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Thursday, December 29, 2011

Blame Canada (and Everyone Else), Legal Scholarship Edition

Via The Faculty Lounge, a report from Danny Sokol about the relative paucity of citations in American law reviews to English/European, Canadian, or Australian law journals.  In Sokol's posts, and in the comments to the Faculty Lounge post, there are various speculations about why this might be so, some of which apply specifically to areas I can't common on, like antitrust law.  The same thing is true, I think, even in my own field of constitutional law, notwithstanding the continued relative popularity of comparative constitutional law.  Of course there are comparative constitutional pieces, but in general constitutional law pieces there are quite few citations to scholarship from other countries or regions, despite the fact that at a reasonably high level of generality (but a level of generality at which much con law scholarship operates) there are plenty of overlapping issues.  And the same thing seems true in other areas where one might reasonably learn from at least the other common-law jurisdictions, like private law generally and various public law subjects, especially criminal law.  Again, I'm not referring to genuine comparative scholarship here: just regular scholarship that draws on relevant scholarship from other countries.  Let me first say that this paucity of citation doesn't seem especially justifiable as a pure matter of scholarship.  If one's research in many areas does not involve searching these sources, it is inadequate.  

Are there other possible explanations for this state of affairs?  Let me offer a couple of speculations:

1) American exceptionalism.  Perhaps there are some areas where American law really is different.  That is not a good enough reason for the failure to research or cite law from non-American sources, however, both because different doesn't mean better and because it's hard to know whether American law is exceptional without actually finding out.  But, at least in con law, there's another way in which American exceptionalism is relevant.  To the extent that some dominant American interpretive approaches stress purely American sources and history, then it is more likely that foreign constitutional materials will be irrelevant to that scholarship.  I'm not saying this is a good or bad thing.  I have encountered some Canadian con law friends, and some Americans as well, who lament that the United States is not much of an active partner in constitutional dialogue with other countries, but I am less willing to call this lamentable without answering the question whether constitutional interpretation is really and legitimately a global enterprise relying on shared sources.  I should add, however, that even if one buys into those interpretive methodologies, that is still not good enough reason to fail to look at scholarship from other countries.  Even more or less originalist scholarship often canvasses judicial doctrine, factual contxt, and general policy, and in all these areas one might learn from other countries.    

2)  American ignorance.  This is a flip-side of American exceptionalism.  Perhaps American legal scholars are simply relatively ignorant of what is happening in other countries.

3) Economizing on time.  Building on the last point, it takes time and work to get up to speed enough on foreign law in various areas to make effective use of foreign legal scholarship, so perhaps American legal scholars have implicitly or explicitly decided it's not worth the effort.  One thing that further supports such an economizing decision is federalism: since we already have numerous laboratories of experiment in various legal fields, all of which we may understand better than we do the law of other countries, we already have an adequate store of material to choose from domestically.  Although there is something to be said for the efficiency point, I don't find it sufficient justification.  In some areas, the law in other countries may be sufficiently similar that the costs of getting up to speed are smaller than the value one might get from looking at foreign legal materials.  Moreover, to the extent that American jurisdictions end up incestuously drawing on one another, they may not provide enough variation to be truly useful.  In any event, we're not just talking about cases here: we're talking about legal scholarship.  As I said earlier, in many areas that scholarship operates at a sufficient level of abstraction that one might just as usefully draw from an English law review article as one from Wyoming.  

4) Quality and nature of foreign legal scholarship.  Sokol's post suggests that in antritrust, a good deal of foreign legal scholarship is more flatly doctrinal than in comparative American scholarship.  The same thing might be true in other areas.  It is also true that the quality of foreign legal scholarship is necessarily variable, and that an American scholar might not have the wherewithal to properly evaluate the quality of foreign legal scholarship.  This is a fair point, but it still seems perverse to me that the end result is that it is much more likely that an American law review article will cite a lousy American article than an excellent English or Canadian one.

5) Structural barriers to effective research.  For years, I was peeved that my earlier articles published in Canadian law reviews were not accessible via the basic Westlaw legal periodicals database, and so were less likely to be encountered by American legal scholars.  That's less true than it used to be; more foreign law reviews are now available on the basic legal periodical databases.  But they are less available, certainly, than comparable (or inferior) American legal scholarship; and since American law professors often search for their keys under the lamppost, that makes it less likely that they will encounter even useful scholarship from other countries.  

Other possible explanations, or comments? 

Posted by Paul Horwitz on December 29, 2011 at 08:50 AM in Paul Horwitz | Permalink

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Comments

I know for my field (international law) many of the journals outside of the United States are not easy to find, often are not part of the subscription services my library has, and don't appear in Westlaw or Lexis.

Google Scholar has made searching these sources much easier than it used to be, but it is still not always easy to get copies of the things that I find. For obviously relevant and/or important articles, I use ILL. But there is a lot of stuff that looks somewhat interesting but not interesting enough to justify the expense and time of ILL.

Posted by: Stuart Ford | Dec 29, 2011 10:49:20 AM

Paul,

I have an alternative theory to the ones that you provide. Many cites are filled in by research assistants or law review editors and the students prefer to cite what is westlaw searchable from journals they know or schools they know. Books tend to get cited less because they are not westlaw searchable, which supports the RA/editor hypothesis.

The question is why are pure theory pieces not getting traction in US law review. For example a theory paper on breach of contract or on optimal tax theory should be appealing for citation, even if it does not appear in a US law journal. Given the importance of SSRN and Google Scholar in finding working papers and articles, the structural barrier explanation you offer seems to hold less weight now than a decade ago.

Posted by: D. Daniel Sokol | Dec 29, 2011 12:25:27 PM

There's also the Weight of Authority issue. Certainly in European journals (and less so, but still apparent, in non-US common-law-nation journals), articles tend to be shorter and much more focused. That doesn't mean they're any less analytical; it just means that:

* One might not see how an article discussing X v. Regina may be relevant to one's work without the background material that tends to form part I and II.A of American law journal articles that the foreign journals tend to leave for others to discuss, and so the articles don't get considered.

* We're so bound up in stare decisis Over Here that it's hard for us to accept that merely persuasive authority often has as much for a scholar to consider if not more than material that at least engages with the longstanding binding precedent by name.

* Perhaps most significant, there's a subconscious preference for longer pieces as somehow being better authority, even when they're not quite as on point. For example, in copyright law there's a hundred-page-or-so semicanonical article on the expansion of "writings" to include non-textual materials that gets cited all the time for its two-page discussion of photographs as writings, in preference to a better-researched, better-written "comment" (not by a student) in a similarly prestigious journal that covers only that aspect... but is only a dozen pages long.

Posted by: C.E. Petit | Dec 29, 2011 2:03:42 PM

C.E., You conclude with "Perhaps most significant, there's a subconscious preference for longer pieces as somehow being better authority, even when they're not quite as on point." I am not sure that length is really it. Look at the ranking for the The Journal of Legal Studies (78) or the relatively new (since 2004) Journal of Empirical Legal Studies (63), which tend to have shorter pieces than traditional law reviews. Having said that, one number that shocks me is the low rank of the Journal of Law & Economics (321) given that it tends to have shorter pieces and lots of famous articles that falls within the "super precedent" category.

Posted by: D. Daniel Sokol | Dec 29, 2011 10:30:40 PM

A "preference" is not determinative: When there is no alternative (and for certain ideological predispositions, there arguably is not an acceptable alternative to JLS and JELS), of course the shorter pieces will be cited. That, however, is not what I was trying to point out; I was trying to point out a general tendency to favor "heavier" authority when there are alternatives. In other words, it's a significant -- but not outcome-determinative -- thumb on the scale.

Posted by: C.E. Petit | Dec 30, 2011 12:27:26 PM

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