Author: Charles Sullivan


Shepardizing the Academy

Having received the guest bogger’s dreaded “here’s your hat, what’s your hurry” from Dan Solove, I thought I’d sign off (and make way for my colleague Rachel Godsil who will undoubtedlly be far more re interesting than I), with a final entry on easing the plight of the scholar.

A perennial complaint of the legal scholar is the difficulty of keeping up with the literature. (Admittedly, the non-academic world, especially the part of it that moves heavy things, is not likely to be sympathetic to our travails, but we’re speaking within the club here).

One time-honored solution, of course, is to re-define one’s field into smaller and smaller fragments, thus excluding increasingly larger amounts of material from that about which one must know. This has its limitations, however. I don’t mean logical limitations because, like particle physics, any field can apparently be reduced to progressively smaller parts. The limits are mostly loss of credibility among colleagues and students when a supposed expert really doesn’t know much about the next quark over.

Anyhow, the problem, as I see it, that we don’t have a simple device to help us decide what’s worth reading. Our cousins in the bench and bar have such a mechanism for the tools of their trade –Shepards for Lexis and whatever West calls its imitation. But there’s no similar labor-saving device for scholarship. Thiink of how much easier our lives would be with some version of this for our articles:

shep61 (Small).jpg

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Are We Writing Only For Ourselves?

In 1992, Judge Harry Edwards wrote an article in Michigan, The Growing Disjuncture Between Legal Education and the Legal Profession, which was, as the title suggests, an effort to redirect legal scholarship from what Edwards perceived as a too-abstract and theoretical path towards work that would be of more immediate use to h judges and lawyers. I think it fair to say that, while legal scholarship, has since evolved in a variety of directions, one of them has not been more practical scholarship along the lines Judge Edwards urged.

His piece has been much discussed, but also essentially ignored as legal scholarship has moved futher in the direction Edwards decried (I’m speaking too broadly here, I know, since terrific doctrinal scholarship continues to be produced and an increasingly empirical literature might be the most “practical” of anything that appears in the law reviews). But the median journal article, so to speak, at least in the leading law reviews, is one it is hard to imagine a lawyer or court citing, and not much easier to imagine your average policy-maker even understanding.

But this is old news. As I start this academic year, iit occurred to me that not only is legal scholarship no longer written for judges and attorneys but we in the legal academy seem far less interested than in past years in even acquainting future judges, lawers, legislators, and policy makers with our scholarship. Casebooks are increasing ignoring the literature that is the stuff of academic discussions of the topic in question, and, when the scholarship is cited it is typically in tip-of-the-hat fashion.

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Digital Scholarly Integrity

I recently received a phone call from an attorney — a piece she had published some time ago had an embarrassing mistake in its title. Needless to say, she was looking for a new position at the time and was concerned that a prospective employer would see the title and send her application to the circular file. While I was less worried than she that due diligence by employers extended this far, I too would have stewed at such a mistake hanging over my head forever.

Not to worry. While the published version will continue to exist (and embarrass) in wherever inaccessible and unaccessed places it now resides, the digital versions in Lexis and Westlaw have been corrected.

It would be hard to quibble with the correction in question — truly a typographical error — and both Lexis and Westlaw required authorization from the journal in question. Neither responded just to the importuning of the author of the piece.

But it made me wonder about both the security of our digital scholarship and the scholarly ethics of making changes, at least more substantive changes than this.

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Pushing, or Perhaps Ripping, the Arbitration Envelope

The New Jersey Supreme Court has just issued an opinion on arbitration that, while perhaps sensible in result, seems to turn the usual paradigms upside down. Instead of deciding whether an arbitration clause was unconscionable and should be stricken (or at least whether the unconscionable parts should be severed), the Court decided (1) it didn’t know what the clause meant, (2) that question was for the arbitrator, but (3) that if the arbitrator decided certain ways, that would be unconscionable. The effect, of course, was to interpret the agreement it wasn’t interpreting, at least by ruling out certain interpretations.

Given the pervasiveness of arbitration in both consumer and employment contexts, this is an important decision. How it fits into more conventional notions of the relationship between courts and arbitrators is anyone’s guess, but I’ll hazard a few.

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Mel Gibson and the IAT

My corner of the academic cabbage patch is consumed these days with whether intent to discriminate includes “unconscious bias,” one of many terms for a phenomenon that is helpfully taxonomized by my colleague Mark Poirier in his article Using Stereotyping and Cognitive Bias Evidence to Prove Gender Discrimination: Is Cognitive Bias at Work a Dangerous Condition on Land?, 7 EMPLOYEE RTS. & EMP. POL’Y J. 459 (2003). Research in this area includes the Implicit Association Test, which you can take from the comfort of your computer to determine your implicit attitudes towards a wide variety of traditional discrimination subjects (race, sex, sexual orientation), and some not so traditional (Presidents). Needless to say, there is a great controversy as to whether this test measures what it purports to measure, and, if so, whether such attitudes are likely to affect conduct in real world situations, and, if so, whether the law can or should do anything about it. Amy Wax savaged the IAT in a co-authored commentary in the Wall Street Journal last December.

Now along comes Mel Gibson and pushes the issue into the limelight. Sort of….

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More on Ranking Law Reviews

The Sullivan Scale

I’m a big fan of data mining (not the NSA variety, but the kind you do when you’re cleaning up your office), and there, nestled next to an article on rankings that I had lied to myself about responding to some day, was a pile of rejection letters from my Spring submission. As I was throwing them away, I noticed that several tried to ease the pain of rejection by informing me that I was just one of many who were also not quite good enough (many of these letters also solicited me to try again, as they had done the last 19 times).

Eureka, I thought, the perfect ranking system: ranking law reviews by number of submissions. One clear advantage of this method is that it does not necessarily reproduce the current hierarchies that dominate the other rankings.

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Ranking Law Reviews as the August Window Opens

It’s not so clear whether the recent spate of scholarship on ranking law reviews is a reaction to an emerging phenomenon or oblivious to it. Rankings of law reviews long predate the recent efforts and, indeed, long predate the US News & World Report ranking of law schools. However, judging from my younger colleagues, US News is a perfect proxy for law review ranks. (To that extent, I take an even stronger position than Professor Alfred Brophy’s recent posting on SSRN, which, after engaging in considerably more empirical research than I, finds a .86 correlation between citations to a school’s main review and USNews peer review ranking).

In short, I believe that, when engaged in window shopping during the Spring and summer submission seasons., both the submission strategy and the expedite strategy are pretty much dictated by where a particular review’s law school falls on the US News scale. There is almost no concern with whether a review is better (or worse) than its home law school, nor any effort to consult studies such as Professor Brophy’s.

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