Monday, April 02, 2018

Some thoughts after reading two contributions to the Marquette symposium on legal scholarship

Mark Tushnet

My kids say that they’re going to have “It’s Complicated” engraved on my gravestone. That’s why I don’t tweet (and often have misgivings about blogging). I suspect that the only way to “promote reasoned debate” on Twitter is to point out some complexities that other Tweeters have overlooked – which probably would come across either as snark or as trolling. My guess is that “Yes but” isn’t likely to get many retweets.

Another thought was that lots of legal scholarship consists of throwing stuff out there and seeing what catches hold. And, in that mode, maybe the stuff doesn’t have to be fully developed (a point relevant to Paul Horwitz’s contribution). I’m thinking of the following: In 2003 I wrote an article called “Constitutional Hardball,” published in a symposium issue of the John Marshall Law Review. The idea sat there for a while without catching hold. I have several thoughts about why: It was in a symposium issue, and no one except the contributors read symposium issues. It was in the John Marshall Law Review, and no one (full stop) reads the John Marshall Law Review. And, relatively shortly after I published my article, two other articles were published in the University of Pennsylvania Law Review (a higher prestige journal), on related ideas (constitutional crises and constitutional showdowns), so when someone thought about something in the general ballpark of these concepts, they cited to those articles rather than mine. Then, over the past year my “hardball” article was (re?)discovered – to the point where it’s probably going to fall prey to the bane of citation studies, the idea that becomes common knowledge so that no one cites to the place where it was originally articulated. My point here is that maybe we can assess contributions to knowledge only retrospectively, and that “criteria” purporting to identify good scholarship today might not actually do so.

Finally, Horwitz describes the standard format of a law review case note (which I think he takes, probably accurately) as a metonym for the standard law review article. Each concludes by attempting to answer the question, “What’s the normative payoff?,” and – because (aha!) it’s complicated – the answers are always inadequate. For the past several years I’ve been reading extensively in the law review literature produced during the 1930s (both pro- and anti-New Deal), and – though styles have changed – they are indistinguishable in form from contemporary law review articles and case notes. The ur-texts, I suppose, are case notes in the Harvard Law Review. In the 1930s they were a lot shorter than today’s (which have something like an eight-page limit/requirement), but the format is the same. Notably, they always end with a one-sentence normative payoff (rather than, as today, a one- or two-paragraph payoff). Here my thought is that maybe what Horwitz is describing is what constitutes legal scholarship, and if so perhaps his criticisms of it as falling short of scholarly ideals might be misplaced. He asks for “candor” and “integrity,” but maybe those ideas have to be indexed to the field – that is, maybe what we should be looking for is “candor as understood within the field of legal scholarship,” and similarly “integrity as so understood.” And it might be that there’s quite a lot of that rattling around.

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