Judges often complain that the legal scholarship appearing in mainstream law reviews just isn’t helpful to them. It’s too theoretical, too esoteric, and simply doesn’t try to engage seriously with the problems facing courts. I think these criticisms are quite valid as a descriptive matter: Most legal scholars and law professors don’t think that judges are the primary audience for their scholarship. Whether this is good or bad is a difficult question, but as a descriptive matter I think it’s pretty clearly true.
So here’s the question: 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.
Let me start with an example. I think it would be very helpful if con law scholars wrote more about the difference between as-applied and facial constitutional challenges. As a general matter, facial challenges are challenges to the statute as a whole; as-applied challenges are challenges to the application of the statute in a specific set of circumstances. The difference between the two is crucial in practice: facial challenges are all or nothing, and as-applied challeneges are fact-specific. But the framework for determining when courts should review constitutional challenges using an as-applied challenge or a facial challenge is quite hard to figure out: at times it seems like the cases are results in search of a theory. Surprisingly, though, there is remarkably little written about this topic. Richard Fallon has written the best article so far, but it’s very preliminary and leaves open a lot of questions. I think scholars could really help the courts by writing on this.
What are some other examples? Anonymous contributions are fine, of course.
This is a more general response – not what topic but how generally to go about treating topics.
One problem is that for scholars to address current hot issues, especially those in front of the SCOTUS, the issue may be resolved or have become more nuanced by the time an article is actually published. So there is this gray area between articles that are currently helpful (but maybe only for a few months) and those that are so theoretical that they are not very useful at all. This middle ground is what scholars should shoot for.
My advice would be, assuming you want to address issues in a way that is helpful to courts, to look at lines of cases dealing with long-term questions (like the one OK cites above) and do close reads of the caselaw. Understanding how scholars and practitioners read their cases is very helpful to judges. It is very likely a judge agonized over certain passages in a case and seeing whether anyone picked up on these lines or phrases is very telling for a judge.
It is a lofty goal to aspire to steering the law via a LR article (or even being helpful in a practical sense). But if a judge reads an article for insight into how certain cases are being understood by the scholarly community, and agrees with the interpretation, the judge will be more open to the ideas presented by the article.
The academy should explore the proscriptions imposed by the Fifth Amendment grand jury clause on administrative subpoenas issued solely to secure evidence of crime. It’s a tool that has dramatically shifted the gathering of evidence from grand jurors to the executive branch.
This might be too general for what Professor Kerr had in mind, but I recommend any and all insight into a topic that is pervasive and increasingly prevalent on the federal docket: ERISA. Yeah, I know, it’s intricate, dense, boring, etc. But part of the problem in ERISA law is that law clerks, many of whom have little experience with pension and healthcare benefits, loathe the cases and seek the easiest way out. A straightforward, informative article might do wonders as a guidepost in resolving and clarifying circuit splits or lacunas in ERISA jurisprudence.
In addition, some areas of ERISA law overlap with what are generally considered more sexy issues. Preemption, for example, is a big issue in ERISA cases, and of course has many con-law and civ-pro elements to it. It’s also an area of the law in which the typical conservative/liberal divide on the Supreme Court tends to break down somewhat. That is to say, there’s a little something for Court watchers as well.
I think an in-depth, historical analysis of any constitutional provision is always appreciated (assuming it is one the courts grapple with from time to time); so long as it is done without an agenda in mind.
I’d like to think that this article made a contribution to the issue of facial vs. as-applied challenges (note that the Supreme Court unanimously adopted the article’s suggested approach in the recent Ayotte case).
More generally: The first commenter is correct that too much scholarship consists of analyzing or critiquing recent Supreme Court decisions — all very well, but not much use to lower courts. Posner has made the same point.
I’d guess that the best corrective would be for scholars to 1) identify issues on which there are circuit splits (Tom Goldstein could point to quite a few of these), and 2) write an article explaining how the issue should be resolved. After all, if there is a circuit split, there’s a good chance that the issue is 1) important enough, or 2) confusing enough that you could write an interesting article about it. Plus, it could be very useful for other courts that have to consider the issue, or for courts that are taking the issue en banc.
Or maybe take a broader view involving several different splits. Say your theory is that courts ignore plain text too often. Or that courts follow plain text too mindlessly. Then whatever your theory is, find several examples involving splits as to different federal statutes. A simplified example for a blog comment, I know, but the point is that a clever scholar could point to several different splits and then create a grand unified theory of something.
As a recent former clerk, a couple of areas spring to mind. First, both admiralty and antitrust- the “federal common law” areas. I think law and economic articles on AT are extremely helpful since Congress doesn’t update the Sherman Act but over time our understanding of the role of economics in AT law has obviously evolved. ERISA is a good one b/c the judges don’t understand it at all, and there’s simply no way for clerks to learn a sufficient amount about it.
Other areas, and this is a bit broad, are those where there are conflicting Supreme Court cases that one has to just kinda pick and choose- a framework for how conflicting precedents work together or reflect different ideas or ideals would be helpful. This would include conflict preemption, abstention, Parrat/Hudson doctrine. I realize this last category is sorta gray and expansive- the Court offers a substantial amount of conflicting precedent over time – but, as a clerk for a circuit judge – nothing is more frustrating than staring at two seemingly diametrically opposed cases and having no idea what to do. I think in that instance a scholarly article that reconciles/discusses a way out could be useful to a lower court judge in crafting an opinion.
Some topics that I would have found helpful this year:
1) A good primer on the legislative history of ERISA, particularly with regard to its enforcement mechanism.
2) A paper on how general principles of administrative law — such as Chevron, Chenery,and the substantial evidence test — apply to asylum cases.
On Orin’s example: David Gans recently published an interesting article called Strategic Facial Challenges in B.U. L. Rev. which can be found at http://www.bu.edu/law/lawreview/v85n5/Gans.pdf, and it is of both practical and academic interest.
Empirical work, broadly defined, seems the most useful. Judges and clerks can typically slog through precedents and figure out the (more-or-less) “right” legal answer to a case. This is, after all, their job. Often, though, complicated policy questions arise with no amici available to explain real-world consequences. Articles that explain the long-term historical development of a particular legal policy or its present-day implications, including stats, can go a long way toward highlighting the external consequences of legal decisions. This suggests that “law and” scholars, especially empiricists, have the best opportunity to produce articles useful to the courts.
Just write a good treatise, like Prosser.
I always appreciated it when someone had gathered into one source all the other relevant source materials I would need to look at for an opinion (usually cases and statutory cites, but sometimes secondary material). Usually my silent thanks went out to a former clerk in a prior case, but I remember occasionally using a thorough law review article to start my research. If the substance of the article was helpful from a judicial decisionmaking point of view (as opposed to helpful more practically as a research tool), it would be apparent from how (and if) subsequent cases treated it.
That said, I can think of more than a few instances in which I would have found helpful a law review article on a new piece of federal legislation that thoroughly compiled the legislative and political history and discussed analagous legal sources that could aid a judge interpreting that statute for the first or second time.
As a former USCA and SCt clerk and a practicing attorney, I agree with many of the previous comments. But I wonder whether there isn’t a more systemic problem, namely, that what interests law professors tends not to track very closely to the issues practitioners normally face. I would wager that the ratio of con law professors to total law professors VASTLY exceeds the percentage of all cases in which significant constitutional issues arise. As a result, there is (from the practitioner’s perspective) way too much literature on esoteric con law issues that don’t arise in real life very often, and way too little on difficult but unpopular-in-the-academy issues that practitioners face more frequently (one commmenter mentioned ERISA, and there are plenty of others).