Ephemeral Legal Scholarship (subspecies Normative Rights-Based) I

 

 WARNING: The following post is much longer than blog posts ordinarily are, and it’s the first of three connected ones. 

One of my projects in retirement is to read down the accumulated unread books in my library – some which I pretty clearly bought decades ago and never got around to reading. Works of history generally hold up pretty well; books about then-contemporary politics do all right when they really were the first drafts of history; popular science books are an odd lot because what was cutting edge sometimes turns out to have been wrong and almost always turns out to be less important than it seemed at the time. 

What about books about law? I have relatively few of them on the “unread” shelves, mostly because I did a decent job of keeping up with the book literature as it was published. Recently, though, I did take off the shelves a book of normative constitutional/doctrinal theory published in 2006. I started to read it, then basically stopped because it wasn’t saying anything I hadn’t read before (that is, some time between 2006 and now) and more important because it was simply boring, particularly when it took the Supreme Court’s then recent cases as the framework for engaging in normative theorizing.  

Curious, I then looked to see if anyone else had read the book, by doing a Westlaw search for references in law journals. (It turns out that I apparently had read at least some of it already, because I cited a specific passage in one of my articles.) The search turned up about 50 citations, a good chunk of which were in reviews of the book itself and in articles by people who I knew were the author’s friends and colleagues. In the past decade the book has been cited 13 times. 

This contributed to a sense I’d already had that a great deal of doctrinal and normative scholarship in constitutional law is quite ephemeral. I once had sketched out a plan to do a citation study of articles published in major law reviews over a period of about a decade, to see whether I could identify ephemeral works. Actually carrying out the study turned out to be a task too difficult for me (do you treat tributes as articles, when at least some engage with substantive questions but many do not? Do you somehow discount articles for a home-court advantage, that is, their being published in the law review at the author’s institution [we know that the standards for accepting home-court articles are less rigorous than those for accepting articles from outside]? What do you do about self-citations?), and I abandoned it. 

Now I return to the sense I have that a great deal of normative constitutional scholarship is indeed ephemeral. Because, as the saying goes, comparisons are odious, I’m not going to write about articles that I think are indeed ephemeral. Instead, I’m going to focus on my own work, trying to identify those parts that have no enduring significance (quite a few). I’ll offer various defenses of having written them, which focus on the value of the exercise for me personally – which leads me to suggest that maybe it’s fine that nobody reads other people’s articles and that maybe we could all just skip reading almost everything published in law reviews. Maybe write it and post it on SSRN; maybe write it and put it in your personal files. (I acknowledge that this is a perspective from a person who retired with tenure at a high-prestige school; those courses of action probably aren’t advisable for untenured people and for people who want to move up in the law school hierarchy [a desire that I of course can’t say is discreditable, having had such a motivation myself].) 

One difficulty in using my own work as the subject of this investigation is that I almost never write traditional normative constitutional scholarship, which I understand as scholarship that develops the normative basis for specific outcomes in real constitutional controversies. I don’t do it partly because I’m puzzled at why anyone should care what I thought the best (normatively speaking) outcomes should be. That’s particularly true because my normative views are a combination of conventional left-liberal positions with a sort of gonzo craziness. And if you want either component you’d be better off reading work by other people – full-on conventional left-liberals or completely gonzo writers. 

Sometimes, it’s true, I tack on normative conclusions to works whose main focus is elsewhere. I’m not sure why – maybe to satisfy what I imagine to be the features law review editors are looking for. I think I may have written one purely normative constitutional article – and that one never found a home in a law review, though I still think its analysis was both sound and interesting. (If you want to take a look, here it is: https://ssrn.com/abstract=1737930.)  

There’s one other preliminary. No false modesty here. I know that I’ve made important and enduring contributions to non-normative constitutional theory (and constitutional history), in work going back forty years or so and continuing (at least so I hope) through the present. For some contributions I’ve reached the pinnacle of citation studies: The ideas are in such common use that I don’t get cited for having originated them Many, perhaps most, of these contributions are flawed, but as Joe E. Brown says at the end of “Some Like It Hot,” “Nobody’s perfect.” And some of the contributions have been superseded by later work (here I think the major example is my idea of weak-form constitutional review, which – I have to note – was being developed independently at the same time by Stephen Gardbaum), but that’s how knowledge builds. And, as I’ll suggest, I was able to make some of these enduring contributions because I had written some ephemeral articles. 

Now, on to the main point. I divide my ephemeral works into two categories. (1) One includes purely doctrinal articles, in which I try to figure out what the current Supreme Court doctrine on some topic actually “is” – what reasons does the Court offer for its positions? What are the implications of the holdings for other related – and less-related – problems?  Can we understand how or whether the Court’s current position is consistent with unrepudiated earlier positions?  

I regard these articles as something like a pianist’s finger exercises – things you have to do to keep your doctrinal skills in good working order. And – and this is a key point – I think that good non-normative constitutional scholarship absolutely requires that its authors be really good at doing doctrine. Such scholarship, in my view, demands that authors understand constitutional law from the inside – how the makers of constitutional law experience their enterprise – so that they can adequately understand it from the outside. They don’t have to – indeed, in my view, shouldn’t – actually “take” the so-called internal point of view, but they do have to understand – deeply, really understand – what it’s like to take that point of view. If you don’t, you’re going to offer crappy reductionist external accounts. Put somewhat epigrammatically, if you don’t really understand and agree with Elena Kagan’s statement that it’s law “all the way down,” your non-normative constitutional theory isn’t going to be worth much. (You might have some insights that a good non-normative theory can use, but that’s about it.)

Doing finger exercises is important because doing doctrine well is difficult (though I think a fair number of influential scholars, thinking it’s easy, don’t bother to do it – even though they could if they wanted). The point of the finger-exercise analogy, though, is that pianists almost never perform finger exercises before audiences. Legal academics are able to do so by publishing them in some law review somewhere, but the fact that they have an audience doesn’t make them anything other than finger exercises. 

(2) The second category of my ephemeral work is somewhat more difficult to describe. Approaching it “procedurally” may be helpful. I’ve written a lot of ephemeral pieces in response to invitations to conferences and the like. I accepted the invitations because they were extended by friends, or because the conference was in an interesting city, or because it was on the West Coast and I could tack on a trip to see my sisters, …  

(My personal favorite example involved a conference that brought together lots of people committed to the normative program of “extending” liberal constitutionalism throughout the world. I wanted to hang out with them for a few days to get a feel for the way they saw the world. As it happens, the paper I wrote for that conference turned out to be, for a while, one of my more frequently cited articles, because, I think, its argument – which I now think quite naïve – captured something about the then-current Zeitgeist.) 

There was an additional requirement, though: when I received the invitation I had already had some thoughts – inchoate mostly – about something vaguely related to the conference topic. I used the occasion to work those thoughts out for myself – to see whether the inchoate ideas could be worked out in more detail. Sometimes they couldn’t, and I abandoned them. Sometimes they could, at least sort of, and I’d later see whether I could work them into some large scholarly work. The former pieces are ephemeral because the ideas they offer aren’t all that good, the latter because they are superseded by later work. Or maybe they’re ephemeral because their audience was me and other people eventually figured that out. 

I’m reasonably confident that most other legal scholars don’t see their normative scholarship as finger exercises or simple efforts to work out some thoughts for themselves. So, my account of my own work probably doesn’t generalize. Were I to offer a general account of ephemerality, I’d try work out the ideas (a) that the sociology of the legal academy requires that such scholarship track, to some significant extent, contemporary or recent Supreme Court decisions, and (b) that those decisions change in normatively relevant ways often enough to make work that satisfies condition (a) ephemeral. And I’d add a third proposition, that it’s truly bizarre to think that the U.S. Supreme Court is somehow plugged into the universe’s moral code (if there is one). To avoid ephemerality, normative constitutional theorists should ignore the Supreme Court. Then, though, what would happen when the tenure decision rolled around?