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Thursday, April 05, 2018

The Future of Legal Scholarship: That Time that Justice Breyer Made Fun of my Harvard Law Review article's title...

Tonight I take the redeye nonstop from San Diego to Chicago and tomorrow morning I speak at the much anticipated conference on The Future of Legal Scholarship.

I posted earlier this week some thoughts about my panel here. While preparing my thoughts for the conference I ran across a prawfblawg post I wrote five years ago...here's a bit of it, the Justice Breyer bit still makes me laugh...

One of the things (perhaps the top thing) we prawfs think about a lot is the role of legal scholarship. It's hard to know while you are writing a piece how much impact it will have with the community of scholars you want to speak to. Per the new citology study, unsurprisingly, articles in the Harvard Law Review tend to have a much greater chance of scholarly impact. Indeed, it is quite rare for any article outside the top five or so journals to get on the list. And yet, for me this hasn't been a measure (nor a goal) of an article's success. When I compare between my own articles (a within subject analysis), I must say I don't have a great grasp of which articles will become more central as time goes by. my article The Renew Deal: The Fall of Regulation and the Rise of Governance which I wrote while a grad student and published before going on the law teaching market (it wasn't my job talk piece which I published later) second on the 2004 list of most cited law reviews, squeezed between Tribe, Koh, Ackerman, and Lemley. A couple of years after The Renew Deal came out in the Minnesota Law Review, I published another article I had begun writing as a grad student in the Harvard Law Review: The Paradox of “Extra-Legal” Activism: Critical Legal Consciousness and Transformative Politics. That article itself had an interesting path to publication, worth a separate blog entry, the short of it was that I had decided to not publish it cause I got a job and felt it was too personal (not that it reads that way, but that's how I felt about it once I started teaching and wanted to move on to new writing adventures), and only with the urging of a friend, Scott Cummings (UCLA), who kept asking me every time we met at a conference, "Orly, why aren't you publishing The Paradox?", I reluctantly pulled it up and half-heartedly sent it. Long story made short. Back to impact. Once I had returned to The Paradox, I believed it was actually quite interesting, and indeed, here in Israel, where I am spending a marvelous sabbatical this year at Tel-Aviv University, it is the article of mine that seems to have most taken off, taught in multiple syllabi, translated into Hebrew in several journals. But in the U.S., I don't think it had been widely read. Imagine my excitement, turned into disappointment...when I saw one day that Justice Breyer cited The Paradox in a short article of his in a tribute issue in his honor. I imagined he had found my argument that we should reject skeptics who have turned away from the Supreme Court in struggles for social justice. I had imagined he loved my nuanced analysis of what is meant by those who write about cooptation. I had hoped he loved the seamless threads in which I link Brown v. Board to newer cases about gay rights, health care, gender politics and disability discrimination. And here is what I found when I began reading. This was how my Harvard Law Review article was cited by a Supreme Court Justice:

I'm also grateful to the Annual Survey of American Law for dedicating this issue to me. For one thing, that fact suggests the Law School is interested in the Judicial Branch. And that is a good sign. I realize that journals, like judges, are often under attack. The New York Times reported that Chief Judge Jacobs of the Second Circuit recently said, “I haven't opened up a law review in years. No one speaks of them. No one relies upon them.” And there is evidence that law review articles have left terra firma to soar into outer space. Will the busy practitioner or judge want to read, in February's Harvard Law Review, “The Paradox of Extra-legal Activism: Critical Legal Consciousness and Transformative Politics” ?

I think he assumed the answer. I think he asked it rhetorically. In truth, I had feared the name of the article would deter readers, and would not be as catchy as The Renew Deal. I had asked Scott and the editors at the Harvard Law Review to think of alternative titles. But we all kept coming back to the original one. We thought, and I still think, it best reflects the article's. But perhaps a different title would have gotten it more American readership. In Hebrew it received the new and catchier title, "Is Law Dangerous?" [and A small footnote: when I told my beloved former teacher, turned colleague and friend, Menachem Mautner (profesor and former dean at Tel-Aviv University), about the Breyer citation, he called it a "badge of honor". He said the shift of legal scholarship has been from a doctrinal mode of writing aimed for the judiciary and practice to a deeper level of academic writing that takes the academic community itself as its audience. I think I still believe we can simultaneously do both.]

Orin Kerr left an insightful comment back then on my post which I still value today in preparation for tomorrow's panels -- "I think it all boils down to the audience you choose. No one work can please every audience, so you just have to pick what audience(s) you care about based on your interests and goals. Some people will care about influencing the courts; others about influencing the legal culture; others about influencing legal academics; and others will just care about expressing their own views apart from their impact on others. Even within these categories, there are subcategories: For example, some will care about influencing subject matter experts in the field, while others might care about influencing generalists or particular schools of thought within the subject matter. It all depends on your interests and goals, I think, which in turn depends on what you value." 


Posted by Orly Lobel on April 5, 2018 at 07:06 PM | Permalink


"He said the shift of legal scholarship has been from a doctrinal mode of writing aimed for the judiciary and practice to a deeper level of academic writing that takes the academic community itself as its audience. I think I still believe we can simultaneously do both."

It is a question expectation management. There certainly isn't anything intrinsically wrong with law professors having the academic community of law professors as an audience; philosophy professors and other parts of the humanities do this. At the same, it is wrong to think that communities that do engage in this kind of self-absorbed analysis are going to be greeted with shouts of joy from judges and practicing lawyers.

So there is a price to be paid for increasing community solidarity and that is increasing social irrelevance within the broader world. Is that price worth it? That's for the community to decide. But as an avowed internationalist it is no shock that Breyer would be opposed to such trends.

Posted by: James | Apr 6, 2018 11:56:25 AM

I think that’s right - catchy titles are a marketing tool in general ...

Posted by: Orly Lobel | Apr 6, 2018 10:51:51 AM

I think that’s right - catchy titles are a marketing tool in general ...

Posted by: Orly Lobel | Apr 6, 2018 10:51:49 AM

Perhaps, this is why so many law review articles have titles with puns or something ... to attract more judicial readership.

Posted by: Joe | Apr 6, 2018 10:25:14 AM

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