[opiniojuris] Peter Spiro: International Law Scholarship: More or Less Relevant?

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Posted by Peter Spiro:
International Law Scholarship: More or Less Relevant?
http://www.opiniojuris.org/posts/1174417363.shtml


   Adam Liptak's [1]column yesterday on the relevance of legal
   scholarship (note that [2]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 [3]putting
   the story in context, including the context of a world with blogs. I'm
   mostly with Eugene Volokh in believing that [4]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 [5]article on
   the subject and [6]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.

References

   1. http://select.nytimes.com/2007/03/19/us/19bar.html?n=Top%2fReference%2fTimes%20Topics%2fPeople%2fL%2fLiptak%2c%20Adam
   2. http://www.mediainfo.com/eandp/news/article_display.jsp?vnu_content_id=1003556814
   3. http://balkin.blogspot.com/2007/03/judges-lose-cite-of-law-reviews-gain.html
   4. http://volokh.com/posts/1174321336.shtml
   5. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=369020
   6. http://www.law.duke.edu/cicl/workshop_papers.html