How Legal Scholarship Can Reveal the Difference Between the Law as Written and the Law as Applied
Is there one piece of legal scholarship which you read years ago that sticks with you? For me it was an article about how a person’s right to legal name changes can be hindered by clerks who may misstate the law or a person’s options. The article is called Changing Name Changing: Framing Rules and the Future of Marital Names, and it was written by Elizabeth F. Emens and published in the University of Chicago Law Review in 2007.[1] I believe I read it around 2015, and I remember being fascinated by the concept of “desk-clerk law.” In case you’ve never heard of it, “Desk-clerk law is what the person at the desk tells you the law is.”[2]
I think about this article when I am helping students to choose a topic on which to write a piece of legal scholarship. I usually suggest that they read the news and look for a hot-button issue, or look for a circuit split or other split between courts. They can also compare a legal issue in two or more jurisdictions. My students often want to write about what they believe the law should be, and I end up advising them that unless they are an expert, that is one of the hardest types of law review notes to write. It is much harder to write a piece of idealistic legislation from scratch than to look at the arguments on both sides of an already developed legal issue and write about which side’s argument is better. When considering the possible structures that my students’ notes can employ, I often wish they had the resources to write an article about how the law works for ordinary humans, and how that may differ from the law as perceived by legislators, lawyers, and academics.
I know Professor Emens’ article would not be easy to emulate. It was written by a professor, not a student, and the bulk of the article has a more traditional approach: it describes the law as it is and as it should be, requiring a level of expertise that most students do not possess. Also, Professor Emens had help; she specifically thanks her research assistant for making the many phone calls and emails required to find out what county clerks would say in answer to questions about the options for marital name changes. Armed with their quirky, wrong, and often sexist answers, she was able to write about the experience of the average citizen trying to exercise this small legal right. In 2021, the article is both long out of date, and even more timely. Since 2007, marriage laws have become more inclusive in the U.S., making it even more likely that a clerk’s personal views on marriage may intrude on a person’s choices. As I was re-reading the article I was struck by how funny it is. The quotes from the misguided clerks made me laugh out loud, but I also appreciated what I take to be the author’s dry humor, “Clerks often provided their own views spontaneously.[3]”
Perhaps the most compelling part of the article is that it’s not about the Constitution or about how the Supreme Court should decide their next case. It was memorable because it was about real people’s small legal problems and everyday interactions, and I sometimes feel that not enough attention is paid to these types of issues in legal scholarship. I hope I will read more articles like this.
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[1] Elizabeth F. Emens, Changing Name Changing: Framing Rules and the Future of Marital Names, 74 U. Chi. L. Rev. 761, 762 (2007), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=940449.
[2] Id. at 765.
[3] Id. at 825.
I agree that there should be more articles written about everyday interactions and application of the law. On one hand, from the point of view of business development that would certainly make sense because for the majority of lawyers it’s the small legal problems that make up the bulk of most prospective clients’ concerns. On the other hand, legal publishers may not be willing to be purveyors of such articles because they will argue that their customers and readers are learned lawyers, judges, academics etc. who wouldn’t be interested.
For me it’s John Tehranian’s “Infringement Nation: Copyright Reform and the Law/Norm Gap” about the US’s statutory damages regime for copyright. He calculates that in the course of an average day and assuming “the worst case scenario of full enforcement of rights by copyright holders and an uncharitable, though perfectly plausible, reading of existing case law and the fair use doctrine”, he incurs approx $12.5M USD in liability under the existing statutory damages regime. Every single day.
This idea of a legal regime which imposes huge liability on people just for doing normal every day things which almost nobody would consider immoral or “wrong” raised so many questions in my mind. Is it just to impose huge liability on people for doing things that almost everyone agrees are fine? If everyone did actually enforce their rights, would the whole system collapse? How could the court system possibly handle the strain? What’s even the point of a legal regime that only works because almost nobody ever bothers to use it?
Of course, the copyright regime is a bit more nuanced than that. And those questions could come up in many other contexts. But for me, that was the article that got me thinking about those questions.