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January 17, 2006

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» Does Scholarly Writing Have to Be Tedious? from Concurring Opinions
Over at the new and very engaging blog, LawCulture, Rosa Brooks writes: As a junior professor, I dutifully churned out law review articles to fill my tenure file. Some of those articles, I think, may even have contained a few... [Read More]

» Wall Street Journal on Blogs and Law Reviews from Opinio Juris
Brandt Goldstein at the Wall Street Journal has an interesting article today addressing the current debate in the legal academy r... [Read More]

Comments

JustaThought

The problem with this is that books by law professors tend to be a bad place to put new ideas. This is just an observation, but can you name a law professor book that isn't a treatise or a piece of legal history, and that didn't begin life as a law review article (like the problematics of moral and legal theory) that has any type of influence? Of the top of my head, I can't.

The reason why, I think but don't know, is that books are more aimed at generalists and are not searchable through lexis or westlaw by other scholars. The aiming at non-law people has upside, but it does take away from the ability to discuss things at a high level. The non-searchability problem is real, especially if the intention is for an idea to get noticed by law profs outside your particular field.

So, here's a thought -- join and work on a peer-reviewed journal. Or better yet, create one. International law now has one domestic peer-reviewed journal (AJIL) and tons and tons of student-journals. If you don't like those (and I can understand how you feel), and don't think they help scholarship, why not focus on developing such a journal. It could be good, focusing on essays and empirical scholarship in the field.

Bruce

More power to you. But it seems your objections to law review pieces have to do with the involvement of students as editors, rather than the nature of the format itself (chapter-length, wonky argument) or the trivia that results from the pressure to publish. Are you opposed to writing in that format, no matter who's editing it? If not, why not forsake law reviews and just post your finished pieces on, say, SSRN?

Rosa Brooks

Thanks for the comments. My objection is not to scholarly articles as such, needless to say, but to the peculiar ways in which law review articles have evolved. "Justathought" is right-- maybe the solution is a new journal, like Green Bag but permitting somewhat longer pieces (Green Bag, which I like very much, has a strict 5000 word limit. I tend to think shorter articles are better than longer, but 5000 is a bit too short for some kinds of arguments).

Bruce, I've been slow to catch on to SSRN, but that's a good thought too.

Lurking in the background here, of course, is a far broader set of problems and questions: what do we do (in all disciplines) about an academic culture that creates such strong incentives to publish, publish, publish, regardless of whether you have anything much to say? What is the role of scholarship in a culture that is increasingly anti-intellectual, in which fewer and fewer people read at all, much less read serious, scholarly works? Who are any of us writing to, and what for?

But that's another post, for another day.

Marty Lederman

Rosa: Bet you didn't consider this: The reason you shouldn't stop writing law-review articles (apart from the fact that you're good at it) is that it will redound to the detriment of the rest of us still-untenured bloggers! (As in: "Yeah, sure the scholarship is top-rate; but the guy blogs, as well --- How do we know he won't turn out to be another Rosa Brooks?") See http://prawfsblawg.blogs.com/prawfsblawg/2006/01/law_reviews_103.html

;-)

Tom

I agree heartily with the post. The problem is, as these comments indidcate, that too many people take a very narrow view of "scholarship." Why should law review articles be the be all and end all?

Ethan Leib


Marty:

Are you in the academic game full-time (this is not meant to be snide; just not sure)? What I'm suggesting at Prawfs is not all that far-fetched. Law schools surely consider at tenure time whether the person will continue to produce. And they don't usually mean blog-posts and op-eds. And to the extent that a new model arises of young people who write what they are supposed to until tenure, when they turn to popular writing more or less exclusively, that could affect those of us who like to to both. Rosa's talk of books, of course, complicates this picture. But we are debating that aspect at Prawfs.


Ethan

AnonProf

Of course, absolutely, without question -- you should write books, Rosa! That's what being a true scholar is all about. And just as surely, you should give up the Law Reviews cold turkey. They are the minor leagues, books the majors. And the minor league umpires simply stink.

I'm perplexed as to how one can think that an academic monograph is something other than scholarship. Indeed, a book is practically the definition of scholarship. A book sits on the library shelves for people to read. A book gets reviewed and discussed.

Pick up a book that is a set of cut and pasted law review articles sometime. Notice how each 100 page article becomes a 30 page chapter, becuase it's weighed down by voluminous but irrelevant footnotes. Why bother with that kind of padding, and with framing what interests you in a way that is "sexy" and "relevant" to 2Ls and 3Ls? Why not just think hard, take your time, and say what you have to say, as well as you can say it.

To be sure, some law professors think that books are not scholarship. They're wrong -- so badly wrong, in fact, as to border on silliness. But what happens when silly people make up the majority? You have a silly majority, which should be ignored until they eventually overcome their silliness.

Most people don't write books because they can't. Writing a book isn't easy. So if you can write a book, do so. If it takes you 10 years to write something really good, so what? That's one more good piece of scholarship than we'd have otherwise. Which is better, after all, a career producing 750 footnotes per year (even when you don't have anyting important to say, at least with the assembly line operating, Chaplin-like, at such a high speed) or a career writing, say, a couple of important scholarly books?

Ethan Leib

If anything I said suggested that books were not and could not be a real form of scholarship, I disclaim it completely. Indeed, I like writing books so I would never take such a position.

But, descriptively, books take at least as much heart-wrenching work and audience-tailoring as articles. It can be just as painful shopping around for a publisher. Maybe you have to include fewer footnotes. But really good books take an extraordinary amount of time -- delaying one's ideas from entering the public domain for years. And many academic monographs are so costly as to be much less accessible than articles on Lexis and Westlaw. These are relevant considerations for someone about to stop writing long-form law review articles. That's all.

And to the extent that these books that law professors produce will not be new scholarship but reproductions of other (or others') ideas catered to a popular audience, they can't replace scholarship.

Paul on Prawfsblawg has a very thoughtful post that I recommend on these matters.

Jim Maule

Rather than clogging your comment board, I share my thoughts on my MauledAgain blog.

URL: http://mauledagain.blogspot.com/2006_01_01_mauledagain_archive.html#113768770540111633

[it appears wordwrap is breaking the URL, so it may take a copy and paste to get there]

library

Why not write a law review article that offers something of value to practicing attorneys?

Would you rather write a 50 page article with a zillion footnotes that contains cutting-edge legal theory that will be read by a handful of people because the issues don't pop up in the real world or would you rather write a significant article that actually helps practitioners in a specfic area of the law and will be widely read?

I see way too many law review articles that offer absolutely nothing to most attorneys.

I believe medical periodicals have some practical value, why shouldn't legal periodicals?

Jim Cornehls

Rosa, Three cheers for you! While I grant you that law review articles stand at the pinnacle of the scholarly research dung heap, the problems you address are not limited to law review articles. They apply equally to scholarly articles in general.

I'm a lawyer and an economist and do my teaching and research in a multi-disciplianary School of Urban and Public Affairs. The refereed journals where our young, untenured faculty must publish (or perish) are characterized by a focus on articles that apply highly abstract and more and more complex methods and models to tiny and meaningless issues of no concern to anyone but the writer, the editors of the journal and perhaps, as you observe, the authors' mothers.

I'm long since tenured and have relegated the leading journals in my fields to the ash can. They are not interested in anything I want to write about because it doesn't conform to their model, and I am not interested in much of anything they publish so I suppose it's a mutual standoff. Further, they are generally useless in my teaching and I find myself relying more and more on in-depth news reports, blogs and non-refereed magazine articles.

The main problem, in my view, is that the process of "scholarly publishing" stifles the creativity of young scholars and channels their work into "acceptable" (read publishable) areas of inquiry.

A number of years ago, a leading economist reported that the American Economic Review, the U.S. gold standard for publication in the field of economics, no longer published empirical work about real world people that used real data. Instead, it had become an elitist forum for a small group of theoretical economists writing to each other. In a 15 or so year period it had published only one article that used empirical data, and it was about pigeons.

I say follow your heart and your mind and forget the law reviews.

Jim Cornehls

staffer

I think the criticism of law reviews is well-taken, but something should be said in their defense as well. To anyone who has attempted legal research, the uniform standards of law reviews are invaluable---the researcher knows where to locate the author's thesis, descriptive/empirical observations, and normative arguments. This saves untold time to the researcher or practitioner who has a narrower goal (e.g., discovering a new argument; gaining a background in an area of law; etc.) than reading the whole article.

Further, to someone who has edited a law reveiw article (or any article for that matter), it becomes clear why such thorough "subbing" (i.e., checking assertions and sources for factual accuracy) is important--often, authors can become lazy with their assertions of fact. Sometimes a quick attempt to verify an author's claim can reveal how incorrect that claim actually is. In this way, the rigorous strictures of substantiation improve the author's work, even though it is a headache for everybody involved. Of course, it's entirely possible that authors can get lazy with their claims because they know they will be checked and corrected by law reveiw staffs, but I still think that having an army of dedicated fact-checkers improves the world of scholarship.

Perhaps the real complaint, as has been said, is that it is students who are reviewing the articles. This creates countless problems both at the gatekeeping stage---what gets published---and at the editing stage. Ideally, maybe, law reviews would rely on their affiliated school's faculty to evaluate which articles are worhty of being published, and would allow the faculty to further make the substantive suggestions as to the strenghts of arguments, and stylistic comments as well. Students could retain their fact-checking role, ensuring to the fullest extent possible a compeletly accurate article.

Finally, the sad truth is that for many writers, the law reviews are and easy scapegoat: we aren't all as gifted writers as Cardozo, and often the stifling format of a law review does not really injure what would otherwise be a mediocre work. Think of it this way: how many times do you read non-legal scholarly works that, while blessed with a brilliant idea, or a chore to read. Academic writing has a purpose other than to entertain, and, as stated earlier, the cookie-cutter format makes articles easy to digest, if not always fun to read. Those that are dissatisfied should by all means turn to books or magazines; there's no reason to think that those fora are any less important. That said, isn't there some value to maintaining a forum specifically for academic writing that, if not as pleasing Shakespeare, can be as functional as an encyclopedia?

susan

I have posted your post. I have another liberating thought -- stop collaborating with U.S. News and World Report. Don't fill out USN&WR questionaires on the best law schools. Encourage lawyers not to fill out USN&WR questionaires. See http://lawprofessors.typepad.com/environmental_law/2006/01/another_thought.html

prof

You're brave! But you're right. We should all rebel.

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