Legal Commentary

[This post is from Adam Scales, who teaches Torts at Washington and Lee.]

Even to pose this question is to invite a degree of ridicule; the estrangement of academic law from "real" law has been long and amply commented upon.  I pose the question to Prawfs readers because I'm debating it with my teaching assistant.

At Washington & Lee - home of the new practice-oriented 3L curriculum! - third-year students serve as teaching assistants in the Legal Writing Program, which is itself integrated into substantive courses such as Torts and Contracts.  My assistant has somewhat reluctantly agreed to do a short presentation on how law reviews can be useful to practicing lawyers.  As this was my suggestion, I feel bound to come up with some reasons why - and the circumstances under which - they are, in fact, useful.

I find this a difficult task for several reasons. 

First, I generally share the Harry Edwards school of thought that decries the useless abstraction of so much law review scholarship.  Moreover, I really only know my own fields of Torts and Insurance Law, and I AM an academic - of course it's easy to spot some examples, but that doesn't make them representative.  And, the range of issues researched by lawyers is obviously vast - it is difficult to synthesize an obvious guideline for when it is time for the lawyer to turn to the scholar for guidance.  What follows is a very rough stab at some areas/types of questions that I think would be amenable to use of law reviews.  I am very interested in observations and comments, as I plan to pass this along to my assistant to make the job easier. 

Drawing first on what is familiar to me, the 1960s and 70s were a period in which a number of important doctrines relating to torts and insurance were substantially qualified or withdrawn.  Several key law review articles (Keeton's Rights at Variance, and works by Prosser and Wade) were cited repeatedly by courts as they re-crafted these areas of the law.  Moreover, both these areas have witnessed some retrenchment during the past 15 years or so.  Particularly in the area of Products Liability, the skeptical work of scholars about the earlier developments provided a roadmap for their reconsideration.

Perhaps this can be generalized: when an area of law is in flux, courts are more receptive to scholars' views, and lawyers can usefully take advantage of this in framing their arguments.  Judges seem to have mixed views about what is labeled "public policy" in legal argumentation.  For most judges, what counts is the "doctrinally correct" answer, not a lawyer's (or law professor's) opinion about what might be desirable.  However, judges also want to believe that what they are doing makes sense.  To the extent legal scholarship can supply an otherwise non-apparent rationale for a rule - or, a reason to bend an uncertain doctrine one way or another, it can be very valuable to the advocate.

I think there is also some interplay between legal scholarship and the substantive area of law.  Presumably, every discipline "thinks" it is advancing the interests of justice in its particular domain.  But, some areas are highly susceptible to policy considerations.  Torts is one of them.  Insurance has been thought to be so - but courts in recent years have shown great ingenuity in reasserting insurance law's contract underpinnings.  Whenever I think of intellectual property or anti-trust questions, I tend to think of them as being less rule-driven, and more policy-driven than some other areas I can think of (such as, for example, cases interpreting the tax code).  Do readers agree? (I floated a variation of this theme at SEALS, only to see it shot down cold by an IP professor in the audience.  Was he right?)

Of course, much legal research involves figuring out what the law is, not necessarily arguing for a particular result.  Here, my assistant is most skeptical.  Law reviews are "not authority", are often wrong in their description of the law, and reflect the biases of their authors, who  may distort the thrust of a line of cases in order to vindicate the author's conception of what the law ought to look like.  I have to disagree in two ways.  First, courts use law reviews as authority all the time, and not simply for cutting-edge issues.  Moreover, if I understand it correctly, the views of "learned writers" are considered part of international law (which is certainly convenient for international law professors). 

On the other hand, law reviews certainly exhibit biases in favor of particular views of the law.  Interestingly, however, I think this problem is worse for practitioner-written articles in bar journals, which really tend to be thinly-disguised retreads of their briefs. That said, there is often a much higher technical proficiency in such articles; I always find them useful, even if I know I can't trust their authors entirely. 

Stepping back a bit, it seems that academic law reviews can be essential for formulating structural or relational arguments that address complex and subtle problems.  Everyone knows that the meaning of the Second Amendment is an interesting question reflecting the interplay of text and history.  But, until one thinks about it a bit, it is not necessarily obvious that restrictions on out-of state wine shipments potentially implicate at least three different constitutional provisions that each enjoy a complicated background and relationship to one another.  I would put such issues into the category of questions for which one might not even realize what the questions are (let alone their answers) without benefit of the academic perspective.

Let me close an already too-long post with the recognition that much of law review scholarship, even that thin sliver that still purports to be about, you know, actual law, will not be terribly relevant for most lawyers.  But law professors are an endlessly hypothesizing lot, and at some point they all need tenure.  Unbound from the narrow questions courts have imagined themselves to be answering, the academic is free to (and often does) consider every conceivable variation on a theme.  For the lawyer who's hit a brick wall that might just be what she needs.

I welcome your thoughts, and feel free to email me at scalesa@wlu.edu if you'd like to comment offline.