June 30, 2016 (Fault Lines) — Ed. Note: At Slate’s Supreme Court Breakfast Table, Seventh Circuit Judge Richard Posner took the position that legal scholarshipÂ had no real impact on the law.
I donâ€™t doubt that law professors are frequently active outside the classroom and that their academic work sometimes addresses practical issues, but what Iâ€™d like to see is evidence of impact. Amicus briefs? Working for nonprofits? Blogging? â€śSpeaking truth to power?â€ť Absurd: speak all you want, professors, power doesnâ€™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 â€śmajorityâ€ť 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, Â 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 donâ€™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. Â 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.
Itâ€™s the rare week that I donâ€™t download, read and think about several current law review articles in the evenings at my home study. Â In contrast, I usually settle for quick case summaries of my circuitâ€™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 wonâ€™t be reviewing my opinion.