Law Review Articles That Backfire

Other articles in this Symposium have chronicled the real-world triumphs of legal scholarship. I have sadder tales to tell. I would like to discuss law review articles that have had an apparent influence on the course of legal development, but not in the manner that the author intended.

Many of the readers of this Symposium may have their favorite examples of this phenomenon.1 Such misfortunes can befall anyone; both of the instances I will describe involve a highly respected constitutional scholar, Professor Henry Paul Monaghan of Columbia Law School. They illustrate two mechanisms by which good scholarship can lead to bad law. In the first instance, one of Professor Monaghan’s proposed reinterpretations of a troubling Supreme Court decision inspired an even more troubling line of cases. In the second, the Supreme Court adopted a theoretical approach that Monaghan had advocated, but in an oversimplified form that yielded results far different from those he recommended.