Over at Prawfs, my co-author Eve Brensike Primus answered a Q&A on the influence of legal scholarship among judges:
[Question by Jack Chin]: What advice do you have for scholars who want their work to be influential in the courts?
If you want to be influential, you have to address important legal subjects that courts are grappling with, write clearly and concisely, effectively communicate that you fully understand the legal landscape of where the doctrine currently is, and then provide a balanced, nuanced, and well-supported argument for why your proposed step forward is the right move to make.
This answer makes a lot of sense, and I would amplify one point: Judges tend to ignore scholarship that doesn’t appreciate the judge’s sense of the possible vs. the impossible. Judges are practical people, and most judges have a sense of the limitations of the judicial role. They operate in a world of precedent. There’s wiggle room where the doctrine is murky, to be sure. And at the Supreme Court level the Justices can overturn precedents. But for most judges, the wiggle room is relatively confined and best resolved within a broader set of principles already recognized in the law (at whatever level of generality). Further, judges tend to think downstream. If they are Supreme Court Justices, they worry about creating standards that lower courts can’t administer or rules that miss the mark of the problem that are trying to solve. If they are lower court judges, they worry about getting reversed. The result is what you might think of as a judicial mindset — a way of thinking about what ways can resolve open or difficult legal questions in light of the limitations imposed on each judge.
My sense is that a lot of legal scholarship fails to influence courts because it ignores that judicial mindset. When describing the problem, the scholarship isn’t particularly interested in existing doctrine. And when it recommends a solution, it tends to ignore that judicial sense of the possible. Instead, it assumes an ideal world with no limitations — a world in which no precedent gets in the way, no decisions can be reversed, and all vague standards will be administered perfectly in practice.
On one hand, it’s easy to see why professors take that approach. Academics get points for theoretical consistency and for proposing dramatic reforms. Recognizing and speaking to the judicial mindset can come off as less theoretical and overly cautious. But on the other hand, it’s easy to see why judges easily pass over scholarship that doesn’t grapple with the worldview that the judges bring to their work.
UPDATE: Via Twitter, some feedback from the judiciary. First, from Judge Stephen Dillard of the Georgia Court of Appeals: “well said.” And from Justice Don Willett of the Supreme Court of Texas : “bull’s-eye.”