Impact of Scholarly Legal Analysis on Law Reform II

This is a brief follow-up to my post a few days ago on the the impact of scholarly legal analysis on law reform.  This is not directly about medical futility.  But it is about my role in this and other health law and bioethics debates.  The latest issue of the University of Queensland Law Journal includes an article by Harvard Law Professor Mark Tushnet titled "Academics as Law-Makers?"  Tushnet observes that:

• "Legal academics can help make the law . . . they can clarify the concepts used by judges, thereby introducing better ways of understanding what the judges are already doing."  


• "Conceptual clarification is defensible on its own terms, but it may also have effects on outcomes. . . .   [A]cademic legal writing helps judges reach the results that they think appropriate."


• "United States legal academics taken as a group overestimate their likely impact on the development of the law.  Many think that their articles will directly influence judges and policymakers . . . [But] judges ideologies, predispositions, and attitudes are important and perhaps nearly exclusive determinants of what they view to be the 'right' result.  [P]olicymakers are influenced by ideology, politics, and the general cultural atmosphere . . . so much space occupied by things other than the ideas offered by legal academics . . . ."


• "[L]egal academics in the United States can be law-makers, to a modest degree.  'Modest,' though, is the right word . . . ."