OrinKerr.com

A Question for Judges and Law Clerks (Both Current and Former)

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.