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Thursday, March 06, 2008
Reading Legal Scholarship
Brian Leiter recently posted a query on his philosophy blog asking how people read philosophical articles. I'd like to ask the same question about law review articles. How much time do you typically spend reading an average length article? Do you usually skim? Do you read the footnotes methodically or selectively? Surely these answers will vary with the piece but somehow the comments on Leiter's blog were still informative.
As I've discussed before on Prawfs, the topic is particular importance in legal scholarship where often 1/3 or more of the words in an article appear in footnotes. In fact, one can think of every law review article as consisting of a full and a "lite" version, depending on how meticulously the reader examines the footnotes. This makes legal scholarship like a "Choose Your Own Adventure Story."
In deciding what text should be in the body of an article versus the footnotes, it would be helpful to know more about how scholarship is read. Should footnotes be treated as necessary support for points in the text or also as enrichment discussion? In practice, the answer seems to be both. But surely there's a spectrum of choices between these two options. Perhaps we should deliberately write our articles cognizant of the fact that they effectively have both full and lite versions.
Posted by Adam Kolber on March 6, 2008 at 08:54 AM | Permalink
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Comments
The philosopher of science Joseph Agassi has a piece entitled Scientific Literacy. At pages 13-17, he discusses the art of browsing, albeit in connection with books, not articles. But his point is that the ability to browse is essential to scientific literacy.
Posted by: Jeff Lipshaw | Mar 6, 2008 9:59:33 AM
I assume that readers of law review articles are really just reading the introduction, and that if they want to know more then your introduction points them to the long version in the body of the article. But most readers skim the introduction to get the basic idea, and so the introduction has to give the short version of the article. In that sense, law review articles are really only about 7 pages long (the length of the intro); the rest is commentary.
Given my sense of how most readers go about reading an article, I assume readers do not read footnotes for substantive arguments. Occasionally you might hide a side comment about the limitations or consequences of a claim in a footnote, but I think the default rule is that no one sees actually arguments made in footnotes. Make the argument in the main text, and better yet in the intro.
Posted by: Orin Kerr | Mar 6, 2008 12:57:14 PM
As a practicing lawyer, and in that realm, I rarely read law review articles unless I am trying to learn about some arena of law related to a case. With that said, being a lover of learning, when something sparks my interest (for instance, a recent article on punishment calibration), I will seek out related law review articles on the arena of that interest and try and learn everything I can.
--J.
Posted by: Jonathan | Mar 6, 2008 12:58:42 PM
Make than "more than," not "more then." Argh.
Posted by: Orin Kerr | Mar 6, 2008 12:58:43 PM
Jonathan: Thanks for the plug. I'll plan to at least reference the paper again this month at Prawfs.
Posted by: Adam Kolber | Mar 6, 2008 1:06:19 PM
Thank you, Prof. Kolber - your considerations on that matter are quite thoughtful.
To add to my earlier comment, I approach law review articles like I would any work of philosophy, theology, etc. (pretty much anything with the exception of fiction). Presuming the article relates to an area of interest, I sit with a pad and pen (or virtual pad and pen) and construct an outline of the author's argument, while simulataneously noting fallacies, issues, strong / weak points, etc. in the argument.
I have found with legal work that if I just read the summary of a case on Westlaw, I miss important references and distinctions made in the opinion. The same holds true with law review articles - while the summary may contain nothing of interest, hidden gems lie in the author's argument or even footnote references.
--J.
Posted by: Jonathan | Mar 6, 2008 1:27:09 PM
Sorry to be late to the party here, but I think there are numerous readers and readings going on which make the footnotes more worthwhile than Adam's post at times implies. For (the relatively few) readers who actually write on the specific subject discussed in the article, the footnotes become an important means to signal the author has done a thorough lit review. For (the larger number of) readers who may be interested in one or more of the theoretical, doctrinal, or empirical points in the article, some of the footnotes will be quite important for the same reason. In the end, I think reasonable overcitation is better than undercitation both because it gives credit where it's due and helps the knowing reader evaluate the argument and the ignorant reader a sense of where else to look. The types of readers who benefit from reasonable overcitation are likely to be fewer than the intro-scanners that Orin identifies, but if the piece covers an area of both specialized and general interest, the number of each type is likely to be greater than zero.
Oh, and of course one should never forget the narcissistic readers who scan the footnotes looking for cites to their own work. And who among us can claim we haven't done such a thing, even if only very occasionally [grin]?
Posted by: Mark Fenster | Mar 7, 2008 9:58:38 PM
Thanks everyone for the comments. Mark, I don't think that I implied that footnotes are not valuable. In fact, over the years, I've grown to appreciate how scholarship in other academic fields can be frustrating because it often fails to adequately document claims or cites to a book without giving helpful pincites. But I certainly think that some footnotes serve mandatory roles as reference devices while others simply provide enrichment discussion that could appear in a footnote or in the body of the text.
Posted by: Adam Kolber | Mar 9, 2008 7:46:20 PM
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