Thursday, November 5, 2015
David Pozen (Columbia), The Influence of Juridical Cant on Edificatory Approaches in 21st-Century America, 19 Green Bag 2d ___ (2015):
This essay reframes the debate over the "growing disjunction" between legal scholarship and legal practice. Law review articles continue to make the world a better place, the essay stipulates. But are judicial opinions becoming less useful to students and scholars? A rigorous analysis and concrete prescriptions follow. ...
[I]t is all too clear that the judicial craft has become unmoored from real-world problems and thus in need of reform. Before we can solve this crisis in our profession, though, we need to comprehend it better. Why has the work of judges grown so distant from the practical concerns of students and scholars? ...
[I]t would help if judges started hitting the road more often, getting themselves out of their marble monasteries and into the real world. For instance, a stray public remark by Chief Justice Roberts has already sparked exciting new research into “the influence of Immanuel Kant on evidentiary approaches in 18th century Bulgaria.” The Chief Justice’s gutting of the Voting Rights Act, by comparison, has yielded little evident benefit for legal theory or pedagogy.
If we are truly to close the gap between the judiciary and the academy, however, neo-Kantian historiography may not be enough. No one doubts that any law professor in the country could, in his own estimation, competently argue a case before the Court. But how many Article III appointees could hack it in the most critically engaged and civic-minded institutions elsewhere in our legal system? Big problems require bold solutions. Is it time we start asking judges to attend faculty workshops?
See also PrawfsBlawg, Judges: Ask Not What Legal Academics Can Do For You, But What You Can Do For Legal Academia!