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Sunday, December 26, 2010
On "The Literature is Vast"
For the book manuscript I'm working on with respect to First Amendment institutions, I included today a short discussion of the rules-vs-standards debate, with a typical footnote beginning, "The literature on this topic is vast" and followed by a set of canonical cites. In doing the research, I could not help but be amused by the fact that at least fourteen articles use almost the exact same words, putting "rules," "standards," "literature," and "vast" in the same sentence.* (I didn't bother to check for synonyms like "voluminous" and so on, which I'm sure would at least double the total.) So not only is there a vast literature on the rules-vs-standards debate, but there is a fairly sizable literature of articles describing the rules-vs-standard literature as vast!
Just as amusingly, although there is a vast literature suggesting that the literature on this subject is vast, everyone in the end cites the same few authors: typically, Louis Kaplow, Kathleen Sullivan, Pierre Schlag, Fred Schauer, Duncan Kennedy, sometimes Russell Korobkin or Cass Sunstein, and one or two others. So the literature of articles saying the rules-vs-standards literature is vast is roughly twice as vast as the actual number of generally agreed-upon canonical articles on the subject.
Of course, that's not necessarily a contradiction; there are lots of rules-vs-standards articles, but only a few that are widely agreed to be great. It's not clear that this is really a strong consensus; once a canon forms, it's generally more efficient to just cite to it than to bother doing the work of sorting through the literature for hidden gems or trying to de-canonize one of the unworthy chosen greats. After a while, citation begets citation without much qualitative judgment entering into it. And timeliness and good title-selection help too: Geoffrey Stone's articles on content distinctions and the First Amendment are great, but they are also relatively early and comprehensive treatments of that subject, and their titles mean they show up in every basic literature search. Still, it's amusing to note that although everyone agrees that the rules-vs-standards literature is vast, everyone also agrees that only a decidedly non-vast number of articles on the subject appear to be worth reading.
I imagine this happens all the time and that folks in every field could find similar examples. ("The literature on judicial review is vast. See, e.g., Marbury v. Madison, Bickel, Thayer, and, um, that'll do." "The literature on transaction costs is vast. See R.H. Coase, The Problem of Social Costs, and . . . no, just stick with Coase, actually.") Commenters are welcome to chime in with favorites of this kind from their own specialties.
Posted by Paul Horwitz on December 26, 2010 at 05:07 PM in Paul Horwitz | Permalink
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Comments
Bernie, I'm in favor of a complete deplete of replete. You too.
Posted by: Jeff Lipshaw | Jan 2, 2011 2:02:20 AM
Yo Jeff,
How can the literature be "replete" without an explanation of what made it "plete" the first time?
Happy new year.
Posted by: Bernie Burk | Jan 1, 2011 11:15:34 PM
Do I detect a "footnote fetish"? I must admit, as a geezer of four score, that I prefer footnotes to end notes. But my real quarrel is with long footnotes of "substance" that apparently are not substantive enough to include in the text. But I digress - as do many footnotes.
Posted by: Shag from Brookline | Dec 29, 2010 7:35:46 AM
Speaking of canonical articles and citation, one of my pet peeves is that every law review article and student note ever written on privacy begins with an obligatory paean, in the text, to Warren and Brandeis and their accursed Right to Privacy article. It is the most trite way to start a privacy article ever. I can see dropping a footnote, but give poor old W&B a rest.
Posted by: Lyrissa | Dec 27, 2010 2:07:30 PM
Try using "replete" as an alternative to "vast" and see what you get. I'm a big fan of "the literature is replete..."
Posted by: Jeff Lipshaw | Dec 26, 2010 11:17:18 PM
"The literature on public international law is vast. See Brownlie, Evans, Heinkin, Oppenheim, Shaw, unless you're a federal judge, in which case the Restatement (Third) of Foreign Relations Law is close enough and the appellate courts don't know any more about the field than you do."
Posted by: JA | Dec 26, 2010 11:08:29 PM
Marty,
And shouldn't you stop wasting time on grading so you can get back to blogging?
Posted by: Orin Kerr | Dec 26, 2010 9:11:47 PM
Spending too much time rewatching Inception rather than grading exams, eh, Orin?
Posted by: Marty L. | Dec 26, 2010 8:35:31 PM
In my field, the classic thing to cite for the view that people cite just a few canonical works when the literature is vast is Paul Horwitz, On "The Literature is Vast", Dec. 26 1010, 5:07 pm, available at http://prawfsblawg.blogs.com/prawfsblawg/2010/12/on-the-literature-is-vast.html.
Also, the classic thing to cite for the view that Horwitz's post is the classic thing to cite is Comment of Orin Kerr to Paul Horwitz, On "The Literature is Vast", Dec. 26 1010, 8:32pm, available at http://prawfsblawg.blogs.com/prawfsblawg/2010/12/on-the-literature-is-vast.html#comments
Posted by: Orin Kerr | Dec 26, 2010 8:29:49 PM
I'm currently doing an empitical piece comparing how a particular type of case is resolved by state and federal courts. This obviously implicates the "empirical parity" debate of the 1980s and 90s. My favorite are the articles talking about the "number" of empirical comparative studies (that number is maybe 1 or 2 -- there are, in fact, several sorta kinda similar poli sci studies, but analyzing how state courts are resolving unlawful search cases is different than seeing whether they are treating them differently than are federal courts, you know?). Same with the "numerous" criticisms of these studies -- there's Chemerinsky, then that woman who expanded on Chemerinsky, then all those people who merely cite Chemerinsky as being right.
Though my absolute favorite is how some people characterize the literature as well-developed, but others say that it is "sparse."
Posted by: Aspiring Prawf | Dec 26, 2010 6:31:54 PM
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