How has it come to pass, we wonder, that someone feels the need to actually say this in a law review article?
Well, we don’t really wonder. We already know.
The legal profession is fractured from an absurd stratification. “Trial lawyers” are an endangered species confined, at this point, primarily to criminal defense and prosecuting. The former being the most important and necessary work and also held in the lowest regard by the rest of the profession.
Let that sink in.
The highest regard is reserved for “lawyers” who have never tried a case or had an actual live human being type client. Lawyers, in other words, who are not lawyers at all in the sense the term has been traditionally understood. They include law professors, solicitors general, federal (not state) prosecutors, and large firm appellate advocates. As we said, some of the highly regarded – federal prosecutors – have actually tried cases, but among the rest this is regarded as mark of lower status. We are not making that up. The prosecutors who have tried cases are considered suitable for trial level federal courts (i.e., District Courts), but not federal appellate courts. It’s not an exaggeration to say that trying a case to a jury, to these members of the profession, is to have dirtied your hands and sullied your credentials.
Federal prosecutors who have tried cases aside, these highly regarded members of the profession now have a near monopoly in federal appellate courts – that is, all the federal circuit courts of appeal and the SCOTUS. Which is to say that all of the judges, law clerks and for the most part the advocates in these courts come from the most highly regarded ranks of the profession. Or at least those ranks are highly regarded by People Who Matter.* So for the most part when an appeal is heard in a federal appellate court, no one arguing it or hearing it has ever tried a case.
State courts do not follow this pattern at all. Well, maybe slightly, in some states, but the contrast in what might be called “professional diversity” between state and federal appellate courts is extreme.
For sane people, the professional diversity of the state courts is obviously desirable for the federal appellate courts as well. But in a professional (and more generally, too) increasingly shallow culture, prestige-obsession governs to the point where prestige reaches an upper limit, and it is virtually all that matters.
And then eventually someone has to remind the audience for which law review articles are intended – that is, the prestige-minded and highly-regarded – that lesser prestige state courts have a far greater impact on the country than federal appellate courts do.
The danger, of course – well, one danger anyway – is that the impact on the
rabble country, to the highly regarded, is as much a trifle as the state courts themselves.
In the end, we don’t know whether it’s a Good Thing or a Bad Thing that someone actually came out and said to a law review audience that “state courts matter”. It’s indirectly revealing, which is always a good thing, we suppose. But what it reveals is also lamentable: an entrenched snobbery that increasingly marginalizes the legal profession.
A marginalized legal profession “matters”. In the genuine sense, not the shallow sense.
* People Who Matter is probably a subject for another post, or lengthy screed as the case may be.