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April 20, 2006

A great question about legal scholarship

In preparation for this exciting conference at Harvard Law School on blogs and legal scholarship — entitled "Bloggership: How Blogs Are Transforming Legal Scholarship" — I have been thinking a lot lately about the evolution and value of legal scholarship.  (In fact, I have a draft paper nearly complete that I hope to post soon.)

Orin Kerr, who will also be speaking at the conference, is also clearly thinking about these topics.  He not only already has his paper drafted (and has this follow-up post), but he now has posted a fantastic question about "practical" legal scholarship in this post entitled "A Question for Judges and Law Clerks (Both Current and Former)."  Here is Orin's question that I am eager to have everyone thinking about:

If you're a legal scholar who wants to help the courts work through difficult problems, what topics should you write about?  It's one thing to say that scholars should be "practical," but this isn't necessarily helpful; it's hard for outsiders to know what kinds of problems judges need help figuring out.  More specific advice would be really helpful. I imagine judges and law clerks (both current and recent) are best suited to answer this question, as they're the ones who have had to work on cases in which they might have used some scholarly assistance.

Of course, my one word answer is "sentencing," but there is surely a lot more to be said on this great topic.

April 20, 2006 at 02:12 PM | Permalink


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It's funny you should mention sentencing. I spoke with a federal judge yesterday at some length on the DOJ "topless guidelines" proposal. So, it is truly on the mind of judges.

Posted by: Guest | Apr 20, 2006 2:18:40 PM

Well, sentencing of course. But also evidence, especially scientific evidence and expert testimony; and jury instructions. These can be hard questions that judges often have to answer quickly. Fixing errors on appeal is extremely time-consuming and re-trials are wasteful. The harmless error rule means a lot of errors don't get fixed. Judges need to get it right the first time.

Also maybe standard of care: the Letterman injunction story is chilling. If accounts in the press are correct, the court just wasn't paying enough attention to the pleadings. This may be a particularly good topic for blogs. We don't need a hundred fully footnoted pages in a law review to remind us: Read the pleadings and THINK!

Phillip C. Zane
Practicing attorney and former law clerk

Posted by: Phillip C. Zane | Apr 20, 2006 2:42:20 PM

Blogs do something nothing else does -- give appellate judges instant feedback on their decisions from relatively disinterested parties. That is good for everyone.

Posted by: David in NY | Apr 20, 2006 3:14:58 PM

The sorts of issues that come up in appellate case law are rarely necessary, in my experience, for judges and law clerks in cases where both sides are represented by counsel. Practicing lawyers are good at finding cases, and in cases where both sides are represented by counsel and the issue concerns one address in appellate decisions, scholarly articles are used primarily by lawyers, as a case finding tool and check on their own independent research far more so than be judges, who typically lack of time and resources to go far beyond the authorities identified by counsel (or cited in those authorities) in a well briefed case.

One situation where judges and law clerks, in my experience as a practicing attorney, turn to scholarly guideance, often covertly, by reading literature that discusses the philosophical issues behind matters that are ultimately vested in a trial judge's discretion and hence, inherently not a subject of appellate case law (like sentencing in a state without sentencing guidelines, or how to apply the "best interests of the child" standard in cases where there are a wide variety of choicees none of which are close to an abuse of discretion).

Another situation where I think scholarly journals are particularly practical is when they address issues likely to be raised by unrepressented or poorly represented parties, but which are technical in nature. Here, the briefs provide little guidance to judges, and appellate case law is often limited because the parties involved typically in these kinds of cases often lack the means or incentive to appeal decisions and create that kind of law.

For example, in Colorado, like many other states, appeals from courts of limited jurisdiction area rare, and in the first instance are to the trial court of general jurisdiction whose opinions are rarely published. Yet, many kinds of cases arise primarily in courts of limited jurisdiction. For example, landlord-tenant cases and consumer debt collection cases. Only when a case like this one is not only appealed, but appealled all the way to the state supreme court, will a published opinion result, and this is rarely economic in the individual case at issue.

For example, there is very little case law that governs such fundamental issues as whether a doctor may collect in a suit for unpaid services rendered, from an uninsured patient who is unable to pay, a charge that is significantly higher than that paid by the 90%+ of his customers who have insurance or pay in cash, when there is no express agreement between the parties as to the charge for the service. Is it an implied contract for which a doctor may charge a "posted price" which might be a high one, or is it an quantum meruit recovery for which the relevant issue is the "average price" or something along that line.

Similarly, many limited jurisdiction courts have rules that make no sense. For example, in Colorado, the rules prohibit you from filing motions without leave of the court, yet often that is the only sensible thing to do, and often judges rule on those motions.

The hard thing about this kind of scholarship, of course, is that you can show its merit simply because it is supported by authority. One has to support one's argument with reputation and persausion instead.

Posted by: ohwilleke | Apr 20, 2006 6:40:02 PM

And, of course, another area where judges turn to scholarship is again, an area where there is no appelate law. This is in cases of first impression.

Bottom line: Scholarship is a resource of last resort. It is used when you can't find anything else.

Posted by: ohwilleke | Apr 20, 2006 6:42:22 PM

Open questions of law, particularly in emerging areas. Articles on theories of constitutional interpretation are not very helpful as most judges already know how they interpret the constitution. Moreover, once the Supreme Court has decided a case, the judges serving on state and the lower federal courts have little use for debating the merits of the Court's decision. That's water over the bridge, and only the Supreme Court (or law professors, in their own fantasy worlds) can overturn it.

What is often less apparent, however, is how a decision by the court might apply in other circumstances, or how disparate parts of a statute fit together. You cannot always trust the parties, particularly in an area of law with which you are unfamiliar. The only time I can remember relying heavily on legal scholarship was in deciphering a statute that had no appeallate law on it.

[current law clerk]

Posted by: Guest | Apr 21, 2006 6:57:12 AM

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