts at his word, and direct his Court’s attention to helpful scholarship. Professor Sherrilyn Ifill took a step in that direction, in a blog post responding to Roberts’s Kantian-Bulgarian-evidence joke. She made a good start, but something more systematic is called for if the Justices are to receive (1) a steady supply of recommendations of legal scholarship likely to be helpful in deciding the unending stream of cases before them, and (2) recommendations that reflect both the diversity of the academy and its collective expertise. To that end, professors should organize a cert pool of a sort for law review articles. They have the knowledge: they know scholarship, good and bad. They have the know-how: they know peer review, pure and corrupt. (Peer review of a sort is at the heart of this project.) And they are in position: they have the tenure that frees them to speak truth not only to power, but also to each other. But rather than giving the Justices stacks of memos evaluating every single law review article (as the clerks in the cert pool do with petitions in every single case), the professors should take a different kind of case-by-case approach. Every time the Court grants a cert. petition or otherwise agrees to hear a case, they should give the Justices a simple, readably short list of those articles most likely to be helpful in deciding that case. Then the Justices or their minions can read the helpful scholarship themselves. Each list should be in the form of (and filed as) an amicus brief – a truly brief “brief of scholarship” rather than a conventional “scholars’ brief” (a form whose credibility is limited by the behavior of some scholars who sign such briefs). Producing briefs of that sort would be hard. But there are respectable entities that could do it. Two come immediately to mind.