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March 21, 2007

Two more cents on the relevance of legal scholarship

Doug and many, many others have commented recently on the New York Times article describing the decreasing citation of traditional legal scholarship by federal courts.   As part of that debate, it is important to recognize the audiences for legal scholarship.  I think there are three basic audiences, listed below in descending order of the rewards they can bestow on an academic:

1)  Those in the legal academy, including both professors and students, are usually viewed as a primary audience for traditional legal scholarship.  Our status is not built on our reputation with judges, for the most part, but on how other academics view us.  An article which is well-received by this audience (even if totally ignored by the outside world) is most likely to bring a professor tangible benefits, such as better pay, job mobility, a named chair, tenure, and a higher U.S. News ranking for her school. 

2)   Judges & practitioners are a secondary audience for scholarship.   It can help a professor's career to be cited by the U.S. Supreme Court, but not as much as publishing a major article in a top journal.  The articles most useful to this group include synthesis pieces, pulling together trends in case law.  Perhaps not coincidentally, these articles are not highly valued among academics. 

3)  Decision-makers outside the courts, such as legislators, constitute the tertiary audience for legal scholarship.  While many academics write about policy issues, very few direct those articles at those who create the policy, taking into account the political realities a legislator faces.  Notably, these decision-makers have very little to offer the academic-- statutes do not even include a citation to an article which influenced the creation of that law. 

Thus, we seem (not surprisingly) to write primarily for the audience that offers the most rewards.  If we cared about changing the world, the relative importance of these three audiences would probably reverse.

-- Mark Osler

March 21, 2007 | Permalink


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Mark and others: What can be done to reverse this set of priorities as you suggest? If professors' incentives are linked to impressing other professors, how can that structure change? Is it fair or preferable, for example, to grant tenure based on a professor's actual impact on policy rather than sheer intellectual argument? Is real-world impact at least an indirect measure that professors respect with regard to each others' work?

Posted by: Gene Koo | Mar 27, 2007 11:09:35 AM

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