In Praise of Law Books and Law Reviews (and Jargon-Filled Academic Writing)

INTRODUCTIONWhen I served in the federal government during the first term of the Obama administration, some of my colleagues who had recently been academics wondered, with something like despair, how they could ever return to academic life. They asked: "After this, what could possibly be the point of going back to write academic articles?" When I asked them to elaborate, one of them sent me this quotation from Theodore Roosevelt:It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.1It is a powerful passage, and it can easily be enlisted against those who write law books or for law reviews. Wherever they are, academics are not in the arena. Their faces are never marred by dust, sweat, or blood. (If so, they are in the wrong profession.) They do not really know either victory or defeat. (Having an article accepted or rejected doesn't really count, nor does a citation or two from the Supreme Court.) Few people may read what they write, no matter how much they obsess over the title, abstract, or concluding paragraphs.In their academic books and essays, professors and students spend a lot time pointing out, sometimes with sadness, sometimes with outrage, "where the doer of deeds could have done them better." In one sense, they may know the triumph of high achievement (their work might be superb), but insofar as they write academic books and law review articles, they cannot be said to "strive to do the deeds." Writing an abstract, or finishing footnotes, are deeds-but hardly "the deeds."As one of my White House colleagues asked another, who announced that he would return to the university after just one year of public service: "So you're going to go back, and do your . . . 'studies' "?But there is a countervailing argument, and it comes from John Maynard Keynes:[T]he ideas of economists and political philosophers, both when they are right and when they are wrong, are more powerful than is commonly understood. Indeed the world is ruled by little else. Practical men, who believe themselves to be quite exempt from any intellectual influences, are usually the slaves of some defunct economist.2Keynes's claim seems to one-up Theodore Roosevelt's. It's the ultimate revenge of the nerds. Those "men in the arena"? They're slaves of the theorists. Those who do the deeds? They're marching to the beat of someone else's drum. The drummer, it turns out, is an economist or political philosopher (or perhaps an academic lawyer). In the end, it's the critic who counts. From the sidelines, he calls the tune.Maybe Keynes is right. But his argument is not only unbecomingly selfserving; it is also very far from self-evidently correct. Is he really claiming that ideas rule the world? Keynes himself had a lot of extraordinarily influential ideas, and so in his own case, that claim has a degree of truth. But are practical men-Theodore Roosevelt, Ronald Reagan, Barack Obama-really best seen as slaves of defunct economists? And if so, are lawyers and judges slaves of defunct law professors? And what does "defunct" mean, exactly? Might today's lawyers and judges be acting under the influence of theorists whose ideas are outmoded? Are they marching to the beat of academic drummers from the 1950s and 1960s? Do books and law review articles create the music to which the legal profession is marching-even if most lawyers never read those books and articles? …