From Law Review to Law

Written by Katie Porter

Law scholarship has a proud tradition of actually influencing the law. This remains true today, notwithstanding proclaimations of some in the legal academy who make proclamations about how their work is “highly theoretical” to hide shortcomings in translating their ideas in meaningful ways to policymakers and everyday people. Right now pending before Congress is an excellent example of how academic work, published in a law review, can become real law. A few years ago, Elizabeth Warren and Oren Bar-Gill authored an article in the Penn Law Review called Making Credit Safer. It was a “real” law review article in the best and worst sense of our scholarly form: 97 pages, 328 footnotes, exploring every nook and cranny of an idea. The idea, that America needs an agency devoted to protecting consumers from financial products, is about to become law, having been included in both the House and Senate versions of the financial reform bill.

For progressive law scholars, this example of how to move an idea from a law review to a law offers some valuable tactical lessons:

First, be persistent. Even the best ideas, even under the most opportune circumstances, take time to catch on. Elizabeth Warren first wrote about a Consumer Financial Protection Agency in the summer of 2007. Three years later, it’s going to be become law. But I think a decade is a more realistic time frame for advancing ideas, especially those that sharply refute the existing paradigm. Write about your idea, and then write about it again, and then write about it some more.

Second, the law review piece is crucial as it gives your idea serious scholarly credibility. But you are doing a disserve to your idea if you stop there. Few people have waded through the 97 pages of the Penn Law Review, but many Congressional staffers, lobbyists, advocates, and voters have read the 10 page piece called Unsafe at Any Rate that Elizabeth Warren published in Democracy. Blogs and op-eds are useful but I think a 2-10 page written published piece is best. A one-page bullet point version can also be useful for circulating to legislative staff.

Third, be excruciatingly generous with your idea. You want others to start writing about it and for it to become the conventional wisdom. You’ll likely end up with credit for the idea, and even if you don’t get what you deserve, you’ll have made the world a better place when your idea becomes law. Elizabeth Warren asked a half-dozen people to write 2-3 pages on her idea, including some folks she thought might have some critical feedback. The result was that all of us who participated in that project now have some ownership of the idea, which means we too are writing and talking about this idea, helping to figure out its details and actively engaged in the process of watching it become law.

Other ideas for strategies to use in helping to put academic work into the policy stream???