Legal Practice and Legal Scholarship and Law School Reputations: Ships Passing in the Night.

One of the most interesting aspects of the U.S. legal system is that, as a common law system (as opposed to the civil law system prevailing in the vast majority of the non-Anglo-American world), the practice of law and the activities of legal scholars exist in almost entirely separate realms. Having had worked for well over a decade in each of the realms of legal practice and legal academia, href="http://en.wikipedia.org/wiki/Common_law#Contrasting_role_of_treatises_and_academic_writings_in_common_law_and_civil_law_systems" target="_blank">the following account, from Wikipedia, reflects my own experience that legal scholarship in the U.S. legal system has little impact on the actual practice of law:

In common law jurisdictions [such as the U.S.], legal treatises compile common law decisions, and state overarching principles that (in the author’s opinion) explain the results of the cases. However, in common law jurisdictions, treatises are not the law, and lawyers and judges tend to use these treatises as only “finding aids” to locate the relevant cases. In common law jurisdictions, scholarly work is seldom cited as authority for what the law is. When common law courts rely on scholarly work, it is almost always only for factual findings, policy justification, or the history and evolution of the law, but the court’s legal conclusion is reached through analysis of relevant statutes and common law, seldom scholarly commentary.

In contrast, in civil law jurisdictions, the writings of law professors are given significant weight by courts. In part, this is because civil law decisions traditionally were very brief, sometimes no more than a paragraph stating who wins and who loses. The rationale has to come from somewhere else, and the academy often filled that role. As civil law court decisions move in the direction of common law reasoning, it is possible that this balance may shift.

A footnote to this explanation adds: “At least in the U.S., practicing lawyers tend to use ‘law professor’ or ‘law review article’ as a pejorative to describe a person or work that is insufficiently grounded in reality or practicality – every young lawyer is admonished repeatedly by senior lawyers not to write “law review articles,” but instead to focus on the facts of the case and the practical effects of a given outcome.”

I do not mean to point out the stereotypical disregard for legal scholarship among practicing lawyers to disparage legal scholars. Rather, I mean to emphasize what I wrote yesterday: it is the evidence in each case that persuades the legal decision maker what the just result is in each case. The legal rules of the common law system are not abstract principles of justice pronounced from on high to produce justice in each and every situation; instead, they are the refined products produced by centuries of case-by-case efforts to achieve just results based on the specific evidence presented in each of those cases. Thus, those legal rules are subordinate to the case-by-case efforts to achieve justice, not the infallible determinants of just outcomes in all future cases. As I wrote yesterday in suggesting that my students in analyzing legal disputes first consider what the dispute is about, then consider the evidence and its persuasiveness in helping them as human beings determine a just result in that dispute, and only then employ the legal rules to articulate as legal professionals speaking in the language of their technical expertise to explain the justice of that result:

In other words, the legal rules and their proper application arise from the evidence the parties bring to bear. The rules do not predetermine disputes that are predictable before they arise. Instead, they provide the legal language (developed over the centuries’ long development of the common law) in which to couch the just conclusions compelled by the evidence.

In explaining the practice of the common law, I do not mean to denigrate U.S. legal scholarhip. But I do mean to put it into the proper context within our legal system: scholars strive to develop generalizations that govern all cases. Courts, on the other hand, decide individual cases involving individual disputes between individuals who have personal stakes in those disputes. In doing so, the courts do their best to do justice in those individual cases. Scholarly generalization, inevitably, conflicts to a considerable degree with that individual effort to find justice between individuals involved in specific disputes.

And yet the reputation of law schools is weighted enormously in favor of the evaluation by law professors of the legal scholarship of other law professors. For law students, the vast majority of whom go to law school to become lawyers, the basis of these reputations must cause some consternation if there is any truth to what I have written above about legal scholarship’s distance from and irrelevance to legal practice. But here it is, from Brian Leiter, one of the most respected authorities on the evaluation of law school quality. What measures a law faculty’s quality? Not success as a lawyer. Instead:

Faculty Quality (70% of [a law school's] final rank): the rank in this category is based on three criteria: scholarly productivity; scholarly impact of faculty work; and reputation. More precisely, 25% of the rank is based on the per capita rate of publication for the period 1998 through summer 2000 of,

1. articles in the ten most frequently cited student-edited law reviews (Yale Law Journal, Harvard Law Review, Stanford Law Review, University of Chicago Law Review, Columbia Law Review, Michigan Law Review, California Law Review, University of Pennsylvania Law Review, and Texas Law Review, plus New York University Law Review, which is less-often cited but benefits in prestige from being affiliated with a top law school;

2. articles in ten leading peer-edited law journals (Administrative Law Review, American Journal of Comparative Law, Constitutional Commentary, Environ- mental Law, Journal of Legal Studies, Law & Contemporary Problems, Law & Social Inquiry, Legal Theory, and Tax Law Review);

3. books from the three leading law publishers (Aspen, Foundation, West); and

4. books from the six leading academic presses in law (Cambridge, Chicago, Harvard, Oxford, Princeton, Yale).

Another 25% of the faculty quality rank is based on the per capita rate of scholarly impact for the top quarter of each faculty based on citations to faculty work on the Westlaw JLR database as of August 2000. Finally, 50% of the faculty quality rank is based on the subjective academic reputation of the school based on a fall 1999 survey of academics conducted by U.S. News & World Report.

Each measure of faculty quality has advantages and limitations, but together they promise to present an informative picture. The rationale for the particular weightings, and the details of the study methodology, can be found in “Measuring the Academic Distinction of Law Faculties.”

So there you have it. The law schools with the best reputations are the law schools with law professors who write law review articles read by other law professors but that have little if any impact on the actual product of the U.S. legal system.

Then again, I am on record expressing my opinion that the most reputable of law professors at the most reputable of law schools have, given the opportunity, shown themselves to the worst of lawyers.