Oh, the Treatise!
In his foreword to the Michigan Law Review’s 2009 Survey of Books Related to the Law, my former Duke colleague Erwin Chemerinsky posed the question: “[W]hy should law professors write?” In answering, Erwin took as a starting point the well-known criticisms of legal scholarship that Judge Harry Edwards published in this journal in 1992. Judge Edwards indicted legal scholars for failing to engage the practical problems facing lawyers and judges, writing instead for the benefit of scholars in law and other disciplines rather than for their professional audiences. He characterized “practical” legal scholarship as both prescriptive (aiming to instruct attorneys, judges, and other decisionmakers) and doctrinal (dealing with the sources of law that constrain and guide practitioners, decisionmakers, and policymakers). Having served on the law faculties at Michigan and Harvard before joining the Court of Appeals for the District of Columbia, Judge Edwards was well positioned to critique the direction of legal scholarship, but he is not the only judge to have done so. In recent years Chief Justice Roberts has made clear his opinion of most academic writing, and Justice Kennedy has pointedly expressed his concerns about the diminishing relevance of law reviews to appellate court decisionmaking.