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Thursday, December 28, 2006

Thoughts on the Ethical Practice of Legal Scholarship

Earlier Ethan asked what obligations we prawfs might have (positively or normatively). The post seemed to focus particularly on attitudes expressed by prawfs about the courts of the land or perhaps political institutions generally. An astute comment on that thread raised a related question, which I thought deserved its own separate thread: namely, what obligations prawfs owe each other in the legal academy? I suspect these obligations might be compartmentalized under scholarship, teaching, and service, and perhaps a fourth one for general menschiness around "the office," physically and virtually.

In this post, I'll speak about the obligations I try to fulfill in terms of scholarship, but I want to highlight that these are chiefly aspirational, and they are likely to reflect my ideals more than they reflect my practices. I'm afraid this gap is especially more pronounced in my earlier scholarship written while I was in law school or shortly thereafter, and I hope I've gotten better about this in the last few years. (To my victims, please accept my apology in the spirit of the season.)

One of my main goals when I'm critiquing someone else's scholarship is to ensure that I've fairly and accurately characterized the other person's work. To facilitate this, I try to make sure that I send drafts of my scholarship to anyone whose work I've critiqued before it is published. (I even try to do this with work I am planning on writing about on this blog.) Anytime I'm tempted to write out of rage that someone's argument is hopelessly misguided or fabulously wrong, I try to remember how much I cringe when my own work is criticized. I drop adverbs and instead use locutions such as the claims advanced in the article "seem mistaken or inaccurate" for the following reasons... This helps focus on, what Michael Walzer wisely described, the task of "getting the arguments right." It's not about making anyone look foolish or wicked. Sending drafts of your work to the objects of criticism is also likely to vastly improve the work because you're likely to get more useful comments than you would from others without the vested interest.

A related aspect of this test -- could I show it to the objects of criticism and be assured that they will think I've acted fairly, if not charitably, toward their work -- is avoiding the drive-by characterization of or criticism against a "school of thought." One often reads something like: retributivists believe X, or utilitarians believe Y, or Crits think Q and originalists think R. To my mind, this is largely unhelpful, except in very introductory materials. Far better to name names and cite particular works of scholarship than to make vague generalizations that are more often accepted by critics of the particular school of thought but rarely accepted by adherents to the relevant school of thought. Relatedly, avoid quoting a critic of X when trying to explain what X is. Better to find an adherent of X to cite and quote than someone who thinks X is wrong or inaccurate--that's because the critic of X is less invested in actually describing X accurately than an adherent of X is.

Finally, and this is something I remember seeing from an interesting meta-piece by Richard Delgado (entitled Rodrigo’s Book of Manners: How to Conduct a Conversation on Race—Standing, Imperial Scholarship, and Beyond, 86 Geo. L.J. 1051 (1998))--if you're focusing on the arguments of a person, and you're interested in moving the conversation forward, try to ensure that you've engaged the most recent work of the scholar on the particular topic, if possible and if relevant. It might well be the case that you've found a weakness in the argument that the person has already spotted and reconstructed to make stronger--or possibly the person has renounced that argument or claim altogether.

This advice might seem obvious to many law professors, but I think it's helpful for those entering the profession and it's even more important for law students to understand and internalize as they embark on their own scholarly projects during law school. (The truth is, I wish it were something lawyers would internalize more in their own advocacy, but it's quite difficult to achieve for a host of reasons.) I'd be very curious to hear what other practices or norms you think are relevant to improving the ethical practice of legal scholarship. In future posts, we might consider the obligations we have to other legal academics in the areas of service, teaching, and general menschiness.

Update:

Over at Co-Op, Dan Solove has written a response to the discussion started here. Here's my response to Dan S., which might clarify my views on related comments here. Solove suggests that I embrace a "love my opponent" approach and that he doesn't agree with me "that one must be very deferential to those making opposing arguments." Note, here are two misreadings of what I wrote. I didn't say anything about deference to those making opposing arguments. What I said was that our focus should be on fairness and accuracy in characterizing other people's work, especially those we would criticize. I indicated that our interlocutors should be deemed as potential teachers. But that doesn't mean that there is any deference to them or their arguments or any "love my opponent" mushiness going on either. My guess is that both Dave Hoffman and my positions are being mischaracterized so that Dan can stake out a more reasonable or attractive middle position...in the service of humor and some larger point.

As to practical matters, how much disagreement is there with the following three suggestions I made? (And this I raise in response to comments below by Ethan or Kate or Dave H. or Dan S., or anyone else):
1) have I characterized the work of the other person fairly and accurately such that if I were (notice the hypothetical here) to show the draft to the object of criticism she would say you have not distorted my meaning? (I mentioned that I actually try to follow up on this by showing the work to those I criticize before I consider it finished. I recognize that not all think it's obligatory, but is there any downside to doing so?)

2) Does anyone disagree with the claim that what I called drive by characterizations of schools of thought are less helpful to academic debate than engagement with specific claims by specific authors?

3) Does anyone disagree with the claim that one should try to engage, if relevant, the most recent work of the person on the given subject to avoid the potential pitfalls I spotlighted in my post?

If these three points are in contention, I'd like to know. I'd also like to know if there are any other constructive ideas about how to realize the ethical practice of legal scholarship. Tony's comment about theft of ideas probably deserves another thread altogether, but feel free to weigh in on that too.

Posted by Dan Markel on December 28, 2006 at 12:48 AM in Blogging, Dan Markel, Legal Theory, Life of Law Schools, Teaching Law | Permalink

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Comments

Great post, Dan. Lots of great advice, which I will and should try to take to heart.

Posted by: Rick Garnett | Dec 27, 2006 10:56:14 PM

Oh, I don't know. This all seems a bit prissy. What great theorist hasn't taken some liberties with broadstroking a school of thought? Doesn't this ethic of careful citation and naming names (isn't that a lot like dropping names?) just give the bluebook monkeys more to bother us about? If only I could get the people I criticize to read my work carefully, I might be more inclined to try the tactic. But most people are busy and aren't likely to care much about me. Don't get me wrong -- I like the notion of this ideal conversation where everyone is generous and perfectly engaged. And I fully agree that we should try not to caricature people. But in the end, my ethic is one of authenticity. Say what you want to say. Sure you should try to get the arguments right. But we don't always need to give our interlocutors space to speak in our own articles. Let them write replies if we've got them wrong. Let them clarify. It's an adversary process out there.

Posted by: Ethan Leib | Dec 27, 2006 11:42:22 PM

Initially, I wish you were more specific as to why you thought Law Student X's comments were astute, i.e. astute with respect to which subject?

To me, as a law clerk and recent law school graduate, professors "owe" one another the same sort of professional respect that any two professionals would owe one another in any field -- the law or otherwise. Namely a few things: 1) Know that the depths of your knowledge is limited; 2) Know what you don't know very much beyond your area of expertise; 3) Think before speaking; 4) Read carefully (and widely) before critiquing; 5) But don't equivocate if you think another's idea (argument, theory, etc.) is wrong (or incomplete, inaccurate, etc.). That being said affording a colleague (using the word broadly to include anyone who write about the law) professional respect is not the same as being willing to respect his/her's ideas. And good scholars are ordinarily careful to critique the idea and not the individual. While it may be true that from the presepective of the person whose idea is being "attacked," it seems personal that individual has to, frankly, "get over it." It is reasonable to expect that if you wish your ideas to be heard, then you better be able to weather some criticsm. In sum, it was my experience that my professors were not shy of hiding their feelings about others' work. But generally they were careful to differentiate between criticizing another's work for being poor in terms of methodology or thoroughness and simply disagreeing with the person's conclusions.

Ultimately, Michael Corelone said it best (I paraphrase) - "It's not personal, it's business."

Posted by: Alex | Dec 28, 2006 1:05:13 PM

I am sorry - there was an error in my previous post. When I asked you to be more specific as to why you thought the earlier poster's comments were astute - I didn't mean as to what subject (I understood the subject was that of "what does one prof. owe another"), rather which of the poster's comments did you find particularly astute.

Posted by: Alex | Dec 28, 2006 1:08:14 PM

Dan, you seem to be confusing things that are ethical and things that are career-wise. Informing a senior person that you are about to publish a scathing critique of his work might be career-wise, but I see no ethical obligation to do so. Ditto for using strong language, for making wide generalizations, or simply for writing something stupid and making a fool of yourself. All of those things aren’t wise, but they aren’t unethical.

At the same time, there are plenty of unethical behaviors that are career-wise. Say, some empirical findings are more politically acceptable in the academy than others, so a small (and hard-to-discover) data/methodology manipulation may do wonders to your career, but not to your claim of being ethical. Of course, you may be caught doing that sort of thing, but then, the typical solution is to claim ignorance – “I am just a little law professor; how would I know I needed all those controls and fancy ways of proving causation? I did what I could…” – and move on with your life as if nothing happened. It works because when the rest of us discover this rubbish, we really can’t tell whether the person is genuinely incompetent or whether he is a hack.

Posted by: Kate Litvak | Dec 28, 2006 3:41:36 PM

Wow, didn't realize my post would generate some of this commentary. First, to Ethan, two points. You ask "What great theorist hasn't taken some liberties with broadstroking a school of thought?" Here, I doubt that what makes the person a great theorist is that he or she takes liberties with broadstroking a school of thought. It might be that *despite* his taking liberties, that person has something worth hearing. But consider: I would guess, to use a real example, that Ronald Dworkin's reputation in law and philosophy is going to suffer (further) as a result of the fact that so many of his interlocutors believe he plays fast and loose with their views. Second, you (and apparently) Dave Hoffman over at Co-Op (http://www.concurringopinions.com/archives/2006/12/markel_on_civil.html) share the view that "it's an adversary system out there" in the world of scholarship. I find this both surprising and disappointing. It is true that knowledge accumulates by increment and some degree of back and forth, but I don't view my scholarly interlocutors as adversaries, rather as possible educators who can teach me and others something.
Indeed, Ethan, perhaps the risk of writing "authentically" rather than with an eye towards writing fairly and accurately is that the big names one is critiquing don't want to waste their time responding to people who view themselves as "adversaries." (I'm not saying this has happened in your case of course, but it's just a possible worry I'd have with aligning myself with the scholarship as adversary school.) What's more, to the extent that one is identified as a scholar qua adversary, one is undermining the currency of credibility that normally attaches to one's scholarship. With all respect to you and Dave, I don't see any real tradeoff between clarity and civility or between authenticity and civility.

As to Kate, she writes that I "seem to be confusing things that are ethical and things that are career-wise. Informing a senior person that you are about to publish a scathing critique of his work might be career-wise, but I see no ethical obligation to do so. Ditto for using strong language, for making wide generalizations, or simply for writing something stupid and making a fool of yourself. All of those things aren’t wise, but they aren’t unethical."

I'm surprised, Kate, that you find nothing unethical about using "strong language" or "making wide generalizations" but I bet if you asked people you considered models of ethical behavior, you might find some disagreement. In any event, my post was about what I think are the obligations of scholars toward other scholars (and not just those "senior" to me) and I invited people to contribute their thoughts in the comments about what norms or practices would redound to the *benefit* of the ethical practice of legal scholarship. Alex has done so. I've suggested some. Perhaps others will join that conversation.

Posted by: Dan Markel | Dec 28, 2006 6:11:41 PM

Of course there is a tradeoff. One has limited resources. I could try to spend my limited time understanding what I'm trying to say and saying it well and truly -- or I could worry whether footnote 17 offends some person out there and risk diluting what I really mean. I could spend time writing long string-cites to prove that originalists care about original meaning or I can try to develop a new and provocative argument about originalists. As I made clear in my original response, of course one should try not to caricature people. But we're talking about relative priorities and you offered one that I think is too cautious. The ethics of authenticity, I'd say, will produce better articles in the long run.

As for the "adversary" comment, I think you are taking that a bit too literally. All I mean is that a critique of Markovits, Kahan, whomever, is, in the final analysis, a critique. They may have helpful comments to make -- and it is very gracious and generous when they offer to read our replies to their work and help us get their arguments right. But the reply is not a collaboration or a joint project in any meaningful sense. And the burden of clarity is on them in the first instance. Others will judge who has the better argument.

Posted by: Ethan Leib | Dec 28, 2006 7:42:33 PM

The Philosophy profession would support Dan here (especially the para. beginning "One of my main goals...."), in fact, it's not uncommon to attempt to formulate the argument(s) of others in forms they might have missed or not even imagined (perhaps a way of anticipating rebuttals down the line) before proceeding to critique them. Dan's ideal here avoids the ad hominem insinuations or attacks that tempt the best of us and tend to close off dialectical argumentation or dialogue. A careerist obsession might prompt us to forget that 'It's not about making anyone look foolish or wicked.' An adversarial approach may work in the courtroom but hardly seems fitting for the domain of legal scholarship. A bit more abstract and even more philosophical, are theories of truth that should motivate something like Dan's approach. For, after all, interlocutors may not share worldviews, let alone conceptual frameworks, and our statements about facts, experiences, and values (all of which overlap and inform each other) are expressed in language that is dependent upon conceptual frameworks and categories. This 'concept-meditation' should lead us to avoid anything that smacks of an 'absolutist' approach to argumentation. Thus while we may agree to characterize some beliefs or views as clearly mistaken or false, for example, that the Holocaust did not occur (although such a determination is not dependent upon coming to a consensus), we should be open to the possibility that most views express at least some degree of truth, however small, provisional, what have you (this is not equivalent to subjectivism or moral relativism). I'll avoid further elaboration by asking interested readers to take a look at a handful of items: Michael Lynch's book, Truth in Context: An Essay on Pluralism and Objectivity (Cambridge, MA: MIT Press, 1998), a Wittgensteinian inspired treatment of this topic; recent discussions of Jaina logic and ontology which butress an 'epistemology of perspective' (e.g., Jonardon Ganeri, ed., Indian Logic: A Reader (2001) and his Philosophy in Classical India (2001), as well as Bimal Krishna Matilal's, The Central Philosophy of Jainism (1981) and The Character of Logic in India (1998)); and, two articles from Avner Cohen and Marcelo Dascal, eds., The Institution of Philosphy: A Discipline in Crisis? (1989): Hector-Neri Castaneda, 'Philosophy as a Science and as a Worldview,' and A.J. Mandt, 'The Inevitability of Pluralism: Philosophical Practice and Philosophical Excellence.' Finally, from the philosophy of religion there's an oft-cited story by John Wisdom (from his article, 'Gods,' Proceeedings of the Aristotelian Society, Vol. 45, 1944) about two travelers who come across an empty or untended garden. We might say that they both, literally, see the same thing, namely, the garden, and its flowers, weeds, shrubs, etc. But each interprets this garden scene differently: seeing different connections, patterns, designs (or lack thereof) and thereby accords a different significance to the same set of empirical data. Each version taken by itself is plausible, even reasonable (and for some, persuasive), yet the two accounts and their conclusions are rather different, indeed, contrary at not a few points.

Now I realize that these examples from Eastern and Western Philosophy may rub some the wrong way simply because they're not from the legal world proper, but I do believe they have some relevance to this discussion and thus in letter and spirit give support to some of Dan's points.

Posted by: Patrick S. O'Donnell | Dec 28, 2006 9:47:52 PM

All the above comments reflect a kind of sensitivity to the works of colleagues that is most praiseworthy, even given the disagreements on particular issues. But there is a dark item that no one has talked about, perhaps because, fortunately, it has not happened to them. Yet it does happen to many folks, as I have discovered.

The issue is theft of ideas. As you all know, there is no copyright on ideas. Yet new ideas are highly prized in our profession. There are, unfortunaly, some people who have lifted the ideas of others and built an article around those ideas that gave them tenure, without ever acknowledging in their footnotes that they had ever seen, much less read, the works of the person they were stealing from. Now, maybe some people think that in the law profession, theft of ideas is par for the course. After all, they might say, if you can't copyright an idea, then it must ipso facto be in the public domain, and therefore anyone can use it without attribution. Of course, the thief is always careful to reword the idea so that there can be no quantitative showing of plagiarism.

I would like to know whether legal scholars subscribe to this latter view. It is definitely not the case in the sciences. There, the theft of an idea is considered equivalent to plagiarism, and can get the thief fired from his or her job.

Naturally, there are problems of proof. We all know that some breakthrough ideas in the sciences were announced simultaneously by two researchers living on opposite sides of the globe who had no idea that the other was working on the same project. In this case, credit is uniformly divided between the two researchers. This comes up in Nobel prizes, for example, where the prize is divided between two researchers who worked independenly.

In the field of law, however, if one is careful enough to use different language, or if the piece stolen from was published before Westlaw or Nexis started transcribing law review articles, the "crime" can be perfect.

Or maybe it isn't an academic "crime" at all. I would like your reactions, or maybe a blog might be started on the issue of academic theft.

Posted by: Anthony D'Amato | Dec 29, 2006 11:51:17 AM

Let me take up Dan's challenge with a provocation: What is the proper role of research assistants in the ethical practice of legal scholarship? I assume that RAs are almost never given co-authorship credit (they work for money and mentorship, and the small comfort of the star footnote.) Given that there are scholars out there producing a half-dozen articles a year, law student RAs obviously play a bigger role than ever behind the scenes.

For example, is it ethical to have one's RAs draft small sections of an article (uncredited) so long as you read them over to change them to your style? (I think maybe not, although I think it is a common practice.)

Similarly, is it ok to have your RA find cites to support our argument (i.e., go find footnotes #s X, Y, and Z)? Again, this is a close one, and common in practice. Obviously, the best practice is to have the RAs give you a binder of proposed cites (with the original sources). But is ok to read that binder after submission to the law reviews but before publication? (i.e., when do we measure ethical production - by publication? by submission?)

Posted by: Dave Hoffman | Dec 29, 2006 12:38:38 PM

I discovered this blog about a month ago, as I attend one of the institutions represented by the Prawfs, but this is the first topic on which I've been moved to comment (and I apologize in advance for what will probably be a shamelessly long ramble and for my lowly student perspective).

Coming to law school with a doctorate in the Humanities, I didn't think the professional culture shock would be quite so, well, shocking. Professor Lieb's assertion that "[i]t's an adversary system out there" doesn't necessarily disqualify the collective project of scholarship or eclipse professional ethics, in my opinion. I guess I see the issue as one of conflating the adversarial structure of the law as a discipline with the collegial ties among those individuals who practice or teach the law.

To some degree, all intellectual argument is both adversarial and collective. Every new idea, every objection is adversarial, but the overall project of generating new knowledge and insight is collective, because each new idea depends on the existence of those insights one objects and builds on in the process of creating new scholarship. Professional ethics among colleagues runs the same track, IMO. There is certainly competition among legal scholars, lawyers, judges, law students, etc. -- for positions, for reputation, even for jobs. It's no different within the Humanities (which is why the pettiness of academic tussles never shocks me). There are adversarial aspects of all professional communities.

As a law student who is drawn to an eventual career in legal scholarship, though, I do believe that the adversarial mindset has been taken too far in legal studies. And I'm no intellectual priss -- I was trained in one of the great critical theory shark pits and definitely know how to draw first blood. But I attend an institution now where competition among students is amped up extremely high, perhaps in partial reflection of a similar sense of competitive anxiety among faculty, without a strong sense of professional camaraderie. This, IMO, is clearly detrimental to the pedagogical goals of law school and to an understanding on the part of students that the different intellectual resources of others are to be respected and perhaps even bested, not pummeled and cannibalized. How much respect can those being trained for careers in the law have when every other student, every other job candidate, and every other idea are viewed as adversaries? Doesn't the adversarial nature of the law become most meaningful in the context of shared ideals and collective practices? There seems something deeply ironic to me about the way law students are trained to be followers, mimics, and conformers in the Darwinian undertow of law school, while they're supposedly being trained as leaders (the best and brightest, blah blah blah). Leadership in what way, exactly? For what? To what ultimate goal? Among my favorite teachers are the FEW who talked to us about professional ethics, collegial responsibilities, and OUR responsibilities to the legal profession. I say "few," because I have observed many faculty engaged in a similar kind of competitive circling as students are adopting, with no larger sense of camaraderie among themselves. And what's really unfortunate is that I think my school has a very, very high level of teaching ability among the faculty. As much as I have learned in law school (A LOT), I think a stronger collective focus would make us better thinkers and better lawyers.

Perhaps I'd be more tolerant if I felt the amped up adversarial ethos produced universally outstanding ideas and scholarship. My own experience of the law, though, is that superficial analysis is often preferred over more subtle (and difficult) examination of legal complexities. Dworkin's work is a consistent frustration to me because seeing a brilliant scholar skate on the surface of so many important ideas violates everything I learned as a Humanities scholar and teacher -- and every benefit I think being more attentive to the ideas of others brings.

Sure there's a dose of professional courtesy in there -- and an even bigger dose of professional ethics, IMO. Even the most brilliant ideas don't sprout from the minds of legal scholars sua sponte. IMO it's often the brilliant mavericks who have the most deep and solid background in the work of other scholars, which they assimilate, analyze, and emerge from with a new inisight or argument. But beyond professional ethics, I see the excavation and coding of other scholarly arguments as an intellectual duty a scholar has to his or herself -- a marking of one's own intellectual territory and an opportunity to offer that new idea in its clearest and best situated way. On a pure ego level, showing that one understands other views and knows how to critique them effectively to make way for the new insight gives a boost to both the individual scholar (and the adversarial ethos) and the collective work of the law as a philosophical and practical endeavor. I guess I just don't see a down side for anyone or anything in the law.

Posted by: California 3L | Dec 29, 2006 1:02:48 PM

Oh, and I apologize for hitting "post" before fixing the spelling of Ethan Leib's name.

Posted by: California 3L | Dec 29, 2006 1:05:37 PM

Over at Co-Op, Dan Solove has written another relevant response to the discussion started here. You might want to check it out at http://www.concurringopinions.com/archives/2006/12/academic_civili.html.
Here's my response to Dan S., which might clarify my views on related comments here. Solove suggests that I embrace a "love my opponent" approach and that he doesn't agree with me "that one must be very deferential to those making opposing arguments." Note, here are two misreadings of what I wrote. I didn't say anything about deference to those making opposing arguments. What I said was that our focus should be on fairness and accuracy in characterizing other people's work, especially those we would criticize. I indicated that our interlocutors should be deemed as potential teachers. But that doesn't mean that there is any deference to them or their arguments or any "love my opponent" mushiness going on either. My guess is that both Dave Hoffman and my positions are being mischaracterized so that Dan can stake out a more reasonable or attractive middle position...in the service of humor and some larger point.

As to practical matters, how much disagreement is there with the following three suggestions I made? (And this I raise in response to Ethan or Kate or Dave H. or Dan S., or anyone else):
1) have I characterized the work of the other person fairly and accurately such that if I were (notice the hypothetical here) to show the draft to the object of criticism she would say you have not distorted my meaning? (I mentioned that I actually try to follow up on this by showing the work to those I criticize before I consider it finished. I recognize that not all think it's obligatory, but is there any downside to doing so?)
2) Does anyone disagree with the claim that what I called drive by characterizations of schools of thought are less helpful to academic debate than engagement with specific claims by specific authors?
3) Does anyone disagree with the claim that one should try to engage, if relevant, the most recent work of the person on the given subject to avoid the potential pitfalls I spotlighted in my post?

If these three points are in contention, I'd like to know. I'd also like to know if there are any other constructive ideas about how to realize the ethical practice of legal scholarship. Tony's comment about theft of ideas probably deserves another thread altogether, but feel free to weigh in on that too.

Posted by: Dan Markel | Dec 29, 2006 1:10:35 PM

I guess I'd offer counter-principles of academic ethics:

1. Try to say something true and interesting. Work toward originality and insight.

2. Try to bring something new to the conversation in which you are engaged. If you are spending a lot of time summarizing others' views, you might be making law review editors happy -- but you should aspire to more.

3. Try to say something that matters.

These counter-principles strike me as far more important than worrying about whether I've read the most recent iteration of a scholar's one big idea. Maybe you are right that your principles are also worthwhile -- though I disagree that your "naming names" ethic is universally sensible (i.e., it all depends on context and can be as distracting as it can be clarifying).

I suppose I was reacting, in the first instance, to the priority of your principles. In many cases, your principles are, perhaps, incidentally important to writing well. But I wouldn't put them at the core of any ethical system, as I took it you were doing. Even your first principle is contestable: Perhaps it makes sense if you are writing a full commentary or reply about another scholar's work. But what if you have a footnote trying to take account of a scholar's approach to your point? Must I distribute each footnote to all those cited to make sure I've got them right? This strikes me as a waste of precious time -- and looks more like sucking up than really trying to get the arguments right. So even your minimalist principles are plenty controversial in application. I realize you now want to focus on the hypothetical nature of the question. Sure, we should all try to be fair to those we criticize and summarize. But that is like putting the prohibition against killing in a list of ethical principles for leading a good life. Of course -- but is that an interesting way of leading a good life? It may not be deeply contestable (though of course it is at the margins) but it is an odd precept to put at the core. Indeed, if it were one of my main goals in leading a good life, something is very wrong with me.

Cal3L: You've made some very nice points. But you are relying on an attenuated chain of causation to blame your student culture on professor culture. Hastings is actually nice counter-example (I wonder if you are a student there . . .). I'm told the students there are very competitive with one another. But faculty there couldn't be less competitive with one another; the institutional culture is extremely collegial (to a fault, arguably). The teaching culture is also a very supportive one. Students perhaps can blame the manadatory curve and also themselves. And the SF lawyer market.

Now the profession is an adversarial one, for sure. And that undoubtedly trickles down to students and professors alike. Your larger culutural critique of the profession stands. But I'm much more comfortable with it than you are. And that culture is likely more the cause than your professors.

Posted by: Ethan Leib | Dec 29, 2006 2:21:34 PM

But you are relying on an attenuated chain of causation to blame your student culture on professor culture.

Just to be fair -- to me, of course! -- what I said was this: "But I attend an institution now where competition among students is amped up extremely high, perhaps in partial reflection of a similar sense of competitive anxiety among faculty, without a strong sense of professional camaraderie."

I agree that there are multiple factors that influence student culture at a law school, but when it comes to issues of professional culture, can you really contend that faculty and academic administrators aren't serving as important role models, especially in what is essentially an apprentiship model of professional development? I was warned by a law school faculty member when I started that law school was much more like high school than grad school, and truer words were never spoken. There are some things about this culture I like and some I don't. And there are some things I think are wholly the responsibility of students, but I'll bet my list would be very different -- and probably much shorter -- than yours, because, well, I'm a student and you're a professor. What I see as paternalistic, you might see as supportive, etc. For whatever reasons, my own career in various positions in higher education has led me to place a far greater share of responsibility for student culture on faculty and administrators as primary mentors/role models (whether active or passive in this role).

As for the pereception of collegiality among law school faculty, I think gender plays a role here, as I get a far different perspective from women faculty than from men -- your perspective, for obvious reasons, seems very much in line with some of the male perspectives I've heard. I don't see this gender dynamic as limited to law school, though, as I saw it in several Humanities departments, too (with subdivisions along racial lines, too). Obviously, it's all a matter of perspective.

As for your larger points about originality in legal scholarship, I could not agree with you more. And I see the dangers you articulate fulfilled many times in law review articles that spend so much time positioning other critics that there is no new perspective offered (or little substantive and new). OTOH, though, I don't see the positioning in terms of "love your opponent" or your more moderate perspective of pleasing editors. I see it as -- ideally -- a means to spotlight a new idea. Sure it shows respect to a fellow scholar if I can demonstrate that I understand his or her position; but to be able to show that understanding and then surpass it seems to be the real aim of original scholarship. I see it as less about people and more about ideas. If a scholar uses a misuderstood or misrepresented view on which to build his or her own position, I'm less likely to be convinced by the "new" idea than I am by an idea that emerges from a clear understanding of competing or opposing views. That understanding of other ideas reflects not only respect for ideas in general, but also a clear-mindedness that lends confidence to the generation of a new insight, IMO. And it frustrates me that students, for example, or scholars in other fields writing about law (which is how I was introduced to the field), are not necessarily able to tell the difference between good and bad expressions of contextual ideas.

Maybe it's just a matter of finding a better balance between the derivative and the original nature of legal scholarship. Each field struggles with a version of this dilemma, I think. Humanists, for example, don't talk about this in the same terms you folks are, but the results are similar -- lots of derivative scholarship illuminated by a few flares of brilliance.

Posted by: California 3L | Dec 29, 2006 3:28:28 PM

I posted a comment at my Co-Op post in response to Dan's response to my response to his initial post. Here it is cross-posted in its entirety:

Dan,

On your point (1), there is no downside, but your post struck me as suggesting an "obligation," which is a word you used toward the beginning of your post. But other academics commonly gripe about being mischaracterized when the fault isn't you but them. They might not have been clear, might have been quite vague, and it is an easy response to say "well, you mischaracterized me. . . " Obviously, I think that mischaracterizing is bad, but one person's mischaracterization is another's clarification or tracing out the logical implications in an argument. What I disagreed with in your post was what I read to be an attitude of excessive courtesy to those you're critiquing. Perhaps this isn't what you meant, but it came across that way. The most apt word for it struck me as "deferential," and thus I don't see that this characterization was improper. As for "loving" your opponent, this was a deliberate exaggeration, but it was intended to clearly come across as such.

For example, you write: "Anytime I'm tempted to write out of rage that someone's argument is hopelessly misguided or fabulously wrong, I try to remember how much I cringe when my own work is criticized. I drop adverbs and instead use locutions such as the claims advanced in the article 'seem mistaken or inaccurate' for the following reasons..." This strikes me as trying to be way too gentle, and as being a bit too thin-skinned about being criticized. I don't cringe when I'm criticized, and if I think an argument is wrong, I claim it is wrong, regardless of how much the person I'm criticizing might cringe.

On (2), who could disagree? You've characterized your claim here as so obvious that nobody would disagree.

On (3), I only partially agree on this one. Sometimes, it can be helpful to trace a person's development of thought over time. Sometimes, there's an early idea that a person has disavowed but that is nevertheless worth discussing and critiquing. Of course, if a person has backed away from it, I would mention that, but some scholars are tremendously wiggly and hard to pin down. Think of Ronald Dworkin and compare Taking Rights Seriously to Law's Empire. You can actually pin Dworkin down a bit in Taking Rights Seriously. Law's Empire is often so vague that it is hard sometimes to pin down what he is claiming.

The tone of your post was in terms of "ethics" and "obligations," which is why I reacted the way I did. I differ from you in that I don't see it in terms of ethics or obligations -- I see it in terms of effective or ineffective practices. I don't think we're obligated to show other scholars our critiques beforehand; nor do I think we're obligated to focus on their recent work. In many cases, it is productive to do so. But not always.

It also struck me that in your post you were struggling between two sets of "obligations" -- (1) to the advancement of ideas; and (2) to the scholars you were criticizing. Often these two coincide, but not always. At times, I was wondering whether you were sacrificing (1) for the sake of (2). I believe that both are important, though in cases of conflict, I'd be more inclined to sacrifice (2) for (1).

Posted by: Daniel J. Solove | Dec 29, 2006 3:46:24 PM

Ethan, I'm not sure what makes something a counter-principle or just a principle, but your valuable advice about writing something new, useful, and interesting seems in no ways "counter" to what I was saying. In terms of what I was getting at, I don't much think that your counter-principles are relevant in the way of "ethical practice of legal scholarship" other than it suggests what Tony alluded to: please don't steal the ideas of those before you...
Also, you seem to be inferring that I give more weight to these principles than I actually am. I didn't say anything about the priority of my suggestions in how to live one's life or how to write legal scholarship; I never suggested anything about how these principles occupy a role at the "core" of how one should live. I just threw them out there as guidelines, which, if followed, would, to my mind, redound to the benefit of legal scholarship and those who write and read it. Ethan, you also lament that these guidelines might unduly intrude upon one's time. ("Must I distribute each footnote to all those cited to make sure I've got them right?") To be clear, I didn't say anything remotely like: one should show each footnote to the author being cited. What I said is if one were criticizing another scholar, one should make sure it is based on a fair and accurate representation of that person's work. (And there may be good reasons to seek out feedback from that person.) Not every footnote involves a criticism. In my experience, few in fact do.
As to Dan S.'s comments, I resisted the ascription of "deference" because that would suggest at least giving the benefit of the doubt to the interlocutor. I intended no such suggestion nor do I think my words leave that impression. I simply urged "the fair and accurate" test and a style that stripped away heated rhetoric and instead relied on substantive arguments. None of that suggests a preference for sacrificing the advancement of ideas in service to the tender feelings of the scholars whose work I am criticizing. It may suggest, on the other hand, that we can make our points and still recognize that there are human beings involved.

I'm grateful for Dave H's provocation about the correct treatment of RA's, and Tony's raising the issue about theft of ideas. These are highly relevant to the ethical practice of legal scholarship and I wonder what can be done, if anything, to further understand and address these problems. Hmm, maybe some more fodder for separate posts.
Have a good weekend and happy new year all!

Posted by: Dan Markel | Dec 29, 2006 6:56:50 PM

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