Tuesday, July 19, 2011

Roberts' Ill-Informed Attack on Legal Scholarship

      Richard Nagareda was a well loved professor at Vanderbilt University Law School, a nationally recognized expert on class action lawsuits, and a thoughtful and highly accessible source for journalists until his untimely death last October at age 47.
      Nagareda achieved a measure of posthumous influence, however, in the Supreme Court’s decision this past term to kill the giant sex discrimination class action against Wal-Mart. In his opinion for the 5-4 majority in Wal-Mart Stores, Inc. v. Dukes, Justice Antonin Scalia cited one of Nagareda’s final publications to deliver the fatal blow.
      “Any competently crafted class complaint literally raises ‘common’ questions,” Nagareda wrote in “Class Certification in the Age of Aggregate Proof,” 84 N.Y.U. L.Rev. 97 (2009). “What matters to class certification,” he continued, “is not the raising of common ‘questions’ . . . but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.”
      Scalia used Nagareda’s point to show that the potential class members in the Wal-Mart suit had too many “dissimilarities” to bundle their claims into a single class action. Nagareda’s scholarship was important enough for Justice Ruth Bader Ginsburg, in her dissenting opinion, to mine one of his earlier articles to argue for allowing the suit.
      As former law professors, Scalia and Ginsburg naturally appreciate legal scholarship. Both wrote a few law review articles themselves in earlier days, and both cited law review articles in other opinions during the past term. So did the other former law professors on the court — Anthony M. Kennedy, Stephen G. Breyer, and Elena Kagan — as well as the non-scholars Clarence Thomas and Samuel A. Alito Jr.
      But not Chief Justice John G. Roberts Jr. In his eight majority opinions and three dissents, I spotted not a single citation to a law review article. The omission is apparently not coincidental. Roberts, it seems, has a low opinion of legal scholarship.
      The normally circumspect Roberts unloaded on law professors in answering a question at the recent conference of federal judges in the Fourth Circuit. “Pick up a copy of any law review that you see,” Roberts said, “and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”
      Roberts’ comment at the June 25 session stirred a vigorous on-line debate. Sherrilyn Ifill, a law professor at the University of Maryland, took strong exception in a July 1 post on the legal blog Concurring Opinions. “More often than not,” Ifill wrote, “law scholars today are deeply engaged with helping legal decisionmakers grapple with difficult legal issues. Our scholarship – if read – can be very helpful to judges and their clerks as they navigate the shoals of complex legal decisionmaking.”
      Ifill made her point with specifics. She cited recent law review articles on such questions as the applicability of the Fourth Amendment to GPS surveillance, the reliability of eyewitness identification, and the increased use of alternative dispute resolution. She noted that the D.C. Circuit cited the GPS article in its decision requiring a search warrant for GPS tracking. The Supreme Court has agreed to decide the issue in a separate case next term.
      Among more than a dozen commenters, some agreed with Roberts and some with Ifill. Commenters had the same range of opinion after a July 8 post on the Adjunct Law Prof Blog. But several commenters on both blogs suggested that both Roberts and Ifill were misunderstanding the role of scholarship. “I've never heard anyone criticize [Stephen] Hawking's work because it doesn't help them when they want to fix their car,” one commenter said.
      Jonathan Adler, a conservative professor a Case Western Reserve University Law School, agrees. “There’s some truth in what Chief Justice Robert says,” Adler remarks, “but it’s a mistake to say that the only legitimate purpose of legal scholarship is to inform courts on decisions.”
      Lurking in some of the comments is an additional, political controversy: the view of legal academia as dominated by liberal, socially activist professors more interested in causes than in law. “I just wish the law schools would return to teaching the basics of reading the law,” an 80-year-old retired lawyer commented.
      Whether or not Roberts holds that view, Ifill matches the conservatives’ stereotype of an activist academic: an alumna of the NAACP Legal Defense Fund whose courses include a seminar on “Reparations, Reconciliation and Restorative Justice.” Conservatives might also dismiss the articles she cites as ideologically liberal. But the authors explored in concrete situations how to give effect to provisions of the Bill of Rights that are honored by conservatives and liberals alike. The growing number of conservative legal academics do the same.
      So did Nagareda. When I interviewed him in 2008 for my report “High-Impact Litigation,” he was admirably evenhanded in describing the importance of and the problems with the present-day civil litigation system. Roberts, on the other hand, was neither evenhanded nor even well informed in his comments. After blithely dissing legal scholarship, the chief justice acknowledged that he would be hard pressed to recall the title of the last law review article he read.
      Postscript: An empirical study by two professors, Lee Petherbridge of Loyola Law School in Los Angeles and David L. Schwartz of Chicago-Kent College of Law, finds that the Court has cited law review articles in roughly one-third of its decisions over the past 60 years. The study, "An Empirical Assessment of the Supreme Court's Use of Legal Scholarship," currently in draft, can be found here.


  1. I'm afraid I agree with the Chief on this. Identifying a few articles that might be pertinent to the real world, or helpful in a practical way, is simply cherry-picking. These are, by and large, exceptions that prove the rule. If you stop by a law library and pull an array of recent law review volumes, you are likely to find many more of the kind that the Chief describes than there are ones like you and Prof. Ifill describe.

  2. You can walk by shelf upon shelf of unread law reviews in any legal library in America. These shelves represent a great deal of wasted scholarship and huge mount of wasted paper. Also, having known Professor Nagareda, I will withhold my comments.

  3. As former law professors, Scalia and Ginsburg naturally appreciate legal scholarship. Both wrote a few law review articles themselves in earlier days.
    thanks Kenneth Jost