In Praise of Legal Oddities: Explaining My Research Agenda

During my second year of law school and for a few years thereafter, I dove into the world of writing and publishing legal scholarship. I wrote or coauthored seven law review articles from my second year of law school until about a year after graduation. All this while I was going to class, blogging, doing law review and moot court, and (in my third year of law school) working as a TA in undergraduate philosophy classes. 

My writing came to a halt when I began practicing civil litigation. Billable hours, being expected to read and respond to emails at any given moment, and learning the ropes of a new field (after a year doing criminal law) took up virtually all hours of my day. Unable to find a balance between work and free time, the time and energy I needed to write legal scholarship vanished.

After a few years of this (and after a few lateral moves), I ended up where I am now. I'm still busy, and the work is more complex and engaging than ever, but I've been able to strike a better degree of balance at my current firm. Because of this (and because of my need to find a distraction during several particularly difficult evenings of non-billable e-discovery administration work), I decided I'd try to get back into the game of legal scholarship. This led to my first published article in nearly six years--Shooting Fish.

I wrote Shooting Fish for fun--although a need for a thorough study of every state's laws restricting shooting fish with guns also came about due to a desire for completeness after writing an initial, partial draft of the article. It's my hope that the finished product demonstrates how much fun I had writing and researching it. 

Beyond being a fun article to write, and getting a bit of attention from others in the legal community, Shooting Fish reinvigorated my interest in academic writing and research. I began some serious research into originalism and related constitutional issues along with other timely legal topics. But I also kept my eye out for quirky subjects that could be the next fun article--something that could distract from the rigors of everyday work.

Fast-forward to today. I have three more articles accepted for publication, and two others completed and pending acceptance (although my hopes for one of them aren't too high). My writing at this point can be classified into about three rough categories:

1. Writing on legal issues relevant, or tangentially relevant, to my civil litigation practice. This takes up the smallest portion of my recent writing, and consists primarily of my article, The Citation of Unpublished Cases in the Wake of COVID-19. 
2. Critiquing constitutional originalism. My friend Al Hiland and I coauthored Originalism's Implementation Problem, which marks the start of a larger project of critiquing originalism. Our broader project is to undercut originalism as an acceptable theory of constitutional interpretation, and begins with exposing the gaps between academic originalism and "originalism" as described in politics and judicial practice. I've already written another article in this vein critiquing recent work by Stephen Sachs on treating originalism as a standard, rather than implementation procedure, and there are several other outlines and drafts in the pipeline.
3. Legal oddities. Continuing the work that I started with Shooting Fish, I've written two other articles exploring odd and underdiscussed areas of law. I've written a survey of attempts at invoking trial by combat in the United States and England, and I've written about the Third Amendment and how it was invoked in litigation, scholarship, and the media in 2020. I have the most topics and articles in the queue in this category--with plans to write about the use of dreams in evidence, the historic and modern treatment of animals as villains by the law, and (perhaps) a discussion of historic litigation over church pews and how these frequent historic disputes are referenced in modern statutes.

The traditional value of the first two categories of my articles should be fairly apparent. Writing on legal issues related to my litigation work demonstrates that I know what I'm talking about, that I've taken these issues seriously, and is helpful for the firm, which can point to this article as evidence that its attorneys know their stuff when it comes to litigating relevant matters. The originalism scholarship is valuable from a traditional legal academic perspective--originalism is a subject of great debate and volumes have been written expounding various theories and tearing those theories down. Decent scholarship in this area is relevant to high profile cases and political issues, and can demonstrate an author's knowledge of constitutional law and legal theory.

But where is the value in writing about shooting fish, trial by combat, the Third Amendment, and other odd areas of the law? Why is this such a large portion of what I'm writing about?

To start, there's practical and professional value in writing about these issues. It isn't as easy to find the key cases and scholarship for quirky research topics as it is with more mainstream issues like originalism. Researching these issues to the degree necessary to provide a useful, thorough treatment hones my abilities and demonstrates that I, as a litigation associate, am ready to get into the weeds of all sorts of topics. Writing these articles also helps develop my writing skills as a litigator. It's not enough to research the nuances of weird topics, they also need to be presented in a clear and engaging manner to keep the audience's interest. As it turns out, the same is true of writing persuasive motions in litigation. In writing scholarship on legal oddities, I draw on the writing skills I've learned as a litigator and am able to further hone those skills.

There's also academic value in writing about seemingly trivial topics. While shooting fish with guns and demanding trial by combat may, at first glance, seem irrelevant to mainstream legal issues or practice, in-depth discussion of these subjects implicates a wide range of relationships and connections with modern law and important policy issues. Laws against shooting fish with guns have constitutional implications, they can be used to illustrate effective or ineffective methods of drafting statutes, and they have bearing on environmental research and considerations that give rise to these laws in the first place. The Third Amendment illustrates how arguments may be made regarding constitutional rights in a near-vacuum of scholarship and case law, and is frequently cited by courts as an example of the Constitution's respect for privacy, the home, and freedom from government interference in people's daily lives. Exploring the implications that obscure laws and topics have on the broader framework of law and policy reveals new ways of thinking about commonplace issues, new connections between seemingly disparate policy considerations, and gives the reader and writer a more thorough understanding of the legal system.

Ultimately, though, the main reason I write about these topics is because it's fun.

Writing as an associate at a firm, rather than as a fellow or professor, comes with some disadvantages. My job requires long hours, hard work, and--when busy--becomes nearly all-consuming. If I'm going to write legal scholarship, it needs to be in my spare time, and I need to find the motivation to write after practicing law every day. Writing about topics that interest and educate me is enjoyable in itself, and provides the motivation necessary to write, even if I've been churning away on motions, pleadings, or hearings for many hours that day. 

There are also advantages to writing as an associate. I don't need to pigeonhole my research interests into subjects that I think would are inherently of interest to a mainstream academic audience or tenure committee. I just need to make sure that my writing is well-researched and engaging. I also need to make sure that I'm not disclosing any work product or writing something that has negative implications for my clients and cases, but thus far I haven't had much of an issue with this when writing my quirky articles. Perhaps, some day, I'll have a client that wants to demand trial by combat, at which point my scholarship will come back to haunt me. Until then, I'll continue to enjoy writing what I want.

Academic legal writing as a fun undertaking isn't discussed much, but it isn't a completely novel concept. In Scholarship As Fun, Thomas Schultz advocates for the pursuit of fun in scholarship, noting that it is likely to prompt more varied, and--on the whole--better work than scholarship motivated by other considerations:

And when we seek fun, the fun of a joyful, life-affirming, mind and heart-changing, soullifting freer existence, we are likely to engage in creative productivity. We are led to roguish experimentation, to playing legal punk, to throwing inter-temporal surrealist parties of legal thought. And all of them help us see something. As Karl Popper, and others, have suggested, for instance through the idea of truthlikeness and verisimilitude, it is quite unlikely that any given account of mostly any phenomenon is perfect, in the sense that it captures all the elements of the phenomenon and predicts with flawless accuracy what the phenomenon is going to do in a given situation. And so competing coexisting accounts of the same phenomenon are welcome, even if they are mutually exclusive; they provide a richer overall understanding, even if from the relative perspective of each the other account must be wrong. The same idea can be applied to normative theories just as it is to descriptive ones, and to anything in between, to any particular resultant of the dialectic relationship that these two opposite poles entertain (there is always some normative aesthetic prefiguration in any description, as the discussion so far has implicitly argued, and there is always some descriptive preunderstanding in a normative statement).

Other legal scholars' work seems motivated by fun more than anything--Brian Frye is probably one of the most obvious examples.

I acknowledge that the pursuit of fun may be a limited option for those in the academy--especially junior scholars. The legal academic job market is intense, with ever-increasing expectations by hiring and tenure committees that applicants publish mainstream scholarship in prestigious law reviews. Those law reviews also tend to accept scholarship that will make them look good, focusing on popular, well-trodden subjects and favoring work by well known professors.

An aside: I was an articles editor for the UCLA Law Review years ago, and I remember a submission we received from a practicing attorney. I couldn't tell you today who the author was or what the article was about, but I still remember that the article was written in an extremely formal, stilted, hypertechnical manner to the point where it was virtually unreadable. I suspect that the author didn't normally write that way, but that he had tailored his presentation to what he expected an academic publisher wanted. In doing so, he fell into the trap of writing too much like his vision of an academic, and not enough like a normal person.

Law reviews have fallen into a similar trap--they're motivated to publish too much like what they envision law reviews to be. Law reviews consider (and often prioritize) a submission's likeliness of being cited, author prestige, and the popularity of subject matter when deciding to publish a particular article. There's pressure on them to do so--few topics of discussion are more popular among established professors than lamenting their own students' fitness as publishers of legal scholarship. As a result, most journals avoid "risky" scholarship, which in turn causes scholars motivated by the job hunt or tenure prospects to abstain from writing such scholarship. The machine that encourages the publication of mainstream, traditional, and often boring scholarship perpetuates itself.

How can law reviews and authors go about rediscovering the joy of writing legal scholarship for fun? On a narrow level, I think that established professors and authors who don't face the same risks and pressures of junior scholar should do more to promote the publication of nontraditional scholarship. Professors with tenure, for example, could write about less-popular, or downright odd, subjects to shed light on these areas of the law. Where these professors go, other writers and journals will likely follow. Prestigious professors should also cite to and engage with nontraditional scholarship and authors--for example, they should consider publishing and citing to online supplements, and citing authors who aren't tenure-track law professors. And while I know from experience that it's a tall order, authors who don't face the tenure and hiring pressures of academia--say, attorneys working for law firms, the government, and nonprofit organizations--should consider writing and publishing about the subjects they love most. In order for quirky scholarship to get published, it needs to be written. It's my dream to see more practitioners getting involved in the world of legal scholarship (rather than limiting themselves to short form legal newsletters and periodicals).

On a broad level, I think that people at all levels of the legal community need to reevaluate the value of quirky legal scholarship. Articles about offhand topics may, at first, seem irrelevant, but well-written and researched scholarship may offer valuable insights and angles for thinking about more mainstream subjects and fields. Legal reasoning is, to a large extent, an art of arguing from analogies, and the more subject matter that people consider and write about, the more resources there are to make these arguments. Finally, spending time on pursuing quirky subjects--which often stem from what authors are most interested in and excited about--will likely improve the lives of those who write and consume legal scholarship.

Schauer on "Unoriginal Textualism"

 Frederick Schauer recently posted an article, Unoriginal Textualism, on SSRN. Here is the abstract:

The burgeoning debates about constitutional interpretation show no signs of abating. With surprisingly few exceptions, however, those debates involve a contrast between textualism understood as some form of originalism, on the one hand, and various varieties of less textually focused living constitutionalism, on the other. In conflating textualism with originalism, however, the existing debates ignore the possibility of a non-originalist textualism – a textualism tethered not to original intent and not to original public meaning but, instead, to contemporary public meaning – public meaning now. This article explains the plausibility of just such an “unoriginal” textualism and argues that it might serve the guidance and constraint functions of a constitution better than any of the alternatives now on offer.

This approach to constitutional interpretation is very much in line with a "present public meaning" approach suggested at the end of an article that I coauthored with Al Hiland. That article focused on difficulties that originalists face in implementing their theories--focusing, in particular, on the inability of judges and attorneys to engage in the necessary historic research to determine the original public meaning of constitutional provisions. This is a significant problem for originalists, most of whom argue (in one way or another) that the Constitution should be interpreted based on its original public meaning.

After surveying and describing obstacles to determining original public meaning and arguing that reliance on legal academics was unlikely to be the solution that some originalists hope it to be, we propose the alternate theory that rather than being bound by the original public meaning of the Constitution and its amendments, that courts be bound by the present public meaning:

In the context of this Article’s criticism, the present public meaning approach seems appealing—it avoids the need for the complicated and goal-oriented method of studying the constitutional record and the undefined, unworkable method of immersion. It likely leads to much more thorough and representative corpus linguistics analysis, as the internet enables the construction of corpora that are magnitudes more extensive and representative than those available for founding era language. And it better prevents scholars, advocates, and courts from reaching politically motivated conclusions by modernizing the basis for interpretation— allowing the general public to check or speak out against mistakes, rather than letting courts hide behind a curtain of selective historic citations. As for concerns about linguistic drift, this can be minimized by reading the text of the Constitution as a whole with an eye to relevant context thereby avoiding absurd results that originalists flag.

I tend to refer to this approach as the "present public meaning" interpretive approach (I supposed I could also refer to it as "present public meaning textualism"). Schauer refers to this as "unoriginal textualism" or "non-original textualism." 

Schauer points out that the fact that the Constitution is written does not preclude expansive and flexible interpretations--noting that Chief Justice Marshall suggested as much in McCulloch v. Maryland. Rather than seeking to be bound by the past in interpreting the Constitution--say by original intent or original public meaning--Schauer suggests that the text still be treated as authoritative, but that its meaning be determined in light of the present meaning of the text. 

After amassing examples of how the Constitution is not written to speak only to judges, but also to members of the public, Congress, jurors, and others, Schauer writes:

An important feature of these and countless other examples is that often there is no Supreme Court decision dealing with the question, and there is often neither the time nor the resources for the constrained official to try to figure out what some word or phrase or sentence was publicly understood to mean in 1787, or 1791, or 1868. As a result, if it is important that the Constitution constrain officials, and if it is important that it do so even in the absence of litigation, then it follows that it is equally important that those whom the Constitution seeks to constrain be able to understand the Constitution directly. And although the Constitution’s for all practical purposes unremediable vaguenesses may make such an aspiration a fantasy for many of the document’s most consequential provisions, it does not do so for all of them. And for those words and phrases that do have relatively determinate meanings, the constraint function can be served only if we understand the Constitution to mean now what its language means now to its addressees. This is textualism, but it is not the textualism of meanings from a century and a half to more than two centuries ago. It is the textualism of the text now, and thus of the text’s meaning now. It is the textualism that tells Congress how to count the votes of the presidential electors without having to engage in extensive historical research, just as it is the textualism that does the same for the Senate in determining how to conduct an impeachment trial, for the prosecutor deciding whether to present evidence coming from a witness not present for trial, and for any official seeking to determine what the Constitution requires under circumstances in which no court has yet authoritatively adjudicated the issue.

The argument for contemporary meaning textualism, therefore, is the argument from guidance. The most obvious manifestation of that guidance function comes when the Constitution constrains even well-meaning officials from doing what they would otherwise be inclined to do on policy or political grounds, but the guidance function is not limited to constraining. As the examples of counting electoral votes and determining impeachment procedures illustrate, guidance is applicable even when constraint, in the sense of second-order constitutional constraints on first-order policy preferences, is not at issue. But whether constraining or just instructing, the Constitution, as with any other law, is likely to operate most efficiently and effectively when its addresses know what the law requires without the intervention of the courts. If we think that “Stop” signs work best when motorists stop simply because the sign tells them to, then we can imagine the same dynamic, at one or several removes, for the Constitution. And if we believe that, then we should accept the value of a constitution that can, in theory and even sometimes in practice, guide in much the same way as the “Stop” sign guides. And for this guidance to be effective, the guiding document must speak the same language as those it addresses. Contemporary meaning textualism is based on the idea that only if we understand the language of the Constitution as it means now can those who seek guidance now know what the Constitution requires of them. [footnotes omitted]

I'm inclined to agree, and I think it is correct to consider the Constitution in a broader perspective as being interpreted by people and institutions other than the Supreme Court. Not only does a present public meaning approach better guide these actors in interpreting the Constitution, but it allows these actors to better check the Supreme Court, which--if this interpretive method were adopted--would also need to interpret the Constitution and its amendments based on the present public meaning of their provisions. Members of the general public are more likely to be able to readily critique the Court should it depart from the present public meaning of the text. Under alternate approaches, such as original public meaning originalism, the Court may use selective or incomplete citation to historic sources (or to secondary sources providing their own accounts of historic meaning) to reach a desired outcome in a particular case. Parsing through this analysis may prove difficult for the general public--certainly more difficult than evaluating analysis based on the present public meaning of constitutional text.

I'll likely have more to say in the future in support of the present public meaning approach. It's something I've considered for a while, as some of my earliest thoughts and concerns with originalism arose from how the theory renders modernization of the Constitution's meaning impossible. The present public meaning approach also appears preferable from a democratic perspective, accounting for the views of those around today, including African-Americans and women who were unable to vote on or approve any constitutional provisions or Amendments until the passage of the 15th and 19th Amendments. 

These thoughts on this interpretive approach are in their early stages, but Schauer's article represents a significant step towards this method gaining further attention and support. I can only hope that work and other circumstances permit me the time to develop these ideas before next Spring.