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Wednesday, June 06, 2007

A Cautionary Tale for Users of SSRN and bepress?

You've probably seen some blogging lately about the New York Times rule.  Some (like Jeff Lipshaw) say it means: don't do anything that you wouldn't want to see covered in tomorrow's NYT. Others  (like Jeff Harrison) interpret it as: don't say anything in writing that might get you in trouble; according to the rule, all controversial statements should be said orally so you can always deny what was said. 

Well, with reference to that discussion and Ethan's post yesterday about the possibility of using corrected versions of papers on SSRN or bepress, readers in our profession might feel a twinge of sympathy for Professor Victoria Dawson of FAMU in Orlando, wondering if she has her own "NYT rule" problem.  Here's why.

A few years ago, Professor Dawson posted on bepress a draft of a paper -- still in need of a proof-read -- as it was being circulated to law reviews for publication. The paper later appeared in the Missouri Environmental Law and Policy Review. Nothing too unusual there, right?

Well, some FAMU students are "now using [the draft paper] to help build a case that Dawson is not qualified to teach and was hired primarily on the strength of her personal ties."

Having reviewed the paper, the St Pete's Times authoritatively states it

is peppered with spelling, punctuation and grammatical errors. Even the title is off: "Environmental Dispute Resolution: Developing Mechanisims (sic) for Effective Transnational Enforcement of International Environmental Standards."

Wow.  And so because someone posted a shitty first draft on bepress, she is facing questions about her competence to teach. I understand that legal writing may be part of her responsibilities and I understand that FAMU's law school has had various serious problems, but I'm quite worried now that articles of the sort run in the St. Pete's Times will undermine the goal of getting "tomorrow's research today." If this is the flimsy evidence of incompetence used to shame someone publicly, we can thank the St Pete Times -- for now even more scholars, especially junior ones, will be worried about what their local paper will publish when there are incomplete or somewhat mangled drafts up on SSRN and bepress. 

Of course, the answer might just be, put up clean copies on ssrn. That's not going to help allay fears.  So many people in the prawf business are afraid of putting up work that hasn't gone through a dozen law students' eyes that we shouldn't be surprised when SSRN becomes a repository for only completed  and published papers. So, what is to be done?? Well, if you have any thoughts, feel free to contact the reporter, Ron Matus, who can be reached at (727) 893-8873 or [email protected].  And of course, share your thoughts here too. (H/t: the inimitable HB.)

Update: Check out the response by Prof. Bernie Black (the SSRN Guru) on When To Post on SSRN.

Posted by Administrators on June 6, 2007 at 10:58 AM in Dan Markel, Life of Law Schools | Permalink


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Tracked on Jun 7, 2007 2:36:43 AM


I am glad that the commenters here appear to have more sense than the authors. Dawson's flap speaks volumes about her work as a scholar and her ability to profess/transmit that knowledge to others.

As a few have pointed out, this issue is certainly larger than posting a "shitty first draft."

The trackback appears not to have worked for me, so the Prawfs and commenters can see my post here:


Posted by: Matthew K. Tabor | Jun 9, 2007 5:06:46 PM

If this MSM article has a chilling effect on people who produce such sloppy work, then the MSM has done us all a service.

Posted by: Elliot | Jun 8, 2007 11:15:07 AM

"Well, I don't want to divulge too much, but I can assure you that at least at my law review, the name of the author was not much of a factor in article selection."

I have heard this many times. Most of the time it isn't true. Strangely, some lower-ranked schools state out front that they "carefully" review the CV of an author.

Posted by: S.cotus | Jun 8, 2007 10:44:10 AM

Well, I don't want to divulge too much, but I can assure you that at least at my law review, the name of the author was not much of a factor in article selection. In fact, finding out that a big name was the author was sometimes a detraction more than a benefit.

But if the point is that this might have a chilling effect on posting drafts - it shouldn't. Just don't post super-bad drafts. It might make profs a little more careful about throwing stuff up on SSRN without looking over it first, but I imagine that most people do that anyway.

Posted by: anonlawstudent | Jun 7, 2007 5:12:17 PM

Students, Do you ever stop to think that every year, law review “editors” complain about the “low quality” of submissions? Yet, no journal ever declines to put out an edition because there just wasn’t any good articles? Moreover, since some (but not all) editors are more concerned with the name of the author then the article’s content, perhaps you mean to say that law review staffs have to work too hard to get a “big” (or up and coming) named article published.

Finally, I have never been too clear as to whether students really know what articles are of use to the legal profession. But, this is a topic for another day.

Ted, Oh no! Not a plaintiff’s lawyer! We can’t have people with plaintiff-side experience at law schools.

Since this school seems to have many things systemically wrong with it, it seems that your allegations of “no show” are a bit more serious then your allegations of “plaintiff.”

Whatever the case, there is nothing too special about a “six figure” job. In fact, there are many people that do very little for $100,000 per year. (In fact, I am pretty sure that I am the only person that actually works for his money, whereas everyone else on the entire planet is just lazy.) So, while I would rather see law schools take their job seriously, stripped of the fact that many people (if not most lawyers) make over $100,000 per year, and plaintiffs' lawyers are lawyers (and therefore people), you seem to object to a plaintiffs' lawyer being hired by a school.

Posted by: S.cotus | Jun 7, 2007 12:32:02 PM

Anon lawprof (and I'm not sure why you remain anon for this conversation),
you write "an open discussion of someone's published work, complete with citations, is not "a public attack on a professor." It's what the scholarly process is supposed to be."

I never said there was anything wrong with an open discussion of someone's published work, particularly if it goes to its ideas and cogency. Rather the MSM article I criticized in the post focused on an *unpublished* draft of a work. That unpublished work became the basis not for improving that work pre-publication (which is what the scholarly process is supposed to be) but rather for using it as a blunt instrument to cast aspersions on the faculty member and to suggest that the person was hired as a result of personal connections. I don't think the MSM article here exemplifies what the scholarly process is supposed to be.

I would add that a draft paper submitted for publication or placed online pre-publication should not mean one must be prepared to face all forms of publicity. I think we disagree here. To my mind, having calm discussions about the shortcomings of a piece is called for; facing student protests and MSM coverage based on such a draft is not. And the danger of having more people believe the standards for online posting are increasing is that we get less of tomorrow's research today. Like I said, maybe that's a good thing, but my fear is that we need more people to post research sooner and that this event will be a setback to that. Anyway, thanks for your comments.

Posted by: Dan Markel | Jun 7, 2007 10:52:11 AM

Dan: I thought your issue was "think twice before posting early drafts." I pointed that the draft in question wasn't an "early" one -- it was a paper submitted for publication and thus a fair subject of criticism. Now, you seem to be arguing that other people submit (and publish) garbage too. That's fine, but this has nothing to do with your "beware of posting early drafts" concern. The Bepress angle here isn't about the stage at which the draft became public, but rather about the extent of publicity.

By the way, an open discussion of someone's published work, complete with citations, is not "a public attack on a professor." It's what the scholarly process is supposed to be.

Posted by: anon lawprof | Jun 7, 2007 3:03:12 AM

Anon lawprof, I take your point that it was a poorly written piece of scholarship but as anonlawstudent just demonstrated, the fact that it was submitted to a *law review* doesn't do much work in terms of distinguishing itself from other cases. When I was on HLR, I remember seeing tons of crappy stuff. Anyway, the points I was trying to raise here focused not on this particular piece's merits or demerits, but rather on whether an MSM story like this is likely to have negative effects on the speedy dissemination of research and whether this isolated incident is a sufficient basis to justify a public attack on a professor.

Posted by: Dan Markel | Jun 6, 2007 10:48:38 PM

I'm a recently former articles editor at a top law review, and even "elite" professors submit "shitty" first drafts (perhaps not this shitty, but shitty.) I haven't seen the first draft. But more telling about the shortcomings of this prof (and perhaps the shortcomings of FAMU more generally, but I digress) is the final draft. I just looked at it on Lexis, and it is very poorly written. What's worse - it's not just the grammatical problems; the article is a series of direct quotes with no analysis. It's a copy/paste job. It's lazy person's scholarship. The story's focus on the unfortunate typos was just silly, but the final product, sans typos, is not work that I personally would be proud of.

Posted by: anonlawstudent | Jun 6, 2007 9:47:46 PM

Dan, it wasn't an innocent "shitty first draft" that someone passed around to buddies. This was a law review submission -- the draft that Prof. Dawson considered polished enough to submit to law reviews via ExpressO. It ended up on Bepress public page because Dawson opted to keep it there after using ExpressO.

All improvements should be properly credited to students of Mo. Environmental Law and Policy Review. Kudos to them. FAMU's got a problem.

Posted by: anon lawprof | Jun 6, 2007 6:36:22 PM

FAMU Law is also the school that hired a plaintiffs' lawyer for a six-digit no-show job.

Posted by: Ted | Jun 6, 2007 5:37:06 PM

Anonymous cat, actually a rather provincial point of American usage.


The British practice is more logical and the usage above by miss grammar does have a logical basis: the period was not in the quoted matter.

Posted by: Bart Motes | Jun 6, 2007 5:11:17 PM

So, was she hired for her personal ties? If so, she would be the first lawyer hired in the history of lawyers to be hired for her personal ties.

Posted by: S.cotus | Jun 6, 2007 4:49:20 PM

miss grammar:

Periods and commas are always inside of quotation marks. This is true even when you're writing a "shitty first draft."

Posted by: Anonymous cat | Jun 6, 2007 4:35:27 PM

Miss Grammar, I don't have any basis for opining on just how shitty the first draft was since it's not available. Given the examples, I'm sure the writing was suboptimal. All that said, I'm worried that this newspaper piece, and others like it, will have a chilling effect on the goal of getting tomorrow's research today. Maybe if the state of today's research is so crappy, it's better that we leave it 'til tomorrow. Fine, I hear that. However, it strikes me that reporting this little story in the MSM is serving as an opportunity to do more dumping on FAMU. But maybe I'm wrong.

Posted by: Dan Markel | Jun 6, 2007 2:47:20 PM

This is more than a "shitty first draft". It is an incomprehensible first draft that reveals consistent (rather than merely episodic) grammatical problems (based on the select excerpts) and someone with solid writing and thinking skills would not have produced it or posted it online. I just looked up the "polished" version, which was published, and it is still very poorly written and hard to follow. Even based on the published draft, I am confident that my law school would never hire someone with these subpar writing skills into any profesional position, let alone a professorial or legal writing director position and under the circumstances I think the St. Petersburg Times is justified on reporting on this. The bigger story for me is how the law school and university seem ill equipped to deal with the problem of students who have lost confidence in their legal writing program. No one at the law school or university seems to be reassuring their students, which sets off major alarm bells for me about the management of this institution.

I am also not sure how highlighting an extreme example of a law school hiring a person who is obviously a terrible writer and sloppy thinker to direct their legal wiriting program in any way undermines the incentive for faculty who can write in complete sentences and think logically to post their works on SSRN or BEPRESS before publication, even where that work may contain epidosodic errors or be subject to criticism. Don't we want to subject our works to vetting by our peers before publication? Even if this means the occassional typo is brought to our attention? (Look and youi will find a number of typos in this work even after publication, and I doubt you will be able to follow the argument the author seems to be trying to make.) Maybe I am missing something?

Posted by: miss grammar | Jun 6, 2007 2:36:50 PM

A few typographical errors, and even a few grammatical errors, in a rought draft are one thing. But this paper's grammatical and stylistic failings affected the reader's ability to understand the substance. Hence, I have little sympathy for the professor at issue.

Posted by: BenJD | Jun 6, 2007 2:11:38 PM

Publicizing rough drafts is a fairly common tactic of law students. Usually it is used against to deride other law students. When I was in law school, professors thought it was cute, and gleefully told the student that was stupid enough to let his rough draft out (in confidence, some times) that he was “unprofessional.”

Posted by: S.cotus | Jun 6, 2007 1:24:36 PM

Part of the uproar about the error-riddled paper might be the fact that Dawson was hired as the director of the Legal Research and Writing Program. Still, it sucks to have a crap first draft come back to bite you like this.

Posted by: Anon | Jun 6, 2007 12:35:12 PM

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