I assigned the Greiner & Pattanayak paper (or, more accurately, an earlier iteration of the paper) in my Empirical Legal Studies Colloquium this semester at Cornell. Among the many issues that animated my students was the paper’s title, particularly its focal point: “What Difference Representation?”
My students noted the obvious–notwithstanding the title’s tilt, the authors make clear (indeed, painfully clear) their wish to dwell on the effects of an offer of representation rather than the efficacy of actually using legal representation. Moreover, the authors assert that “the effect of actual use of representation is the less interesting question” (emphasis added)(pp. 39-40) while investing considerable energy in explaining to readers “why offers are relevant” (e.g., pp. 10-12).
To be sure, the authors are correctly mindful of and sensitive to important data and research design limitations. As they note repeatedly, “the offer, not actual use of, representation was randomized” (e.g., p. 41). Although the ‘effect of actual use of representation’ question is, as the paper makes clear, “challenging to answer” (p. 41), it does not follow that it is also, therefore, a “less interesting question” (pp. 39-40).
Simply put, the paper does not persuade on this point. If anything, the degree to which the authors felt it necessary to explain why “offers are relevant” (and, by implication, interesting) erodes their argument. Moreover, if, as the authors claim, the use of representation is the less interesting question, then why make it the clear focal point of the paper’s title? While I am not insensitive to the need to “market” one’s scholarship and understand that titles can be pressed into such service (especially if one immediate target audience includes student law review editors), my sense is that this title for this paper contributes unnecessary drag.