When Are Arguments from Scholarly Legal Authority Legitimate?

Judges often cite legal scholars. Sometimes they defer argumentatively to scholars as authorities. Such arguments, we claim, are neither sound nor legitimate. Legal scholarship serves two functions. One is modest and descriptive: reporting the undisputed content of legal sources and existing consensuses on some point of law. Such matters can lend themselves to authoritative settlement. But the core function of legal scholarship, involving the substantive reconstruction of suboptimal legal sources, is normative. And on such matters, we argue—by discussing the structure of arguments from authority and what counts as genuine authority—there is no room to treat scholarly pronouncements as authoritative.