Nine years ago (2011), Chief Justice John Roberts (pictured below, left) presented this devastating critique of legal scholarship. Among other things, the Chief made this wisecrack: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” (The Prussian philosopher is pictured below, right.)
Five years ago (2015), law professor Orin Kerr wrote up this tongue-in-cheek scholarly reply to the Chief Justice’s critique. In brief, Professor Kerr conducted an extensive review of Kant’s original works of scholarship, concluding that “Kant never wrote about evidence law.”
Last year (2019), I responded to Kerr’s reply to the Chief Justice’s original remarks about Kant’s purported influence on the law of evidence. For my part, I propose a different way of responding to the Chief Justice’s critique of legal scholarship. Instead of searching through old tomes in dark and dusty libraries for a direct correspondence or causal relation between Kant’s work and evidentiary approaches in 18th Century Bulgaria, I propose the following thought experiment: What if Kant were an 18th Century Bulgarian law professor?