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June 18, 2017

"Days of Future Past: A Plea for More Useful and More Local Legal Scholarship"

The title of this post is the title of this notable new paper now available on SSRN and authored Frank Bowman.  Though not directly about sentencing, Frank's history as a fantastic sentencing scholar and reform advocate surely helped shape his perspective on the issues he discusses (and also surely helped me and this blog get a shout-out in footnote 81).  Here is article's abstract:

Legal scholarship is at an inflection point because the legal education industry, to which legal scholarship is merely an internally overvalued appendage, is passing from a period of affluent abundance to a period of relative austerity. Scarcity stimulates self-examination.

This essay describes how the population explosion in American law schools during the 1990s and the simultaneous rise of the U.S. News rankings mania created a kind of tulip bubble in legal scholarship - a bubble that is rapidly, and properly, deflating. I make several concededly retrograde recommendations for dealing with a post-bubble world, including changing law school hiring practices to favor professors with more legal experience than has long been the fashion, assessing scholarship more by effect and less by placement, and devoting more of our scholarly attention to questions of state law and practice.

These suggestions all flow from the basic premise that we should more consciously encourage, even if we do not limit ourselves to, producing legal scholarship that has practical value to legal and business professionals and to policy makers at every level of American government. That premise, in turn, is based on the conviction that a modestly more pragmatic approach to the scholarly project is good for society and is, in any case, a sensible response to the parlous state of the legal education industry.

I even go so far as to suggest that increased pragmatism and localism in legal scholarship will assist law schools in the U.S. News rankings wars.

June 18, 2017 at 09:55 PM | Permalink


Because of the physical nature of all legal procedures, empirical evidence should be required for all proposed laws and regulations. They should be tested in small jurisdictions, and shown to be safe and effective. The unintended consequences should be enumerated, and assessed prior to testing in larger jurisdictions.

Legislators and regulators should compensate the victims damaged by their carelessness. They should be required to carry insurance. Because punishment is the sole tool of the law, their mistakes all qualify for strict liability.

The decision extending immunity to the states from their own citizens violates the Eleventh Amendment. It should be ended by federal legislation. The Eleventh Amendment itself should be repealed because it violates the Fifth and Fourteenth Amendments.

I prefer analyses based on utility. I am aware of the criticisms of utilitarianism. However, it remains the best philosophical approach to empirical analysis of the law. The method of analysis should be decided by the voters.

Posted by: David Behar | Jun 18, 2017 11:49:01 PM

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