I Don't Particularly Care Whether Judges and Lawyers Read My Scholarship

Over at Concurring Opinions (here), my colleague and friend Gerard Magliocca has just posted on the perennially controversial issue of the relevance of legal scholarship for the legal profession. Having butchered the comment I posted in the string following Gerard's post, I thought I would rephrase and expand on my remarks here.

Plenty of legal scholarship has been, and continues to be, written primarily for the benefit of practicing attorneys and judges. Personally, I find most such scholarship to be uninteresting, perhaps for the same reasons that legal practitioners find it useful. In any case, the subset of legal scholarship devoted to the practical affairs of judges and lawyers seems to have been shrinking, as a percentage of the entire corpus of legal scholarship. An increasing percentage of the literature is not written primarily to educate and/or influence lawyers and judges. Unsurprisingly, then, that they find the literature less relevant to their day-to-day work. It's not supposed to be relevant (at least not directly).

My sense is that Justice Roberts understands that point, but Judge Harry Edwards does not. The former considers much of legal scholarship to be irrelevant to his work on the Court, but does not denigrate it as the later has. I find bemusing the presumptuousness of judges and practitioners who believe that they comprise the only legitimate audience for legal scholarship.

I confess that some of my scholarship (for instance, my work on the Takings Clause) is intended to influence or educate (however ineffectually) lawyers and judges. But they are not the intended audience for much of my work. Much of what I publish is intended to influence or educate law-makers and regulators; and sometimes I am just working through problems and puzzles with my colleagues in academia. Even if some judges and lawyers cannot understand why I might want to do that, such scholarship has significant social value, contributing to the stock of useful knowledge in the world.