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Supreme Court ignoring lawprofs

Not only did it (in the FAIR/Solomon case) unanimously reject the position taken by law school faculty in serried ranks assembled, but Chief Justice Roberts is hinting that he'll follow his predecessor Rehnquist in favoring arguments based on "authoritative" materials, such as statutes and precedent, over arguments relying on, say, law review articles. David Barron (LawCulture) is writing as if this is a bad thing, while Prof. Bainbridge takes a contrasting view. A commenter at Prof. Barron's writes:

I don't intend to sound too flip, but is it surprising that the court didn't rely upon outside sources such as law review articles, treatises and such, when the "scholars" who produce those materials were, in essence, the same people who were so clearly wrong on the constitutional and statutory issues in this case? Is there a reason why the court should rely upon politics disguised as scholarship?

The direction of legal scholarship has veered so far from what is helpful to courts that it is no wonder that it is ignored by actual decision-makers.

Also: Orin Kerr, Ethan Leib. And here's George Will, with guns blazing:

The institutional vanity and intellectual slovenliness of America's campus-based intelligentsia have made academia more peripheral to civic life than at any time since the 19th century. On Monday its place at the periphery was underscored as the Supreme Court unanimously gave short shrift to some law professors who insisted that their First Amendment rights to free speech and association were violated by the law requiring that military recruiters be allowed to speak to the professors' students if the professors' schools receive federal money.

Althouse, however, differs.



Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.