In the latest issue of the Journal of Law, Ross Davies offers "Part 1" of "In Search of Helpful Legal Scholarship." Prof. Davies' essay is prompted by SCOTUS Chief Justice John Roberts' frequently expressed disdain for legal scholarship. In particular, this quote from Roberts seems to have provoked davies:
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 eighteenth-century Bulgaria, or something. . .
This leads Davies to speculate about "how to be academically helpful to the Supreme Court." Personally, I think his search would be aided by starting with a detailed tour of deepest darkest Delaware with laptop and camera in hand.
You see, if I were a constitutional law scholar, I'd be pretty depressed. When I sit down to write a new law review article, I almost always have ten specific people in mind as my core target audience; namely, the five men and women who sit on the Delaware Supreme Court and the five who sit on the Delaware Court of Chancery.
Granted, I also hope to influence the Delaware Bar (by which I mean all those countless corporate lawyers around the world who must engage Delaware law, not just those who live in Wilmington). And, of course, my fellow academics.
But it always comes back to those 10 Delaware jurists.
If I thought those jurists felt about legal scholarship the way CJ Roberts does, I would be quite depressed. If you asked Jack Jacobs or Leo Strine what was the last law review article they had read and they answered, as Roberts did, "I have to think very hard before I come up with one," I'd probably quit writing law review articles and try my hand at The Great American Novel.
Fortunately, however, the Delaware judiciary is, perhaps uniquely, engaged with the legal academy. Indeed, as Matt Bodie has noted, it's a two-way street:
... one of the very special things about the Delaware Chancery, and the once and future chancellors, is their openness to corporate law scholarship. Not only do Chancellor Chandler and Chancellor Strine have SSRN pages, but their opinions reflect a willingness to engage with the academic literature that goes beyond any other court in the nation. It's not even close.
Contrast Roberts' disdain for law review scholarship to former Delaware Chancellor William Chandler's comments on his Airgas opinion:
If the question is, "Would I have written this as long or in the same way?" probably not, because back when I wrote Unitrin in the mid-1990s, there hadn't been as much ink spilled by academics. You saw a lot of academic references in the opinion, and that probably resulted in a slightly different approach to how to write it, because I was writing it for the parties but also acknowledging the views of various academics on this question from professor [Lucian] Bebchuk to others.
On the one hand, you've a SCOTUS jurist who thinks the law reviews are all full of crap. On the other hand, you've got a Delaware jurist who admits his last major opinion was made longer because he wanted to acknowledge the views of academics.
The empirical data backs up these anecdotes. See Michelle M. Harner & Jason A. Cantone, Is Legal Scholarship Out of Touch? An Empirical Analysis of the Use of Scholarship in Business Law Cases, 19 U. Miami Bus. L. Rev. 1 (2011), which "focuses on the use of legal scholarship by Delaware state courts from 1997 to 2007, as well as on an interval basis dating back to 1965." Their study detected "no general downward trend in the use of legal scholarship in business law cases."
Of particular relevance to Davies' search, the Harner and Cantone study includes a detailed analysis of factors tending to predict whether the Delaware courts will cite legal scholarship in a given case:
In summary, an opinion that (1) is longer in page number, (2) includes more case citations, (3) is authored by Vice Chancellor Strine, (4) features more plaintiffs, (5) features more defendants, (6) involves breach of contract issues, and (7) finds for the plaintiff in part (as opposed to in full) will likely cite more scholarship.
Hence, my recommendation that Professor Davies start his search in Delaware. Then he can embark on a project that I might respectfully suggest might be named the "Strinification of Roberts."
BTW, my cite count in the relevant Westlaw databases:
Hmm. Not a depressing number, but not one that leaves me ecstatic. ... Maybe I should try writing about breach of contract issues ...