Are we irrelevant?

Perhaps you saw Adam Liptak's piece in the NY Times about the disconnect between legal scholarship and judicial decisions (or perhaps not, it's behind the TimesSelect wall). Liptak observes that "Articles in law reviews have certainly become more obscure in recent decades," that "scholarship no longer had any impact on the courts," and that "the legal academy has become much less influential."

There's certainly some truth to this critique. When I read law review articles from about the 1950s, it's amazing how much influence some of them had. Professors wrote articles and the law changed. For some reason, a great deal of the legal academy deliberately ran away from the goal of having any influence on the law.

But not everybody. The law and economics movement has had tremendous influence. So have the legal feminists. And occasionally individual articles just nail an issue. I'll always remember the very first case I worked on -- a tragic case in which my client (the United States) had negligently failed to warn a woman that she had breast cancer, resulting in her death. But, according to the factual findings of the district judge, there was a 20% chance that she would have died anyway, even if she had been warned. How should that affect her damages? The classic rule was that if the lost chance is less than 50%, it has no effect on damages, but if it's greater than 50%, the plaintiff should recover nothing. In 1981 Professor Joseph King wrote an article in the Yale Law Journal called "Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences," which said that the better rule would be, in all cases, to multiply the plaintiff's total damages by the lost chance of recovery. I can't tell you how many different state courts said, "we used to follow the classic rule, but Professor King's article convinces us to follow his rule." Wow. That guy had influence.

I don't understand why professors wouldn't want to have that kind of influence, and I think the bulk of us still do want that. At this point, I agree with Michael Dorf, who said that "The claim by judges that they have no use for law review articles seems to me an anti-intellectual know-nothingism that is understandable but regrettable." The fault lies on both sides. We need to make our articles shorter and more accessible (kudos to law journals for encouraging this recently), and judges need to look for them.