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Wednesday, September 13, 2006

The Web of Law

I suppose I tended to believe the optimists who told me not to worry too much about placement: as long as your article is up on Lexis & Westlaw, they would say, people can find, read, and cite your work.  These databases are said to democratize scholarship.

Enter Tom Smith, the always-entertaining pessimist.  He makes an underappreciated point: as search technologies get better, many people will simply screen out of their database searches articles by unimportant people publishing in unimportant places.  Even though law professors undoubtedly know better than to discount articles that place badly for one reason or another, they are a prestige-sensitive bunch.  And let's face it: even if your idea has been discussed before by an unknown scholar in an obscure law review, it remains ripe for discussion in the better law reviews and you can safely ignore the earlier work -- or at least convince law students that you haven't been pre-empted.  Of course technology itself has no agency; but what it will likely make possible can be justifiably lamented.

Posted by Ethan Leib on September 13, 2006 at 10:24 AM in Life of Law Schools | Permalink


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Not only is Orin 100% right, but I think it approaches a breach of academic ethics for some versions of Ethan's worst-case-scenario. Obviously, being aware of the preempting idea and not citing it at all is blatant plagiarism. I'm not sure whether "safely ignoring the earlier work" or "convincing law students it's not preempted" requires that kind of behavior, but for a sufficiently dilligent law student editor (an empirical question to be sure), it would seem like a citation would be enough to clue them in.

How about filtering a search to the point where it's unlikely to catch preempting work? At what point does that become unethical? I think it's gotta be clear that it's at least serious misbehavior to do a lit search, for example, in only the general journals of the top-five schools. How about the top ten? The top fifty? It seems that a good faith literature review would include every legitimate and reasonably (cost-efficiently) accessible source, a review made very easy by the databases.

Posted by: Paul Gowder | Sep 15, 2006 12:16:28 AM

I think Bart's take is correct when it comes to topics that are somewhat obscure (though very interesting!) -- like land expropriation in China. Then, the researcher is delighted to find anything on point. If, by contrast, the topic is some hot issue involving the First Amendment, then unknown scholar's writing in unknown journal can and will be ignored -- even if brilliant. So 2 cent is correct that the fancy placement is the friend of the unknown writer. And -- in response to A, the placement game may be helpful to the reader as well if unknown writer has a wonderful article.

Posted by: Rachel Godsil | Sep 14, 2006 2:09:06 PM

Yes, but I think 2 cents' point was that placement game was helpful to professor nobody at podunk law center (the writer). It might, as you say, be of less use to the reader.

Posted by: A | Sep 14, 2006 12:41:30 PM

I disagree with 2 cent. The reason you read articles is to get information about a topic. When I was researching land expropriation in China, several of the best guys on the topic were people I'd never heard of. Some of their work was published in the China Quarterly, sure, but other stuff I got off of SSRN or through correspondence with the authors. In a sense, who cares where it was published? You need stuff that is: 1. on topic. 2. written by people who know what they are talking about. Distant 3rd. Is published in a WHAM journal. Distant 4th. Is published by a big name. I don't think you can ignore anything that is on topic published in a big law journal by a huge name--that would be not only sloppy research but you have to engage the big thinkers--but on the other hand, I don't see people ignoring articles simply because they are not published in a name journal. 2 cent's argument seems to dovetail with Ethan Leib's. But I'm not sure I buy either in pure form. I see the advantages to the prestigious placement but these comments seem to overstate the case.

Posted by: Bart Motes | Sep 14, 2006 5:47:35 AM

In defense of the placement game: Suppose there's a prof in a bottom tier school -- in other words, a nobody. Suppose further that the prof is consistently able to place in top 50 journals. The only thing that saves the articles from obscurity is the placement. The rest of the Academy probably would not take the articles seriously but for the placements. Who's going to devote the time to reading something written by Prof. Nobody at Fourth Tier Law School. But you might feel differently if the article is in No. 18 1/2 L. Rev. In other words, the placement game is Prof. Nobody's friend.

From this perspective, this entire subject may look a lot different than it might to GWU Prof. who places in Harv. L. Rev. (and I say that with admiration) or to UT Prof., whose work will be read whether or not it appears in a student-edited journal because everyone will assume that anything written by a UT prof is worthwhile.

Posted by: 2 cent | Sep 13, 2006 9:53:38 PM

I think that Orin's comment wasn't so much taking issue with the orginal post, rather the consequences that were identified. Or at least that was how I read it. It would just be very unfortunate if searching tools and hierarchies blocked the flow of ideas (and "credit" for those ideas), rather than making it better...

Posted by: Miriam Cherry | Sep 13, 2006 5:27:04 PM

In Republic.com, Sunstein had similar concerns about totally personalized web content. He thought it would hurt (inter alia) democratic deliberation, since everyone would focus on different news sources. You bring up an even more serious problem--systematic marginalization of certain articles just on the basis of placement.

I think Dan Hunter's critique of Cass Sunstein (in Phillipic.com) offers some consolation. Dan doubts that filters can be as effective or exclusionary as Sunstein thought.

I think the biggest problem is an echo chamber effect. Articles are too often law profs talking to themselves. If that conversation gets further stratified, we're in trouble!

Posted by: Frank | Sep 13, 2006 4:46:24 PM

Thanks, Bart. Orin's "Woah" and radical "disagreement" make no sense to me. I think it was pretty obvious that I wasn't arguing that we SHOULD ignore the previous work.

Posted by: Ethan Leib | Sep 13, 2006 4:30:53 PM

Putting aside the student-edited peer viewed debate, I've got to say that I believe Orin is 100% right on this one.

Posted by: Miriam Cherry | Sep 13, 2006 4:06:53 PM

"Even though law professors undoubtedly know better than to discount articles that place badly for one reason or another, they are a prestige-sensitive bunch. "

Prestige-sensitive, or insecure? Does pandering to 2Ls who know little about the law reflect an obsession with prestige, or a sense of insecurity? I don't see what's "prestigious" about convincing one set of 2Ls over another that your work is worthy of publication. Rather, such obsession seems to reflect the author's worrying what the Jones's might think if one's article is published in a lower tier journal (or, god forbid, a peer-reviewed journal), and lacking confidence in one's ideas.

Posted by: andy | Sep 13, 2006 3:51:56 PM

This may be a good place to hawk our new blog, coming on stream in about a month, with a comment here. One of my plans for Legal Profession Blog was a feature once a week or so entitled "Straddling the Fence" in which I ruminate in a practical way about academics, or in an academic way about practice (most likely depending on how many expletives I feel like using at the time).

But Ethan's post has caused me to rethink or perhaps supplement it, hitting me, as it were, where hurts: as an unknown author in obscure law reviews (well, maybe not obscure, but certainly not as impressive, at least by US News ranking, or Washington & Lee ranking, as all of the other ones by other professors in the display cabinet here at Tulane). This really hit home when I ordered Ian Ayres' new book on promissory fraud, did the "Search Inside This Book" thing on Amazon, and discovered that the book starts with a hypothetical involving the ordering of two eggs over easy, the very conceit I used in an article that came out in the Temple Law Review early in 2005. I doubt seriously whether I am cited, but, trust me, it will be the first thing I check when it arrives.

So now I'm thinking about another blog, and maybe, and without citation to Thomas Hardy, calling it "Jeff the Obscure."

Posted by: Jeff Lipshaw | Sep 13, 2006 3:37:31 PM

Friends don't let friends publish in law reviews. People who won't submit themselves to a peer review aren't grownups.

Posted by: Kate Litvak | Sep 13, 2006 3:26:14 PM

I agree with Orin Kerr, but I think you have to take the original comment in context. I don't believe that Ethan Leib was endorsing this viewpoint, or even suggesting that it is or ought to be permissible, rather that it is an unfortunate possibility that inevitably occurs.

Posted by: Bart Motes | Sep 13, 2006 2:56:05 PM

Ethan writes:

And let's face it: even if your idea has been discussed before by an unknown scholar in an obscure law review, it remains ripe for discussion in the better law reviews and you can safely ignore the earlier work

Woah. I couldn't disagree more. If some unknown scholar hit upon a great idea, I think we should try to make that unknown scholar known, not try to ignore the earlier work.

Posted by: Orin Kerr | Sep 13, 2006 2:50:11 PM

The point you make about derivative works can operate in reverse. My training subcite assignment was of an article on a subject with which I had a passing acquaintance. I was surprised to find that the article, by an unknown scholar, was entirely derivative of a very prominent scholar in the same field, whose landmark article I had read. As far as I could tell, it added nothing new. Obscure schools, obscure scholars, but in this case obscure topics seem to obscure "borrowing." I would still be surprised if people screened articles in that fashion when doing research. If you search West and Lexis, you get basically the same results. But using JSTOR provides a totally different set, and if you know the right journals to search on HeinOnline, you get a whole nother set. I don't know why anyone would want to exclude anything from their searches.

Posted by: Bart Motes | Sep 13, 2006 10:38:56 AM

I seriously doubt this, because I think that WL and Lexis allow people to search for ideas that they either want to hear (and therefore reprint them), or search for summaries of fields that they are interested in. In my experience, this is why most people use WL and Lexis.

Hein has a feature which allows people to only look at “top” journals, but since their searching capabilities are limited, it isn’t used that much.

Posted by: S.cotus | Sep 13, 2006 10:37:52 AM

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