Why Law Professors Should Write More for Legal Decision-Makers and Less for Themselves

In a law review article "Why There Should Be Fewer Articles Like This One: Law Professors Should Write More for Legal Decision-Makers and Less for Themselves," David Hricik and Victoria S. Salzmann write:

If you are reading this Article, you probably think law professors are smart because you likely are a law professor..

Footnote 4 states: See Michael D. McClintock, The Declining Use of Legal Scholarship By Courts: An Empirical Study, 51 Okla. L. Rev. 659, 659 (1998) (recognizing judges' and practitioners' complaint "that academia is losing touch with the practice of law").

The authors write: Much of the pertinent literature incorrectly assumes that law professors are in no better position than lawyers or judges to write "engaged scholarship" (a term defined with care below).

Of "engaged scholarship," the authors write: Engaged scholarship addresses problems related to the law, legal system, or legal profession that affect a significant portion of society or the legal
community. n13 It identifies current legal issues, offers possible
solutions to legal problems, or meaningfully informs decision-makers on the issues before them. Judge Edwards noted two characteristics of this type of scholarship: it is "prescriptive" in that it solves legal problems, and "doctrinal" because it offers solutions without ignoring the existing sources of law that "constrain or otherwise guide" decision-makers. n14 Engaged scholarship tackles any number of issues, but does so with an eye toward improving the process of law or educating those who affect it.

Of the decline in influence of law reviews, the authors write: As a result, law review articles are in danger of existing in a medium that is "largely opaque to the judge and practicing lawyer." n33 Too much of legal scholarship is becoming "law professor scholarship," a discourse among theorists with little practical application.

Turning to the patent grant rate discussion, one notes that the patent quality issue is one that affects a significant portion of society or the legal community. If (hypothetically) BlackBerrys were no longer available because of the enforcement of a (hypothetically) bad set of patents, this result would capture the attention of a significant portion of society, including those in Congress and a variety of lawyers. However, the response of the legal academic community was to exaggerate the patent grant rate numbers based on an analysis that was deficient both numerically and legally. Lemley and Moore incorrectly stated that Clarke made a certain assumption, even though Clarke did not. Wagner adopted the 95% patent grant rate number in a law review in November 2005, three years after even the authors Quillen and Webster had backed off from that number.


While Hricik and Salzmann may have a point about the remoteness to real world issues of many law review articles, they neglect to point out that some law review articles that are "engaged" to important issues are simply poor in quality. In the particular case of the patent grant rate issue, this is a bit ironic, because the poor work quality asserted by legal academics against the PTO is in fact manifested by the academics themselves.