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In 1890, Louis Brandeis wrote The Right to Privacy. Within a matter of years, the courts began adopting his theory, creating a newly articulated legal right. This article likely represented the high-water mark of legal academia in terms of real world impact. In recent years, the academy has lost much of its relevance. Chief Justice Roberts ridiculed academic work, suggesting that legal scholarship has become esoteric and irrelevant. This should not be the case. The quality of legal scholars is higher than it has ever been—young scholars now often enter the academy with doctoral degrees in related fields. Likewise, technology has placed a world of information at our fingertips. Scholars can write pieces that react to quickly changing events at an unprecedented speed. Yet the speed of publication in flagship print editions has lagged behind the speech of scholarship itself. By the time a piece of writing is published, almost a year has passed since it was submitted. And if the piece elicits a response, it would come out a year after that. At this point, two years have gone by since submission and in the fast paced world of legal scholarship, a final riposte will often not be relevant. The end result is, that aside from the occasional citation, most scholarly debates are obsolete or irrelevant by the time they appear in print. This should be unacceptable given that our profession is, at its core, adversarial. Adversity can help make legal scholarship more relevant. Although a legal practitioner can easily research the case law, she cannot as easily identify the points of interpretive conflict. Now more than ever, it is essential for academic works to present the competing views of a theory in a package that identifies where the real points of reasonable disagreement lie. Yet this is a difficult task for any single scholar. All minds are subject to bias, even more so when the subject has already stoked scholarly passions. And even in the cases where a scholar can fairly present disagreements, there is simply no way ... |