Mimesis Law
24 July 2017

Legal Scholarship Should Matter To Judges

June 30, 2016 (Fault Lines) — Ed. Note: At Slate’s Supreme Court Breakfast Table, Seventh Circuit Judge Richard Posner took the position that legal scholarship had no real impact on the law.

I don’t doubt that law professors are frequently active outside the classroom and that their academic work sometimes addresses practical issues, but what I’d like to see is evidence of impact. Amicus briefs? Working for nonprofits? Blogging? “Speaking truth to power?” Absurd: speak all you want, professors, power doesn’t listen to the likes of you. And a musical is going to transform constitutional law?

Northern District of Iowa Senior Judge Mark W. Bennett wasn’t buying:

I disagree with Judge Posner that the scholarship from the academy does not assist judges in very significant ways. As my experience as a judge has grown, I have spent less time reading circuit and Supreme Court cases and more time reading law review articles. I have, on too many occasions to remember, when not bound by controlling precedent, gone against the “majority” view on an issue based on ideas first inspired by a law review article I have read.

It is true that articles about land reform in Mozambique or other esoteric topics generate little but humor among jurists. It is also true that many,  if not most, members of the academy, unfortunately in my view, remain untethered to the real world of real disputes. The exception being their obligatory two years at Biglaw right out of a top law school before joining the academy.
But that is not to say that their scholarship does not have an important impact on judicial decisions. After all, most jurists cranking out opinions are generalists. We don’t have the time to reflect as deeply as we would like to because justice delayed is often justice denied.
On the other hand, members of the academy are specialists and lack the time pressures jurists have. Often two or three articles in five years is all an professor needs for tenure. Most have summers off.  I find most articles, at least the majority of ones I chose to read, reflect deeply and critically on an issue or recent judicial opinion.
It’s the rare week that I don’t download, read and think about several current law review articles in the evenings at my home study.  In contrast, I usually settle for quick case summaries of my circuit’s new opinions and new Supreme Court cases.
Not long ago, I disagreed with a draft from a law clerk who has been with me my entire career because I took the time to find a law review article that completely changed my thinking on the issue. It happened to be published in a third tier law review. I should be pleased Judge Posner won’t be reviewing my opinion.

2 Comments on this post.

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  • Richard G. Kopf
    30 June 2016 at 3:43 pm - Reply

    Mark,

    I agree. Posner does tend to exaggerate particularly when trying to make a point.

    Ironically, some of his best work, like the Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice, with Lee Epstein and William M. Landes, is highly academic but extremely important to lawyers, judges, and laypeople regarding how federal judges actually behave.

    All the best.

    Rich

    PS By the way, you astound me with your ability to: (a) work as a trial judge; (b) frequently write for the law reviews, (c) speak (and thereby teach) at meetings of lawyers and judges all over the place, and (d) blog. You are a rare judge in that you are both practically and academically inclined–and you are superb at both endeavors. But, I still think you (and our esteemed editor SHG) are too damn liberal. (Kidding.)

  • Mark Bennett
    30 June 2016 at 9:01 pm - Reply

    Rich,

    You are too kind. My high school basketball coach told me : “You have so little respect for authority you will never amount to anything.” I’d like to think he nailed it. Best

    mark