Public Law Litigation and Legal Scholarship

It is hard to turn around nowadays without hearing about the malaise in legal scholarship. For example, Richard Posner, a former president of the Harvard Law Review, announced in that periodical’s centenary issue that the Review “may have reached the peak of its influence-may, indeed, have started its journey down the mountain.” If even the august Harvard Law Review is sliding, one does sense an ancien regime aroma of decay. But Posner’s main message was that scholarship has become more diverse, and that the hegemony of traditional doctrinal analysis has been broken. More generally, the malaise is attributed to the supposed disappearance of doctrinal challenges due to the success of the doctrinal analysts of the past. Others have gone farther, however. They argue that “legal scholarship can best be described as an open scandal … since the late fifties,” and that, in the face of such events, “[t]hose with true intellectual courage would abandon the law and become full-time social scientists.” For these critics, it seems that only a social science diet can suffice.

In this atmosphere of self-doubt, it is appropriate to reflect on the value and continuing importance of successful legal scholarship of the past. In this Article, I will examine Professor Abram Chayes’s 1976 article The Role of the Judge in Public Law Litigation. Professor Chayes began the article modestly enough, observing that it was “a sketch of work in progress,” composed of “preliminary hypotheses, as yet unsupported by much more than impressionistic documentation.” Nevertheless, the article was promptly embraced as a classic, perhaps an icon. But icons usually influence only the previously converted; explaining the article’s success and assessing its lasting importance therefore remain challenging.