International Law Scholarship: More or Less Relevant?
Adam Liptak’s column yesterday on the relevance of legal scholarship (note that TimesSelect material is now available to anyone with an .edu email address – how long before they wave the white flag on this undertaking?) has predictably generated follow-ons in the legal blogosphere. Jack Balkin does an excellent job putting the story in context, including the context of a world with blogs. I’m mostly with Eugene Volokh in believing that legal scholarship surely has value beyond impact on the courts. As law scholars come increasingly to identify themselves as academics, they are probably more interested in getting cited by other scholars (perhaps especially by scholars in other disciplines) than by judges. One might also note that the transmission belt of ideas can obscure the theory-based origins of policy applications. Some theoretical work by academics can get translated by think-tank types and other academics for delivery to decisionmakers, who themselves won’t necessarily be aware of the geneaology.
But the question for this venue would be: is IL scholarship more or less relevant than in other legal fields? Leaving aside the doctrinal twist of article 38 of the Statute of the ICJ, and the fact that you can’t usefully put Lexis to work here, I think the answer at one time was, clearly less, at least with respect to IL scholarship out of US law schools.
Today, I’d have to think it is, clearly more, for two reasons. One is the clean-slate nature of so much that is going on today on the international legal landscape. Questions of institutional design and foundational premises inevitably empower academics, who are trained to work with the big picture. Scholarly work, even quite theoretical scholarly work, has more potential to orient the policymakers in that context (compare that context to one involving some well-plowed doctrine of constitutional law).
Second, because international law has been the subject of so much less judicial refinement scholarly work tends to fill the void (hence the place of commentary as a secondary source of the law). I taught international delegations in my foreign relations law course earlier today. No cases to work with, so it was Curt Bradley’s article on the subject and a collection of think pieces from one of the Duke gatherings on the subject. Better stuff, frankly, than what one would typically get from the courts.