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Monday, May 5, 2014

Criticism of Legal Scholarship: Don't Judge an Article by its Title

At ACS Blog, Reuben Guttman criticizes the power of US News Rankings, and argues that these rankings have prompted law schools to select future lawyers, judges, and scholars on the basis of test scores and GPAs. This overall argument, while familiar, is important, and Guttman provides a largely compelling argument.

But one of the later paragraphs of Guttman's post caught my eye:

As to the faculty, US News appears to put some premium on scholarship. This means law schools are urged to hire those teachers that publish. But publish what? Do faculties of law schools have to publish books and articles that are useful to practitioners, judges, or legislators or, at least, indirectly impact the lives of people? No. They just have to publish. And as they are urged to publish, they strive to publish about things that no one has written about. Consider these articles: "Postmodernism and Dworkin: The View from Half-Court," 17 Nova L. Rev. 799 (1993); "South Park & The Law," 14 Tex. Rev. Ent. & Sports L. 47 (2012); "Professor Kingsfield: The Most Misunderstood Character in Literature," 33 Hofstra L. Rev. 955 (2005); and "Capital: Conferring with the Flowers: History and Class Consciousness in L. Frank Baum’s Land of Oz, a General Theory of Magic and Law," 20 S. Cal. Interdis. L. J. 67 (2010). 
Does the focus on the esoteric advance the profession or prepare students for the practice? Even Justice Roberts recognizes the irrelevance of this type of scholarship. During the Fourth Circuit Judicial Conference, Justice Roberts stated, “If the academy wants to deal with the legal issues at a particularly abstract, philosophical level, that’s great and that’s their business, but they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.”
As a break from outlining federal courts, I thought that I would cite check Guttman's point here.

To begin, I'll admit that Capital: Conferring with the Flowers: History and Class Consciousness in L. Frank Baum's Land of Oz, a General Theory of Magic and Law, is indeed an esoteric article on communist theory and Baum's book, Land of Oz, and is written in a disjointed and platitudinous manner. Of course, the journal in which the article is published presents itself as an "Interdisciplinary" journal, so perhaps the author's choice of subject and style of writing is characteristic of a certain nonlegal discipline. But I will grant that this is an acceptable example of overly theoretical work.

But let's consider the other three citations Guttman provides...

South Park & the Law is a student note, so right off the bat it is a misrepresentation for Guttman to claim that this is an example of something that is written by "faculties of law schools." Moreover, the note is a case note describing Brownmark Films, LLC v. Comedy Partners, 800 F.Supp.2d 991 (E.D. Wisc. 2011), which involved the makers of South Park. While case notes may be limited in their scope, they are a common form of legal scholarship, with journals like the Harvard Law Review devoting portions of most issues to summaries of recent cases. The note is certainly not as esoteric as Guttman wants to make it sound.

Professor Kingsfield: The Most Misunderstood Character in Literature spends a little bit of time talking about the Paper Chase's Professor Kingsfield, but the article's primary focus is the use of the Socratic method in law school teaching. While this may not be of use to lawyers or judges, it is certainly relevant to the practice of law as a whole because it discusses the earliest stage of that practice -- the educational stage. While Guttman may want to make the article seem to be a discussion of law and film, the author simply uses the Kingsfield character to grab attention and introduce the central point.

Guttman's reference to the article, Postmodernism and Dworkin: The View From Half-Court, is probably the most entertaining of Guttman's mistaken citations. The article satirically criticizes overly-theoretical legal scholarship by applying postmodern legal theory to basketball's Half-Court rule. The article insinuates that it is taking a jab at legal scholarship from the beginning. From the introduction:

In Part I of this Essay, we present the first part of our argument. In Part II, we present the next major aspect of our argument. In Part III, we include all the stuff that we thought of but which did not fit into the major parts of the argument presented in the first two parts. Finally, in the conclusion, we conclude our Essay.
And a few selections from the footnotes:

2. [In support of the sentence: "Before engaging the interpretive theories of law provided by Dworkin and the postmodernists, it is essential that the reader have some notion of the Half Court rule in basketball and how it gives rise to interpretive problems."] Cf. United States v. Carolene Products Co., 304 U.S. 144, 153-53 n.4 (Why not? It's used as a source for everything else in law.). 
. . .  
17. On deconstructionism, see JACQUES DERRIDA, OF GRAMATOLOGY (1974). See also every issue of the Yale Law Journal since then.
The Postmodernism article attacks the very scholarship that Guttman is criticizing. It is possible that Guttman cited this article to support his claim that legal scholarship is impractical (rather than as an example of impractical scholarship), but if that was his strategy, he certainly hid the ball.

Criticism that law reviews are impractical is certainly not a new phenomenon, and, admittedly, it is not the main point that Guttman is trying to make. But Guttman (and other critics) lose credibility when they make points without support, or by citing examples that are not at all supportive of the claim. The point goes unsupported, and the post as a whole runs the risk of being overshadowed by the sloppy mistake.

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