Wednesday, December 06, 2006

Applying MoneyLaw principles to scholarly works

Law booksThis post is written mainly as an open-letter, above-the-line variant of a comment on Jeff Harrison's post, Reading Résumés.

I agree in principle with much of what Jeff says. When a veteran law professor's résumé leads with a description of the law school diploma he or she received two decades ago, the résumé sends a powerful and mostly negative signal. I peaked when I was 25 and have been coasting ever since. So does a résumé filled with committee appointments. I chair; therefore I am.

At the margin, though, I would quibble with the categorical segregation of symposium pieces from other law review articles. Like the traditional denigration of casebook authorship -- yes, Jeff, I know how you also downgrade casebook authorship -- the anti-symposium norm condenses an ancient heuristic based more on instincts and untested assumptions than on evidence. One of the great achievements in 20th century legal scholarship was a casebook: Hart and Wechsler on Federal Courts and the Federal System. And speaking of Herbert Wechsler, revulsion toward invited pieces would surely counsel a less prominent place on Wechsler's résumé for that piece he wrote upon the invitation of the Harvard Law Review, The Supreme Court, October Term 1958 -- Foreword: Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).

The traditional rules that still motivate some, perhaps many, of us to categorically denigrate symposium articles and casebooks are just that, traditional rules. They boil what we thought was longstanding wisdom into easily remembered rules of thumb. In due course, these rules assume a life of their own. In baseball, some of the corresponding rules were these: Fat men make lousy ballplayers. Raw speed matters a lot; draft high and pay a premium. Guys who hurl 95-mph fastballs in high school are destined for greatness. And in legal education, many of us have similarly come to believe equally debilitating myths. Only five, perhaps ten, schools are capable of training future law professors. "Making law review" separates future law professors from their classmates at age 25. A federal clerkship -- or a Ph.D. -- is vastly more valuable than a decade in practice. It's all pure, unfiltered hogwash.

This forum strives to destroy unexamined myths. Perhaps it is time to play MoneyLaw with the traditional rules against symposium pieces and casebooks. Those traditional rules had the virtue, one must suppose, of saving time to discover what even a casual glance would reveal. Yes, some authors cut corners on invited pieces, and casebooks sometimes represent little besides a collection of obvious cases. But there are exceptions. The only way to tell is to read.


Blogger Jeffrey Harrison said...

How many times must a myth be true before it graduates to being a "rule of thumb," generally true, or a decent indicator in a world in which information is not perfect?

I feel that Jim and A. Nonnie Mouse (it took me several readings to understand that my Italian grandmother was not commenting) are engaged in a bit of myth-making for the sake of myth-busting. Mouse reduces my "resume responses" to format only. In fact, it has to do with the difference between a straight-forward resume as opposed to a puffed up "say anything you can think of resume" Mouse says this may be a "new bias." True, but it is one that emphasizes honesty over hucksterism. As I said in the post, all other relevant information being equal, I'll avoid the huckster.

Jim takes issue with my bias against symposia pieces and casebooks and suggests that those biases are linked to myths. I think he is right in many ways and here, in particular, you should read the symposium work before judging. (I think this is the same as don't judge a book by it's cover.) But if you cannot read all of them and you are faced with several candidates it is difficult. So, what do we know about symposia. First, they are an attractive way -- from the point of view of editors -- to fill up a volume of a second or third tier review. Second, they are attractive to law professors because it means the article is accepted before it is written. Third, most of the time the contributors are selected on the basis of something they have already written somewhere else. In fact, many times the expectation is that he or she will say it again only in 15 pages instead of 100 or at least take a position already staked out somewhere else. This raises all kinds of red flags when the "game" at many schools is to fill up as many lines on the resume as possible even if it means repeating yourself. Although reading the piece is best, as every economist knows, sometimes you settle for second best and to say that having presumptions is the equivalent of relying on a myth strikes me as an overstatement.

And now to casebooks. (By the way I have written both symposium articles and casebooks for what it's worth.) Sure, there can be good casebooks but I disagree with Jim in two respects. The first goes to the logic of his argument. I am weary of describing a general statement as a myth and then myth-busting by identifying some examples. It reminds me of the comments on my post saying that LLMs in tax should not be publicly supported. The most frequent argument in opposition was something like, "I knew someone who worked for the government who had an LLM." It also reminds me of what I was told when I wrote my first law review article. Having been an economist I was stumped by the fact that law professors could just make assertions with no support. A well-meaning colleague advised me: "Just drop an e.g., footnote and list three cases and it become the truth."

The second disagreement goes again to the problem of imperfect information. Is it really a myth that, on balance, casebooks are not the best scholarship? Well, what do we know about them. First, they are not refereed. Second, their existence is market-driven more than anything else. As far as I know, no casebook has been selected by Aspen, West or whomever because it was great scholarship. And given the number of contracts casebooks that exist, it appears you can write one if you and two friends will adopt it (and agree to do the bogus "new edition" every three years). Third a casebook may require some insight and imagination but it also requires a great deal of time doing menial things. In effect, a casebook requires a huge administrative component that is not scholarship. Thus, again I make the point: Is it myth to think that as a general matter an equal amount of time spend on an original analytical article has a better chance of producing better scholarship .

Jim may not like generalizations but that does not a myth make. And everyone, everyday, relies on them not because they perpetuate the status quo (although that is also possible) but because they are often good predictors.

12/06/2006 5:16 PM  
Anonymous Anonymous said...

I agree with both of you. Substance should count. On the other hand, casebooks and symposium articles are the easiest ways to fatten up resumes. Thus, Harrison's position seems reasonable too.

What strikes me as odd is Chen's view that symposium articles and casebooks are under fire and denigrated. Not at my school! Casebooks are proudly displayed and pity the person who would suggest a symposium article is anything but gold. At least here, Harrison would be the one debunking the myth.

12/06/2006 8:38 PM  

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