Tuesday, October 22, 2013

Glass Houses: Liptak on Legal Scholarship

Frank Pasquale

There are smart critiques of legal scholarship. Unfortunately, Adam Liptak's recent hit job isn't one of them. It's a lazy recapitulation of the Times's ongoing crusade against law schools, right down to its citation of Justice Roberts's snide dismissal of legal scholarship as preoccupied with useless topics like "Kant[ian] evidentiary approaches in 18th century Bulgaria."

So why bother responding to it? Because it exemplifies the groundless generalization and distortion that academics exist to dispel. Liptak's understanding of the audience for legal scholarship is simplistic. He betrays no sign of reflecting on the many ways that the impact and quality of academic work may be measured and contested. He doesn't even try for balance in his piece. I discuss below a few things he might have learned had he actually done his job.

Courts Are Just One Part of a Larger Legal Landscape

Liptak is preoccupied with Supreme Court citations as a measure of success, and secondarily with other judicial citations. He gives short shrift to the agencies many scholars are indeed influencing. This is not a minor oversight: bureaucracies shape vast swathes of American life daily, with billions of dollars in measurable influence.* Health law scholars like Tim Jost have great (and positive) impact as they help on advisory bodies considering knotty issues in insurance law. Finance scholars can also have clear, direct, positive impact.

For example, I heard from a Hill staffer that Saule T. Omarova's article "The Merchants of Wall Street" helped spark a major, economy-boosting change in the Fed's regulation of bank holding companies. I strongly encourage Liptak to consult David Kocieniewski, who reported the article for the Times, to find out just how influential Omarova's article was. Public interest groups have given her a great deal of credit for illuminating shadowy practices with zero productive value, and great cost to the real economy. If that article catalyzes regulatory change that saves the economy billions of dollars, does the failure of courts to cite it diminish its value? Indeed, isn't it more valuable by virtue of convincing the Fed to shift course, rather than being litigated over?

Legal Scholarship is Bad...Compared to What?

We might also want to compare the state of legal scholarship to that in other areas. Is pharma research much better? Psychology? What about economics? Finance? Medical inquiry? Econometrics?

These are just critiques I can Google in 10 minutes or so; there are "meta-critiques" that are even more trenchant and powerful. The larger lesson here: if your only point of reference is legal scholarship itself, you'll probably find quite a few problems within it. Had he situated law's problems in the context of crises of confidence in other fields, Liptak might have offered more measured lamentations.

Journalist, Heal Thyself

Indeed, Liptak's complaints are better applied to his own article than to the work of legal scholars. What could be more elitist and insular than his repeated reference to the unsupported assertions of SCOTUS grandees? What could be more reckless than to presume to opine on a whole field based on a few cherrypicked quotes and studies? It looks like Judge Dennis G. Jacobs, quoted by Liptak as forcefully dismissing the relevance and use of law reviews, has in fact "cited law reviews dozens of times in his years on the bench."

Wouldn't a responsible journalist want to do a basic Westlaw search to see if one of his key sources' conduct actually matched his words? On the other hand, if Liptak's way of measuring the value of his own work is sheer citation, maybe just printing whatever quote sounds harshest is the smartest way to go. Everybody loves a controversy! But such a cynical play for attention raises serious doubts about Liptak's ability or willingness to fairly evaluate the standards of other fields.

Liptak even mixes up his claims, suggesting that law professors' worry that students lack "the knowledge to pick the best articles" is somehow a criticism of legal scholarship as a whole. Instead, it's mainly a status-driven concern about what gets into the "top journals." They are by no means a meritocracy, and need reform. But the fact prestige may accrue unfairly says nothing about the underlying quality of the articles involved.

For example, I know who are the best writers on the law of health IT, or search engines, or health care finance. I'll read their work if it appears in the Harvard Law Review or the Saskatoon Picayune. I'm glad if they garner the Crimson seal of approval, but that means little to me regarding the piece's overall value. That must be judged by experts. I speak from some experience: one of my most cited pieces was one of my "worst" placements. With decent search skills, people find relevant and useful pieces, no matter where they are published, or even if they are self-published.

Citation patterns may help us discern truly important work. But lack of citation isn't nearly as damning as Liptak makes it out to be. The Supreme Court has drifted to the right---does that somehow diminish the quality of scholarship that fails to support its policy positions? Politics and social science are distinct vocations. Moreover, many of us work in transactional or administrative fields, and don't aspire to be cited by courts.

The most effective legal academic may be an agency advisor, like several people I know who've had very important roles at the FTC, FCC, FDA, and other agencies. Hundreds, perhaps even thousands of hours of consultation done by law profs at agencies each year, based on articles or research that are rarely if ever quoted by courts or widely cited. The work is nevertheless highly influential. Moreover, there are the problems of "citation cartels," and insular groups of scholars who cite each other and shut out those who fail to conform to their narrow methodology. Citation can be driven by many motives other than the excellence of work.

Most distressing is Liptak's lack of respect for work in jurisprudence, philosophy, literature, or history. These are venerable humanistic fields with a lasting influence in legal studies. The work of a legal historian can, indirectly, influence matters ranging from gun control to ERISA, but they often have no idea when they start researching what their inquiries will lead to. To simply write them off if they don't happen to appear in a court decision (or get cited by some critical mass of other authors) is deeply anti-intellectual.

Stenographer for the Comfortable

We're long past the point when establishment journalists would routinely "afflict the comfortable and comfort the afflicted." There are so many more inviting targets! Liptak's broadside reminds me of Sarah Palin's crude dismissal of "fruit fly research" and other basic science. Palinesque contempt for anything without immediate application has already deeply deformed research in biology and chemistry. It would be a shame to see it warp legal scholarship as well.

Once the New York Times's idealists influenced SCOTUS; now its careerists seek merely to curry the Court's favor. In a reverse Greenhouse Effect, Liptak tries mightily to reframe Justice Roberts's politics as those of a nation sick and tired of "pointy headed intellectuals." As the Chief develops a contempt for legal scholarship, Liptak meekly follows, a stenographer for the powerful in what is becoming a troubling Times tradition.

There are journalists who constructively report, build on, and translate scholarship for the general public. Others would rather rest on their laurels and garner quotes from a well-worn rolodex of legal celebrities. I hope a journalist like Julia Preston or Kocieniewski might write a reconsideration of the value of legal scholarship. In the meantime, I'll continue turning my attention to the Financial Times, a paper whose legal correspondents are mercifully free of Liptak's anti-intellectualism.


*From Bob Condlin, a list of contributions of legal scholarship appears below. I hope to soon start an informal awards program for "legal scholarship that matters;" please contact me if you have nominations:

[There are] numerous contributions legal scholarship has made to the development of law in areas as diverse as privacy, see e.g., Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890), tax, see e.g., Boris Bittker, Tax Shelters, Nonrecourse Debt, and the Crane Case, 33 Tax L. Rev. 277 (1978), commodities trading, see e.g., Saule T. Omarova, The Merchants of Wall Street: Banking, Commerce, and Commodities, 98 Minn. L. Rev. (forthcoming) (2013), antitrust, see e.g., Robert H. Bork, The Antitrust Paradox (1993), property, see e.g., Charles A. Reich, The New Property, 73 Yale L. J. 733 (1964), environmental protection, see e.g., Joseph Sax, The Public Trust in Natural Resource Law, 68 Mich. L. Rev. 71 (1970), copyright, see e.g., Robert Denicola, Applied Art and Industrial Design: A Suggested Approach to Copyright in Useful Articles, 67 Minn. L. Rev. 707 (1983), consumer financial protection, see e.g.,Elizabeth Warren, Unsafe at Any Rate, 5 Democracy (Summer 2007) available at
, product safety, see e.g., Guido Calabresi, The Cost of Accidents: A Legal and Economic Analysis (1970), and dozens of others.

See also David Kennedy & William Fisher III (eds.) The Canon of American Legal Thought (2006) (describing twenty law review articles that have had a profound effect on the shape of American law and legal institutions); Michelle Harner & Jason 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) (describing the influence of legal business law scholarship on the decisions of the Delaware Supreme Court). It also ignores the systemic contributions of scholars like Henry Hart and Albert Sachs, Mitchell Polinsky, Richard Posner, and numerous others, who changed the ways in which generations of judges and lawyers go about their business and think about law and legal institutions. Scholarship is the legal system’s seed corn, and destroying seed corn eventually makes an ecosystem uninhabitable.