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Justice Roberts and Legal Scholarship

In response to questions after giving a speech, Chief Justice Roberts expressed how he generally ignores legal scholarship.  According to the WSJ Blog:

Roberts said he doesn’t pay much attention to academic legal writing. Law review articles are “more abstract” than practical, and aren’t “particularly helpful for practitioners and judges.”

This view is frequently stated by practitioners and judges, but I find it kind of glib and dismissive.  It is true that a lot of legal scholarship is written for an academic audience, but a lot is written with practitioners and judges in mind.

It is easy to make broad generalizations about anything.   It is easy to just brush tens of thousands of articles and books aside in a sweeping stereotype.  Its kind of like saying all horror movies are bad because many are.  But then you might be missing some great movies like Psycho or The Shining.

Today, there’s a tremendous wealth of legal scholarship — much more being produced than ever before — and there’s stuff being written for many different kinds of audiences.  A lot is written for other academics.  Some legal scholarship appeals to lay readers.  There are also very useful articles for legislators, lawyers, and judges.

So to Chief Justice Roberts I say the following:  Today, there’s a lot of choice with almost everything, such as TV channels, magazines, and types of beer.  So, too, with legal scholarship.  Think of legal scholarship as akin to gelato in Italy, where there are a zillion flavors.  Take a closer look, and you’ll find your flavor.  But yes, between a law review article and a scoop of gelato, the gelato wins hands down.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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