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Tuesday, December 13, 2011
Writing For Citation
One facet of the current attack on legal education is the claim that students help bear the exorbitant costs of a great deal of ‘useless’ or ‘irrelevant’ legal scholarship. Leaving aside the empirical claims about how exorbitant those costs are, I’d like to focus briefly on the second claim—that legal scholarship is largely out of touch and irrelevant. The evidence usually given for this claim is a general lack of academic citation in judicial opinions, particularly at the appellate level, where we might expect to see judges turn to the academy more regularly.
I am certainly no empiricist (though I’d like to get better—help anyone?) and so I can’t make any credible arguments about the number or trend of such citations, but I do want to raise at least one theoretical concern about the thought that we should be trying to write pieces for citation. It’s a pretty basic concern, and I want to make clear that it may not, in the end, be important enough to inform our thinking, but I wanted to raise it anyway. The problem is this: We all know how to write stuff that gets attention if we want to, but does that produce the best and most valuable kinds of work?
As just a rough and ready example, I did a little experiment with my first two posts here this month. The first one (on tenure review standards) deals with a hot, controversial topic (legal education reform), and, as I expected, got a fair amount of commentary. The second, which lays out the general thesis of a theoretical piece I’m working on, got almost no commentary. Again, not surprising—and the reason could simply be that my theory is completely and totally uninteresting. My hunch, however, is that some topics—in the case of blogging, those which everyone has an opinion on—get a lot of play, while others just don’t, even if they are worthwhile and interesting subjects.
Judicial citation is, of course, very different than blog commentary, but I think some of the same principles apply. One is more likely to get cited if one does the kind of work that regularly shows up in citations. Roughly, that might be doctrinal summaries in unsettled areas, or empirical work about contested normative claims, or historical work that aligns with particular theoretical or political preferences, etc… In my case, I really have no illusions that I can ever get a Supreme Court citation, but I could probably come up with a strategy that would make it at least more likely. Maybe if I did a thorough historical review of the original public meaning of “commerce”, one that demonstrated the impossibility of “substantial effects” analysis as an originalist matter, I could get Justice Thomas’s attention somewhere down the line. Probably not, but that might be my best shot.
My concern is that a scholarship driven by citation seems likely to be an impoverished, and perhaps even outcome-oriented, model. I wrote a piece a few years ago about the historiographical dangers of writing for a judicial audience, in which I suggested (among other things) that the result might be a “binary kind” of analysis, one that has:
historians lining up eagerly on either side of a judicially imposed dividing line. After all scholarship that squarely supports one side of [a legal] debate could turn up in a constitutional opinion, while more sophisticated studies rendered in delicate shades rarely have an impact on national policy. Thus, the scholar tempted by the constitutional spotlight not only must pick a side, she must also simplify her account for easy judicial access.
Now maybe I am overwrought on this. Maybe I’m just being protective of my own inability to get cited in an opinion. There are, after all, a great many practical benefits to tailoring scholarship to citation. Such scholarship is, by at least one definition, clearly more useful and relevant. It’s the stuff that’s making a difference in cases, and there’s certainly very real value in that. I just wonder about the potential costs if we were to move whole-heartedly down this road as an academy.
Probably the answer, as ever, is somewhere in the middle. We need both kinds of work—relevant and seemingly obscure—and we’re just reopening the debate about the proper balance point.
Posted by Ian Bartrum on December 13, 2011 at 05:19 PM | Permalink
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Hopefully, there are three points upon which we can all agree: 1. Citation is a wonderful thing, and our field is enriched by the fact that we are routinely cited by those that influence society. 2. It would be unwise to make likelihood of citation an important factor when deciding what to write (although it should be a factor of some weight). 3. There is tremendously valuable work that is very unlikely to be cited.
If you disagree with 1, then perhaps legal academia is not for you. If you disagree with 2 or 3, then perhaps academia is not for you.
Posted by: Brian Sheppard | Dec 18, 2011 11:54:01 AM
Personally, I would prefer my scholarship be cited in an Office of Legal Counsel memo, a legislative report, or Slate rather than by a court or a review. This being a democracy and all, there are a number of extra-judicial ways to influence the law.
Posted by: Corey | Dec 15, 2011 1:30:04 PM
Mitchell,
The doctrinal pieces I was discussing constitute the overlap in our Venn Diagram. I was arguing, not that doctrinal work is not valuable (although I said that a particular kind of doctrinal work isn't especially valuable), but that other sorts of work are valuable as well. I still think we have a disagreement about the other sorts of work. In response to your question about AVAP's article, I wouldn't be especially impressed by any particular citation, whether by a court or by another scholar. I do think that, over time, if a scholar is not writing work that is interesting or important enough for other scholars to take it on, rely on it, or otherwise advert to it, then that is a problem. But because I don't think the measure of good scholarship is whether it influences courts, I don't see why I should find it a problem if no courts ever cite a scholar's work.
Posted by: Sam Bagenstos | Dec 15, 2011 12:40:33 AM
Sam:
I for one see nothing wrong with an article that discusses doctrinal history, compares statutes and discusses patterns that might be developing. That type of article certainly furthers the development of the law.
Most law professors who write theory (or otherwise) are arguing for a certain point. Few are really disinterested pure neutrals. That is certainly true in employment discrimination scholarship.
Orin:
I do not define furthering the development of the law as advocacy, though that can sometimes be part of it. An article that contributes to the development of the law is one that simply furthers our understanding of law.
Annon VAP:
This is the question I think you need to have answered. If you write that article on a circuit split or otherwise, would a hiring committee be more impressed if you were cited by the Supremes or by Harvard Law Review; by the 9th Circuit or by William and Mary Law School or by a federal district court or Touro Law School. Sadly, my view is that in each of those three examples, I believe a hiring committee would prefer the cite in the law review.
I would be interested in Sam and Orin's take on this example.
Mitch
Posted by: Mitchell Rubinstein | Dec 14, 2011 10:33:50 PM
Just to be clear, which I wasn't, I'm a fan of good doctrinal work! But I think good doctrinal work has to do more than just say how a court should decide a case. It can make an argument about how a field or body of doctrine should be understood as implementing a previously underappreciated principle. It can offer a critique of the principles or distinctions that are crucial in deciding cases in a doctrinal area. It can make an argument that two bodies of doctrine that have often been understood as distinct are really the same, or that what has been understood as one body of doctrine really should be two. It can show how circumstances in the world or other areas of the law have undermined the principles or distinctions that have previously guided results in an area. It can do lots of other things, too. But I think it has to make an intellectual contribution, and I don't think "The Supreme Court should rule in favor of plaintiffs in cases presenting this issue" is an intellectual contribution. And I think circuit-split pieces -- precisely because they are motivated by the fact that the Supreme Court is likely soon to rule on a narrow issue -- have a tendency just to say how a particular issue should be resolved in the Supreme Court. If you're going to do doctrinal scholarship -- which I love! and which lots of people I admire do! -- I would suggest not focusing on circuit splits except as a jumping off point for research. (And I think Orin's two articles are the same article, and they're both doctrinal in my view. My sense, though, is that pieces about circuit splits are often much more like his Article 1 without the last ten words.)
Posted by: Sam Bagenstos | Dec 14, 2011 9:09:40 PM
One last point, if I may: I think a lot of the distinctions between "doctrinal" and "theoretical" work are matters of emphasis more than anything else. Imagine two articles that make the following arguments:
Article 1: "The Supreme Court has granted cert in case A, and Case A should be resolved in a particular way based on a new theory for area of law Y."
Article 2: "This article advocates a new theory for area of law Y, and by the way, the Supreme Court has granted cert in case A that raises this issue and the court should use the new theory in its decision."
My sense is that most law professors would describe the first article as "doctrinal" and the second article as "theoretical," even though they're pretty much the same article.
Posted by: Orin Kerr | Dec 14, 2011 7:45:14 PM
Right now, I happen to be addressing myself primarily to legislators and regulators (and their advisors), and to the other academics who write about regulatory policy. I don't write for the judiciary, and have no expectation of anything I'm currently working on being cited in judicial opinions. But this absence of citation won't be because my work has no practical importance (I think it does), or because I can't practice law (I have, and--for what it's worth--I don't think I was impaired in that undertaking by the fact that a couple of my professors had not).
My goal as an academic is to influence public policy in a positive way. I expect there are many others like me, whose success won't be measurable by the number of times they've been cited to in judicial opinions. And this isn't because my work isn't practical or immediately relevant; it's because it's just addressed to a nonjudicial audience.
Posted by: anon | Dec 14, 2011 5:58:16 PM
anonVAP,
I too am confused by Sam Bagenstos's comment (implying that doctrinal work is merely "crunching without engaging any deeper issues", although perhaps I'm reading it wrong). I would contend that good doctrinal work can and does necessarily involve engagement with deeper issues. Studying the structure, policy, and history of the tax code, in my view, is a far richer intellectual endeavor than reading a Dilettante's Guide to Game Theory and superficially applying those lessons to various areas of the law, none of which the purported scholar endeavors to master.
But I think that you may have run into resistance because you framed your question as writing about a circuit split rather than writing well-crafted doctrinal pieces. Otherwise, I wouldn't understand Orin Kerr's response, given that his work seems squarely doctrinal (no offense intended).
All of that being said, there's no doubt that interdisciplinary work is all the rage right now, but I still think there's room in the academy for law professors whose primary interests relate to the law (or at least I hope so, for my sake).
Posted by: andy | Dec 14, 2011 5:14:39 PM
I agree that law review articles shouldn't be much like a brief, but I guess my question is whether it's really true that most circuit splits (or similar open legal questions) are amenable only to "rather basic statute and doctrine crunching without engaging any deeper issues." That certainly seems to be my impression of how student work examines these types of issues, but I wonder if there were more of a culture of academics being engaged in addressing these questions, whether the analysis wouldn't be richer.
Likewise, I think there is something to be said for listening to someone just because they are a law professor who presumably brings more thoughtfulness, independence, context, perspective, etc. to bear on an issue than litigants or their amici.
Posted by: anonVAP | Dec 14, 2011 2:27:52 PM
I agree with Orin's point, and I am sure that everything has been said on this evergreen topic, but Mitchell's comments have encouraged me to take a break from working on my latest article that will not tell any judges how to decide any cases and instead participate in this discussion. It seems to me that there are lots of proper goals of legal scholarship that are not simply "impressing your Dean" but also are not influencing the development of the law in the courts. As these discussions are always -- always! -- about the biography of the persons contributing to them, let me be solipsistic for a second and talk about the piece I'm taking time away from writing by commenting on Prawfs. That piece is basically about how the doctrinal choices by lawyers working on a set of cases in the 1970s and 1980s interacted with the political dynamics in state governments at the time to lead to a set of results that the lawyers did not fully anticipate. It doesn't tell one judge how to decide one case, but it offers an analysis of how lawyers and legal institutions interact with the surrounding political culture to have effects on the world. What is wrong with that? Law professors may be among the people best positioned to analyze these sorts of connections, which are incredibly important to understanding the legal system. Now maybe your "influence the law" criterion would extend to something that has lessons for lawyers, even though the lessons are not obvious or the point of the piece, but then lots of stuff that isn't read by courts should qualify. I wrote a book that connected disputes over the Supreme Court's ADA case law to longstanding tensions and divisions within the disability rights movement. Some of the book criticized certain judicial decisions, but a lot of it was just an analysis of the disability rights movement as a social movement. Again, what is wrong with law professors analyzing the influence of important social movement actors on the law, even if there is no clear takeaway for lawyers and judges? Sometimes I write on antidiscrimination theory. That work may help us understand what is at stake in various legal disputes, but basically no legal disputes over the scope or application of antidiscrimination law have turned on these theoretical questions for a very long time, so the work isn't particularly helpful to lawyers or judges. But isn't research on the theoretical stakes of legal disputes (a) valuable and (b) something law professors may be well equipped to perform? And why shouldn't law professors also engage in "basic research" relating to questions that may help us understand how to learn about or understand the law and legal institutions? That research has to be done if our understanding is to advance, after all.
I don't think there's anything inherently wrong with professors writing circuit-split pieces. The problem is that those sorts of pieces often lend themselves to rather basic statute- and doctrine-crunching without engaging any deeper issues. And if all I am going to do is argue that, based on the tools of conventional legal analysis, an open legal question should be resolved one way rather than another, why should anyone listen to me just because I am a law professor? If I'm so convinced my position is right and I care about the issue enough to spend time on it, why shouldn't I be representing a client whose case raises that issue and presenting my arguments to the court? (This is something that lots of law professors in fact do, by the way.) I don't think it disrespects or shows a lack of connection to practice to say that a law review article shouldn't be that much like a brief.
Posted by: Sam Bagenstos | Dec 14, 2011 12:56:31 PM
AnonVap:
I don't think it's *always* a bad thing to write on an issue that implicates a circuit split. But the problem is that the article amounts to an amicus brief, and it is obsolete after the case is resolved. If you want to write an amicus brief, it's better to just write the amicus brief: The Justices and clerks are much more likely to see it than they are an article.
Mitchell,
You appear to believe that influencing the development of the law means influencing a person's view on what a particular rule should be in a particular case. But in my experience, that's not how influence generally works: Scholarship tends to influence by suggesting frameworks for thought, or for emphasizing certain influences on the law, rather than imparting a preference for a particular rule.
Posted by: Orin Kerr | Dec 14, 2011 12:33:50 PM
AnonVAP got it! Writing an article about a circuit split can be very useful to the bench and bar. With respect Orin, if one is not writing to further the development of the law, then why is professor writing?? I also do not believe that it is appropriate for profs to influence their students' thinking. Our job is to teach students how to think on their own. Casebooks written by professors are indeed more practical than most articles. However, many casebooks do not teach students in a useful manner (there are exceptions, particularly in subjects such as FRCP and Con Law)because they include cases from many different jurisdictions and are therefore "national" in scope. A student who uses such a text in an area that I teach, employment law, for example, cannot practice effectively in any jurisdiction. I believe that most texts are written in that manner because the FT professors do not have practical knowledge or skill-never having practiced. I work in a union now and have worked in several large NYC law firms. The reality is that now more than ever students are coming out of law school without any ability to practice law. They learn on the job. Sadly, until law schools start to put more of a value on "practice" as opposed to that Yale P.h.d nothing is going to change. So good meaning people like the Annon VAP above are going to continue to write meaningless articles because they need to get hired or impress a tenure committee.
Posted by: Mitchell Rubinstein | Dec 14, 2011 11:38:04 AM
Maybe someone can answer a question I have related to this debate. My impression is that articles tackling circuit splits are deemed worthy only of student notes, not of serious consideration by professors. Why is this the case? Certainly writing a circuit split note may be pedagogically beneficial for the student, but I'm not sure they generally make that great a contribution to the debate. In contrast, wouldn't a thoughtful analysis of a circuit split by one or more professors in the area offering their own insights or different approaches to the problem (whether lining up on one side or the other or presenting a more nuanced analysis of the issue) be beneficial and immediately useful to the bench, and influence the development of the law (which, I believe, should be at least one goal of legal scholarship)? I'm just confused why circuit splits are not more widely tackled by the academy.
Posted by: anonVAP | Dec 14, 2011 9:48:51 AM
Mitchell, even if one assumes that the goal of legal scholarship is to influence the development of the law in the courts -- a controversial view, to be sure -- legal scholarship routinely influences the law in the courts by influencing how professors think about the law. The process takes a lot of time, and it leads to a lot less credit for the scholar. But it's still an influence, I think. It works something like this: Professors who are influenced by scholarship write the casebooks and commentary and teach the law as they know it, and they therefore influence the students they teach; the students eventually become clerks, lawyers, and judges, and interpret the law based at least in part on what they learned in law school.
Posted by: Orin Kerr | Dec 14, 2011 1:55:02 AM
I am an adjunct law professor who has published 16 law review articles and a practicing attorney for more than 25 years. I would like to think that I understand this issue-but I simply don't. I do not understand the utility in writing an article that is simply going to be read by a few others interested in the topic or a tenure committee.
The purpose of writing a law review article, as I see it, is not to impress your Dean. It is to influence the development of the law. For that to occur, your articles must be read by judges, clerks and yes, lawyers who might cite you in a brief.
I have been told by several senior faculty that it is more important to be cited by other commentators than by courts. That is complete rubbish.
The problem is that too many (almost all the recent hires at law schools these days) law professors are simply incompetent to practice law because they have very little legal experience. Sorry, clerking for two years with summer associate experience is not equal to practice. As a result professors do not write about practical issues. Chief Justice Roberts and others are spot on in their statements about legal scholarship today. This is not going to change until law schools start putting a premium on legal practice. After all unless you teach at one of those top 5 schools, most of your students, who pay your salary, are going to go into practice. From the chair that I sit in, though some law professors give lip service to the importance of practice, the ones who control law schools simply don't.
Oh yes, law schools may point to the lowest paid and untenured adjuncts to teach practice. While that is a point for another posting, suffice it to say that most students would be shocked to know that the doctrinal tenured faculty do not research anything worth writing.
Mitchell H. Rubinstein
Adjunct Professor of Law New York Law School
Senior Counsel New York State United Teachers
Posted by: Mitchell Rubinstein | Dec 13, 2011 9:52:35 PM
I too think the focus on a judicial audience, especially a federal appellate audience and above all on the Nine, is misguided.
However, I come to a very different conclusion about who the audience should be instead. In my opinion it is one's present and future students who should be the target audience, and since the vast majority of students at the overwhelming majority of schools will be practitioners (or leave the profession altogether) that means writing for practitioners.
See this thread for a previous back on forth on this issue.
http://prawfsblawg.blogs.com/prawfsblawg/2011/07/amicus-briefs-and-the-academic-judge-divide.html
Posted by: Brad | Dec 13, 2011 9:19:29 PM
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