Specifically Roberts claimed that legal scholarship is not relevant to the work of lawyers and judges, saying he is on the same page with Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit, who believes there is a great “disconnect between the academy and the profession.”
Roberts continued, “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”
As Glenn Reynolds put it, "It’s a fair cop, for the most part." But only for the most part.
When I sit down to write a new project, the reader I see in my mind's eye is one of the Delaware justices or chancellors who are engaged with corporate law scholarship. To use another metaphor, the bulls-eye of my target audience are jurists like Leo Strine, Jack Jacobs, Myron Steele, and so on. Corporate law academics make up the first ring, practicing lawyers the second ring, and everybody else is in the outermost ring.
I therefore adopted a style style that I hope is simple, direct, and reader-friendly. Even when dealing with complicated economic or financial issues, I try to make them readily accessible to legal audiences. At the same time, however, I have not shied away from bringing theory to bear on doctrine. Because the target audience of my scholarship includes not just academics but also judges and practicing lawyers, economic analysis is done solely qualitatively—no mathematical models or formal game theory—and kept as intuitive as possible. Even more important, economic analysis is never done for its own sake. In his well-known critique of modern legal scholarship, Judge Harry Edwards remarked: “Theory wholly divorced from cases has been of no use to me in practice.” My practice experience confirmed that criticism, at least as long as we put strong emphasis on the phrase “wholly divorced.” Theory brought to bear on specific legal issues often can be quite illuminating, as I hope to have illustrated at least from time to time.
Personally, I believe that's the right model. Law is applied science, not basic research. We're engineers, not theoretical physicists. Hence, I agree with Jason Mazzone's comment that:
Many new law professors hold a Ph.D. in some field other than law (philosophy, history, and economics are the most common). Such training is useful but it is no substitute for doctoral training in the actual field in which one labors.
Mazzone proposes that law schools should establish Ph.D. in law degree programs:
I have believed that law professors in the United States should hold a Ph.D. in law. That belief is even stronger today. One reason law professors should hold a Ph.D. in law is that doctoral training in law would improve the quality of legal scholarship. For example, much of the scholarship that is produced nowadays in my own field, Constitutional Law, is not especially good. There are likely a variety of reasons for this, including the inability of many authors to distinguish between writing an academic article and authoring a legal brief. Doctoral training, with a substantial dose of training in scholarly methods, would head off this and other problems.
I think it's a great idea.
