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Friday, September 15, 2017

Conference at Marquette Law: The Ethics of Legal Scholarship

I write today from Marquette Law School in Milwaukee. (Milwaukee's airport, incidentally, contains Renaissance Books, easily the best bookstore in any airport I have ever seen. Milwaukee: Come for the airport bookstore, stay for the actual city!) Thanks to the hospitality of the school and to organizers Chad Oldfather and Carissa Hessick (I am a kind of junior co-organizer to them), we are holding a two-day conference called "The Ethics of Legal Scholarship." 

The issues, obviously, are plentiful, from what and how one writes to the substance of the scholarship to the publication process. The framework for the conference is a little unusual. The Marquette Law School is generously going to publish the symposium results. And we hope to lead off the symposium issue with what one might call a Draft Restatement of the Ethics of Legal Scholarship: A general set of principles, norms, and rules that do or should describe what constitutes ethical conduct for and in legal scholarship (and perhaps, although this will be a matter of discussion, what ethical norms ought to apply to "non-scholarly" work, like op-eds or amicus briefs, that might not constitute "scholarship" but are written under the title and ostensible authority of the scholar). That's the plan; whether it will happen or not remains to be seen. And having some kind of Restatement does not preclude the participants from publishing separate concurrences, dissents, or comments on that document. Indeed, the "admission ticket" papers already produced by the conferees are excellent and varied in their views and approaches.

This is a subject of great interest to legal academics and (some) others. I think it's fair to say that in conversation, law professors agree widely that there are ongoing problems and issues with legal scholarship, some or many of which could be characterized as professional "ethical" problems. It's also fair to say, I think, that those private conversations are much more candid, and often much more cynical, than the public discussions. There are understandable and perhaps forgivable reasons for that split between public and private discussions, but the more of a gap there is between the state of the public and private conversations, the more it demands to be addressed publicly and candidly at some point.

I'm excited about this conference, which has been in the making for some two or three years. I'm grateful to Chad and Carissa for organizing it, to Dean Joe Kearney for his generosity in having Marquette host it, to the Marquette Law Review for its interest in supporting and publishing the symposium, to the Marquette staff, and not least to the participants themselves.

I'm leaving the comments open. Obviously, this is the kind of post that lends itself to unserious responses, or responses that are perfectly serious but obvious or unhelpful. "Oxymoron," "contradiction in terms," things of this sort: they could end up being true, but we're all familiar with them already, and we've already resumed the conference room for the next couple of days. For those who thing the conference and its Restatement approach already assume too much or are undertaking an impossible task or the wrong task, let me reassure you that one of the conference participants is Stanley Fish, so I'm sure there will be opportunities for general skeptical questions and the throwing of assorted bombs.

But I, or we, would be grateful for comments offering more specific ideas and proposals. For instance, one might expect comments: 1) identifying ethical problems in legal scholarship that are given too little attention; 2) identifying the most important or urgent ethical problems in legal scholarship, even if they are already given attention; 3) asking questions about the definition of "scholarship" or "legal scholarship," what counts as legal scholarship, and what kinds of norms, if any, should apply to writing by law professors as law professors but outside scholarly forums, such as tweets, blog posts, "law professors' letters," op-eds, and so on; 4) proposing specific ethical norms for legal scholarship, especially those that might, as it were, be part of a Restatement or code of the ethics of legal scholarship; and 5) raising general questions, positive or critical, about what the conference should try to achieve or whether it is possible to achieve anything at all. Your contributions and suggestions and questions are appreciated. As far as I can while the conference is ongoing, I'll keep an eye on them and bring them up at the conference where they are helpful. I may offer a couple of posts along the way, or after the fact, summarizing particular aspects of the conference and the discussion.     


Posted by Paul Horwitz on September 15, 2017 at 11:05 AM in Paul Horwitz | Permalink


All across the legal community, from academia to practice, everyone appears to have accepted that there is a lot of "coding" or "doc review" to be done and that these types of "minor" determinations are not worthy of a credit as an author to academic articles or a signatory to legal papers. Maybe it is good to change that practice. Still, it is important to note that other fields regard their own tradition of naming even the most tangentially related persons as co-authors something worthy of jokes: https://tapas.io/episode/64304.

Posted by: anon | Sep 18, 2017 11:25:10 AM

Was there any discussion of a ceiling or floor on the ethical amount of time for a traditional lawprof to be spending on traditional "scholarship" relative to his/her other professional responsibilities and opportunities?

I sense various market forces and cultural norms shape how the average lawprof allocates professional time in the average week/month/year. And these forces and norms surely evolve throughout a lawprof's career and find different expressions in different particular places and moments. But these realities make it potentially even more valuable to have some statement, circa 2017, of what might ethically be considered too much or too little time spent on traditional "scholarship" relative to other professional activities.

Posted by: Douglas A Berman | Sep 18, 2017 10:30:06 AM

I didn't mean to suggest that there are RAs off writing entire articles for professors, or even large sections. However, I would not at all be surprised to find RAs making contributions which would require specific attribution to use without running afoul of plagiarism rules. Even something as simple as a professor asking an RA to pull SCOTUS cases on Topic X requires the RA to make a determination that A v. B is relevant and C v. D is not relevant, which would seem to then fall under the professor taking the RA's ideas and representing them as the professor's own (the idea that A v. B is relevant to the discussion). It's maybe not the most insightful ideas being re-used by the professor, but I've yet to see a plagiarism standard make that sort of distinction.

Perhaps there's just some unwritten standard for plagiarism where it's not just taking the words or ideas of another, but taking specifically *protected* words or ideas of another, and that there is some realm of unprotected work which may be used without a specific citation -- things like common knowledge, or work produced by a subordinate.

Posted by: Derek Tokaz | Sep 18, 2017 10:08:33 AM

I appreciate the comments. With the conference over but work on the document continuing, I'll just add the brief and non-substantive but, I hope, reassuring note that many of these issues came up at the conference. Of course, feel free to add further recommendations, whether in the comments or via email.

Posted by: Paul Horwitz | Sep 18, 2017 9:31:01 AM

I'm just one former RA, but, while I certainly gave the professors who hired me a *lot* of mostly unsolicited substantive feedback, I don't think that I wrote any of their work, and not because, I don't think, they left that task to better RAs. When RAs wrote things, or whenever my writing anything with my professors was discussed, the terms were always co-authoring.

I wrote a very lengthy comment on academic advocacy and blogging, but it's really too long, so I will just say: I think there's a serious ethics deficit in academic amicus briefing and blogging these days (a problem from which I exclude Prawfs and its regular bloggers entirely, as well as all the non-anonymous participants in this thread).

Posted by: Asher Steinberg | Sep 17, 2017 4:19:26 PM

I think it is a canard to suggest that RAs are busy writing professor's law review submissions, and just aren't being given credit for it. I know of no professor who uses RAs in any way remotely similar to Derek's description.

Posted by: Anon | Sep 17, 2017 3:28:07 PM

Derek, although I'm not sure you have accurately identified the role of research assistants -- you may be right for many professors, but I really don't know, as I don't use RAs this way and haven't talked to colleagues about how they use them -- I suspect different treatment is probably more explained by two things. First, I would guess that the RA was very likely guided by the professor, who told the RA what to look for, where to look, what to say, etc.. I can see how that would make the credit a little difficult to assign. Second, my sense is that research assistants are primarily seeking a recommendation from the professor, plus income from the institution, more than credit for ideas. If the hoped-for "reward" is in the recommendation, that may be where it is given. But even if that's the practice, that doesn't justify it; maybe the existing practice is problematic, and there should be no special rules for RA assistance.

Posted by: Orin Kerr | Sep 17, 2017 9:58:28 AM


I think the issue of crediting research assistants is a pretty interesting one.

If you imagine a professor simply hiring someone to write an article, and then submitting it under his own name, that'd be clearly unethical and up in the Class A Felony category for academic misconduct. Meanwhile, hiring a research assistant to (among other duties) write small parts of your essay, that's just standard practice.

I'm not sure why there's a research assistant exemption. It can't just be that the research assistants were given credit in the first or second footnote. That's not how citations work. I certainly couldn't put a footnote very early on saying "Many of these ideas and some of the actual text comes from Orin Kerr, but I'm not going to note each individual instance when I'm borrowing his ideas. It's just kinda scattered throughout." I think our norms for citation pretty universally require each individual instance of using someone else's words or ideas to be credited.

Is it that the research assistant was hired? If plagiarism is the offense of taking someone else's words or ideas and representing them as your own, then the work-for-hire argument would be that by paying the assistant the words and ideas become yours. ...But if that argument works, then we'd allow papers that were wholly or substantially written by an article factory. And of course we wouldn't do that.

I suspect the carve out for research assistants exists because they simply lack any sort of bargaining power, so the people making the rules decided to allow taking advantage of the cheap student labor. I'd be surprised to see an principled argument that can justify less credit than co-authorship for research assistants who were involved in the drafting of any part of an article.

Complicating the issue further is how we ought to credit a research assistant who only does research, but no writing. Odds are they didn't simply pull cases without commentary, but instead are doing some analytical work. It's "I think this case is relevant because of XYZ." And once you get there, the article author is taking someone else's ideas to present as their own.

And going one step further back, what about the professors who teach seminars on the same topic they're presently writing about? If a student's in-class comments or essays give that professor new ideas, should those be credited? We don't credit insights gained from casual conversations with our colleagues, but a classroom setting feels different, especially one where the professor has directed the conversation towards his research.

Posted by: Derek Tokaz | Sep 17, 2017 9:03:47 AM


Sure, whenever you're willing to reverse Sonzinsky v. United States, FCC v. League of Women Voters of California, South Dakota v. Dole, and Board of Regents v. Southworth.

Posted by: anonstudent4321 | Sep 16, 2017 4:40:26 PM

Every professor should in every article identify all sources of funding for their scholarship. If their sole compensation is their school, they should say so. If they work on legal work other than their school, they should identify it. Of course if anyone pays them or supports the work, they should say so.

Posted by: anonprof1234 | Sep 16, 2017 3:29:11 PM

Orin, thank you for your reply. Actually, I think your reply proves my point about the need to keep the costs in mind. Here is the price list for Scholastica: https://scholasticahq.com/institutional-accounts. As you can see, $2,925 only buys 500 submissions, and that discount only applies if the administrator is smart enough to buy the credits in units of 500. Otherwise, the institution is billed the full cost of $6.50 per submission. Across the entire faculty, the difference in costs between Expresso and Scholastica can easily add up to tens of thousands of dollars.

No law professor I have asked about this ever knows how much he or she spends in submissions or how much their school pays. And this lack of awareness is a problem. Scholastica is far superior to and easier to use than Expresso. It also is inconvenient to figure out which of the law journals that accept submissions through Scholastica also accept them through Expresso. I would not be surprised at all that legal scholars run up huge bills on Scholastica without even knowing it.

Posted by: anon | Sep 16, 2017 11:20:02 AM

While I appreciate Anon @ 11:57's question -- and I think we should always be careful about unnecessary faculty costs that get passed on to students -- I wonder if Anon's pricing estimate is really far out of line. As I read Expresso's website, they offer an "Institutional Faculty Complete Prepaid Plan," which is currently $2,508 per year, for unlimited electronic deliveries by the entire faculty. If I'm right in interpreting that as $2,508 for the entire school's faculty for the entire year, no matter how many electronic deliveries are made, that's a lot cheaper than $80,000. And it would mean no marginal increased costs for more electronic deliveries.

Details: http://law.bepress.com/expresso/ExpressO_brochure.pdf

Posted by: Orin Kerr | Sep 16, 2017 12:10:51 AM

Anon @8:46, yes, massive wastage of submission fees is a problem. Take the problem Anon @8:42 (was that you?) pointed out, "do not submit to a law review when you would never accept an offer to publish from that journal." That problem exists because legal scholars at schools do not have to pay the submissions fees out of their own pockets. They can afford to submit to all the lower journals not to get placed at those journals but to buy expedites, which, in effect, is buying placement. I do not quibble about conference fees and research support. Doing actual research work and improving the state of knowledge requires money. But submissions to journals just to buy expedites? That is not productive and does nothing to add to scholarship.

And there is a human cost. A 40 person faculty, each of whom spends $1,000 on submissions fees for every submission season, will spend $80,000 a year. That's enough for full-ride scholarships for two deserving students. That's enough bar prep for, what, 30 students? That's also enough to avoid having to ask the graduating or newly graduated alumni, who are still paying tuition debt and who may not even have jobs, for donations. Multiply that across all the law schools, and how much is the entire system spending on the expedite arms race? Is that ethical?

Let us change the problem here. Let us assume that a judge used some of the library funds of the court to submit his or her work to law journals. You probably would not mind that the judge submitted to journals where he or she was willing to be published. But would you, as taxpayer, agree to the use of public funds to buy expedites?

Posted by: anon | Sep 15, 2017 11:57:29 PM

To what extent has social media (particularly this blog's encouragement of anon comments in the angsting threads) reduced norms of good behavior about attribution & submission? Ethical behavior is a cultural practice which I think the threads here undermine.

Posted by: Dave Hoffman | Sep 15, 2017 9:37:02 PM

@anon 11:59: I'm a bit surprised to see the objection to law profs' "flagrant" spending on submission fees. Does that really strike you as a big deal? Everything else that goes into law profs' compensation (salary, research support, retirement and heath benefits, overhead, research assistants, travel to conferences, etc., etc.) and you're worried about us spending $500 on article submissions?!?

I'm also not aware of how it's possible to "buy placement." I have always, up till now, had to cover the cost of submission fees out of my own pocket and believe me, if there was a way for me to buy placement when I was a third year associate I would happily have done it. Putting a piece through another submission cycle because you struck out the first time isn't buying placement any more than going through the FAR more than once.

Posted by: Anon | Sep 15, 2017 8:46:32 PM

Ethical principle: do not solicit or allow professors who are friends at other schools to pressure the law review at their school to accept your piece.

Posted by: Anon | Sep 15, 2017 8:43:51 PM

Ethical principle: do not submit to a law review when you would never accept an offer to publish from that journal

Posted by: Anon | Sep 15, 2017 8:42:00 PM

Ethical principle: Withdraw all other submissions when one accepts an offer of placement (No - "let's just see who else takes it")

Posted by: Anon | Sep 15, 2017 8:41:10 PM

"Here's one: The norms of giving proper credit when ideas or even writing came from someone else."

That's right, stop writing "Per Curium" at the beginning of an opinion. At least write the name of judge/justice and their clerks. If every judge/justice in the majority contributing significantly to it (planned parenthood v. casey), then write everyone's name at the top.

Posted by: O'Conman | Sep 15, 2017 4:48:52 PM

Dagger footnotes at the time of submission: assume this article has importance and originality because look who has given me helpful feedback and look at all the great places where I presented the paper.

Posted by: Norman Stein | Sep 15, 2017 4:21:18 PM

If you are looking for more, can I recommend this thread on Twitter (and Paul's thread that it builds off of)?

Posted by: CBHessick | Sep 15, 2017 4:01:22 PM

"identifying ethical problems in legal scholarship that are given too little attention...."

Here's one: The norms of giving proper credit when ideas or even writing came from someone else. Perhaps a research assistant did a partial draft; or perhaps a really key idea in an article came from a workshop suggestion by an outside reader. What is the appropriate way to recognize that contribution? I think different profs have different answers, but a common standard might be helpful.

Posted by: Orin Kerr | Sep 15, 2017 2:35:50 PM

Is there a line between scholarship and advocacy? If there is one, is it proper for professors to engage in advocacy in their professorial capacities?

Posted by: biff | Sep 15, 2017 1:50:44 PM

The most important point to me is that no one should make a claim about originality unless is it absolutely true. Students are easily tricked by professors who claim to make original arguments but are actually just rehashing existing work.

Posted by: Anon | Sep 15, 2017 12:30:36 PM

> proposing specific ethical norms for legal scholarship, especially those that might, as it were, be part of a Restatement or code of the ethics of legal scholarship

(1) Every single legal scholar should know and track how much he/she spent on submission fees, even if the school takes care of the tab.
(2) Every scholar should be conscious of the fact that the money came from donors and students, who may even be taking on debt, and should not be profligate or callous about the money.
(3) The fact that the school takes care of the tab does not mean that scholars should use this financial power to buy placement. For example, while this power enables scholars to resubmit simply because of disappointing placement, it should not be used for such purposes.
(4) No scholar should spend more than $500 on submission fees on any article, including rewrites and resubmits. $1,000 is simply unconscionable.

Posted by: anon | Sep 15, 2017 11:59:07 AM

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