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.

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Experiments with ScholarSift: An Interesting, But Opaque Platform

A few days ago, I wrote about Brian Frye's article in Techdirt where he discussed ScholarSift, a new platform for legal research. A broader discussion of that platform and my concerns with it are in my earlier post--in short, users can submit an article on ScholarSift (either a draft article of theirs, or a copy of a completed article), and the platform analyzes the text and citations to return "relevant" results. Notably, the platform highlights relevant results that are not included in the citations, which may help direct writers to authors and articles that they may have otherwise missed in their research.

I ended up getting credentials to try out the system and submitted a few articles--both draft articles and completed articles. It was an mixed experience. For the drafts that I submitted, I found a few articles that I had not tracked down in my research thus far. And for some of the articles I tried out, there was a nice diversity of results, although it was sometime difficult to sort through the long list of results that some of the articles generated. While the organization of results was sometime unclear and difficult to sift through, the ability to filter between journal articles, books, and cases was a welcome feature. The basis for the organization remained unclear though--with little more indication of why results were listed in a particular order beyond a vague "relevance" criterion that was measured in unknown degrees.

Some articles I tried out caused the system to turn out some odd, unhelpful results. I submitted one article, a draft paper surveying state self-defense laws and applying philosophical takes on freedom of belief to determine the ideal approach to this area of the law. The draft included a few pages that discussed the phenomena of self-defense in cases where the defendant was trapped in a cycle of domestic abuse and violence prior to killing their domestic partner and whether that history of abuse may factor into the defendant's mindset--a scenario that much of the literature describes as the "battered woman" defense. The "battered woman" phrase seemed to have a disproportionate impact on the results that were generated as nearly all of the articles and cases addressed this phenomenon, even though that discussion was only a small portion of the article itself. I suspect this may have been a result of the contents of the database of articles from which ScholarSift draws its results, or it may have been because the "battered woman" phrase was repeated several times in the text and citations (although the phrase "self-defense" was used even more frequently).

I also submitted my article, Shooting Fish, to see how the platform might respond to an article on an unconventional topic with a wide range of statutory citations. The results brought back a disproportionate number of articles about fishing rights and practices in the context of American Indian tribes. This was, admittedly, an area I did not address in the article. I made the decision not to explore tribal laws partly because I wanted to limit the scope of the article (for the same reason, I relegate my discussion of federal restrictions to under a page). I also am not as familiar with tribal law and was concerned that I would not be able to conduct systematic and thorough research of those laws. While I acknowledge that ScholarSift fulfilled its purpose of identifying an area of the literature that I did not address, it's overwhelming focus on that area of literature ended up crowding out other results that were related to laws and issues that I did address in the article. The platform did generate several relevant results (I was familiar with several of the articles it generated from research I'd done in related areas), but the disproportionate focus on literature related to American Indian laws, treaties, and rights made the results a bit more difficult to navigate. 

Other articles I submitted suggested that there's still a way to go with the database. I submitted a draft article I'm writing on trial by combat in American law--the results ended up being all over the map. While trial by combat is not a subject of common discussion in modern legal literature, it is addressed more frequently in history articles. While I occasionally got results for some papers from journals outside the legal field (some different articles I submitted resulted in citations to medical and psychological journal articles), historic literature on trial by combat was conspicuously absent from the results. 

Similarly, I submitted an article on pew rights and related legal disputes to stress-test the database's capabilities. The results ended up being as helpful as I could have expected. There was a lot of First Amendment literature in the results that did not really match up, but I was pleasantly surprised by the number of hits for articles discussing intra-church disputes and court treatment of canon law.

I also noticed that I kept having to sign out and log back in after every two or three article searches. This was not a substantial burden, but it made me feel judged.  Perhaps I was offending the system with the bizarre articles I was submitting.

From my experience so far, I stand by my the conclusions in my earlier post. I think that ScholarSift is a useful tool to have available for legal research and writing. At this stage, it certainly is not sufficient to serve as the only tool--after all, it is designed to analyzed near-complete drafts to determine what sources and citations are already missing, and authors need to be able to do the research to get to that stage of the draft. I still have qualms with how the platform works--the metrics behind the "relevancy" determinations remain entirely unclear, as do the contents of the database from which the platform draws. If ScholarSift's database continues to expand to older works and articles in non-legal fields, it will be a welcome addition to other research platforms that are currently available.

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Citations, Hierarchies, and Algorithms in Legal Scholarship

I read Brian Frye's Techdirt article, "It's the End of Citation As We Know It & I Feel Fine," where he makes the bold claim that the "worst thing about legal scholarship is the footnotes." In a field where article lengths are expanding to 100 pages and beyond, where costly submission software crowds out students and professionals who are outside of the academy, and where journals will publish anything--even ridiculous articles about shooting fish with guns, there is serious competition for the title of what aspect of legal scholarship is "the worst."

I won't deny that footnotes in legal scholarship can be a bit overwhelming for the uninitiated, and that some editors demand citations for everything under the sun. But I'm not sure that the footnote craze is as horrible as Frye makes it out to be. To start, I suspect that the focus on footnotes originates, at least in part, with the legal writing that many law students will go on to prepare in practice, in which arguments referencing cases and statutes require frequent citations to support the claims being made. To the extent that law review articles--particularly those with a more doctrinal focus like 50-state surveys of laws governing the shooting of fish with guns--include citations to case law or statutes, those footnotes should be encouraged to confirm that the legal claim being made has a basis in legal authority. 

Even when citations are to scholarly, rather than legal, authorities, frequent footnotes can be helpful. They maybe a resource for those doing research in the area to find related scholarship on particular issues. They can serve as a substitute for literature reviews, reducing the length of what may already be a too-long piece. Footnotes to scholarship may also provide a barometer as to the legitimacy of claims being made. Overreliance on single sources, or--God forbid--citations to one's own work may undermine claims that are presented as well-established. Finally, numerous, repetitive, and useless footnotes, (I'm thinking especially of introduction footnotes beginning with "See infra Section __"), should be dealt with by the author, who can refuse to include such footnotes in the initial draft and who can (and should) push back on editors who demand such useless additions.

Frye turns to a discussion of ScholarSift, a platform created by Rob Anderson and Trent Wenzel, that purports to analyze legal scholarship to "identify the most relevant articles." From what little I can find out about ScholarSift, people can upload an article (either a draft, completed, or already-published article) and the system locates "relevant" articles based on analysis of the article's text and citations. 

Frye suggests that ScholarSift could be used as a substitute for footnotes by finding sources that are similar or relevant to the text being analyzed. This does not seem feasible, as the software appears to be built around connecting authors to similar, or "relevant" sources based on the whole of a draft. It does not appear that the system is designed to connect one particular statement or proposition in an article to a source (or sources) that support that statement--instead, it generates a list of "related" articles (and, I think, cases, laws, and maybe books) that are "relevant" to the article as a whole. Replacing footnotes with this program would be similar to a law review article listing a bibliography at the end and telling the reader to look through all the sources to confirm whether the article's contents are accurate. As much work as sorting through footnotes may be, this approach sounds like much more of a burden.

(I admit that I do not have a ScholarSift account--which you apparently can only get by submitting a request by email. If my description of how the system's use of submissions to generate results is therefore incorrect, I welcome corrections.)

But Frye's discussion of ScholarSift raises some interesting notions about how it may assist in legal research help legal scholarship as a whole.  Frye writes:

It works really well. As far as I can tell, ScholarSift is kind of like Turnitin in reverse. It compares the text of a law review article to a huge database of law review articles and tells you which ones are similar. Unsurprisingly, it turns out that machine learning is really good at identifying relevant scholarship. And ScholarSift seems to do a better job at identifying relevant scholarship than pricey legacy platforms like Westlaw and Lexis.

 

One of the many cool things about ScholarSift is its potential to make legal scholarship more equitable. In legal scholarship, as everywhere, fame begets fame. All too often, fame means the usual suspects get all the attention, and it’s a struggle for marginalized scholars to get the attention they deserve. Unlike other kinds of machine learning programs, which seem almost designed to reinforce unfortunate prejudices, ScholarSift seems to do the opposite, highlighting authors who might otherwise be overlooked. That’s important and valuable. I think Anderson and Wenzel are on to something, and I agree that ScholarSift could improve citation practices in legal scholarship.

I'm a bit less optimistic than Frye about ScholarSift, largely because I cannot find any information on how it works, it is unclear what database of documents ScholarSift pulls from, and I am concerned that to the extent that it relies on a database of legal scholarship, the hierarchical problems that Frye identifies in his article may still be imported into results. 

Regarding the lack of information, ScholarSift's website contains virtually no information about how the system operates. I have not been able to locate additional written information on ScholarSift anywhere else--although my search for such information was admittedly a cursory one. I located, and listened to, this Ipse Dixit podcast interview of Rob Anderson who describes how ScholarSift works. But, as is the case with the website, the information is presented in largely conclusory terms--describing how the system will "look at" the text and citations of an article uploaded to it and analyze "relationships" between other articles to sift through a database of "a few hundred thousand articles" and list results in an order of what is most "closely-related." It remains unclear how "relevance" or "closely-related" determinations are made, although it appears that this is done through an analysis of the text, including commonly used words, phrases, and maybe combinations and/or proximities of words or phrases to one another.

The makeup of ScholarSift's database of articles and sources is also unclear. The contents of the database, how determinations are made on what to include, and the age of what is included are all mysterious. On the podcast, Anderson notes that scholars using the platform can upload their own drafts or articles to ensure that they are part of the database, but I expect this would only account for a small portion of what makes up the database. Without more information on the database, its contents, and how its contents are selected, it is impossible to conclude that ScholarSift can conduct exhaustive searches of potentially relevant material.

Finally, Frye and Anderson note that ScholarSift may help break down hierarchy problems in legal academia, where big names from prestigious institutions tend to be overcited, and where the body of scholarship consists largely of articles written by white, male authors. If the processes for locating "relevant" article truly focus on an article's text, perhaps the platform will have some impact. But I have my doubts. 

First, the platform is meant to analyze articles and their citations in locating relevant results (although this will supposedly change as the system develops). If citations are included as inputs, though, they will influence the searches, and authors' biases in selecting their own sources will likely be reflected in the results. 

Second, related to my concern about the database's contents, ScholarSift presumably draws from a body of scholarship in legal academia, in which white male authors are overrepresented (especially if historical writing is taken into account). Even if determinations of relevance are based on the text of submissions and articles in the database, this will still result in results skewing towards white males if they make up the bulk of what is included in the database. 

Third, Anderson notes that there will be features permitting searchers to filter results in various ways, including by high citation rates. This suggests that the system at least includes information on articles' citation rates, and this information may influence what results are deemed "relevant"--which may in turn continue to perpetuate hierarchies of overciting authors from the most prestigious institutions. This last concern is, admittedly, speculative, but without information on how the algorithm works, this concern shouldn't be dismissed. Additionally, as the program develops (and, especially, if it is used to generate a profit), there may be pressure to prioritize results that account for the "prestige" of an author or publications--which could defeat the very purpose of the platform.

If ScholarSift is truly text-focused (as Frye describes, "Turnitin in reverse"), it may have a positive impact on legal research and lead to increased diversity in citations. Hopefully that will be the case. And Anderson notes that ScholarSift may end up being an alternate mean for submitting articles to law reviews--an outcome I would be happy to see. I think it is still early days and that it is too soon to be overly optimistic. But ScholarSift may be worth watching and including as one of many tools used by authors of legal scholarship. 

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Did the Supreme Court Just Overrule Korematsu?

The Supreme Court upheld Trump's travel ban this morning.  From the Wall Street Journal:

The court, in a 5-4 opinion by Chief Justice John Roberts, said Tuesday that Mr. Trump didn’t violate the law last September when he put in place restrictions on U.S. entry by people from Iran, Libya, Somalia, Syria and Yemen, a measure he said was necessary to protect national security because those countries don’t provide sufficient information for U.S. officials to assess whether their nationals are a threat. It was his third version of the much-debated ban, earlier iterations of which had been struck down in various parts by the courts. 

Chief Justice Roberts wrote that U.S. immigration law clearly gives the president “broad discretion to suspend the entry of aliens into the United States.” He added, “The president lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest.”

I am too busy to look into the ruling in depth, and commentators will be dissecting it for days and weeks to come.

But I have seen debate on Twitter as to whether the Court overruled Korematsu v. United States -- a decision that affirmed the United States government's relocation of citizens of Japanese dissent to internment camps during World War II.  I have previously blogged about how Korematsu has been treated as precedent in subsequent cases.

Today's ruling included strong language regarding the case:

The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting).

Some commentators think that this means Korematsu no longer has precedential value and has been overruled:

OK, Westlaw. Time to hang a red flag on Korematsu. https://t.co/EfjaZxIRwt

— John Elwood (@johnpelwood) June 26, 2018

But others disagree:

Guys, Korematsu was not "overruled" today. Saying it "has been overruled in the court of history" is a clever way of making it sound like you've overruled it, but the question wasn't presented and no overruling actually occurred. Disavowed maybe, but not overruled. #SCOTUS

— Jason P. Steed (@5thCircAppeals) June 26, 2018

On the "court of history" issue, it's worth noting that the Court has only once referred to the "court of history" (distinct from "courts of history"). From New York Times Co. v. Sullivan:

Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional. See, e. g., Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H. R. Rep. No. 86, 26th Cong., 1st Sess. (1840). (emphasis added).

As the only prior use of this term was to distinguish an issue that the Court had never directly addressed, I see Jason Steed's point. But the Court also notes that the decision "has not place in law under the Constitution," which may be a strong way of stating that the case is overruled. Unfortunately, the Court's effort "to be clear," did not include the explicit statement that Korematsu was, in fact, overruled by the Supreme Court, and in light of the imprecise language (and Steed's further point that the Court also stated that Korematsu "has nothing to do with this case"), the debate over Korematsu's precedential status may continue.

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The Use of Colons in the Titles of Law Review Articles and Comments

I didn't have much to do yesterday evening, so I decided to test a theory that I have believed for years but never examined: that law review articles tend to avoid using colons, while most student-authored notes and comments use colons.

I have both written and reviewed articles for publication and I have read numerous law review articles and comments in the course of writing my own comments and articles. In doing so, I have seen many titles. From my general experience, it seems that the titles of professor and practitioner-written articles tend to avoid the use of colons, while student-authored work continues to embrace that punctuation mark.

With my free evening, I ignored all of the possible activities that the vibrant city of Los Angeles had to offer and set to work to explore the frequency of colon-use in law review titles. My plan was to look at the most recent issue of the top 16 law journals and law reviews I could find (as ranked by Washington & Lee) and to compare the colon vs. no colon ratio in professor/practitioner-authored articles with the colon vs. no colon ratio in the titles of student-authored notes and comments.

The bright idea of determining whether this had ever been done before did not cross my mind until I was well into my project. I did some searching and found this excellent 2006 article in the best law journal written by Joshua Deahl and Bernard Eskandari. Deahl and Eskandari analyze the titles of a volume of law review articles in ten journals every five years from 1948 through 2003. The authors selected five "elite" law journals and five "second-tier" law journals.

Here is Deahl and Eskandari's graph of colon use in law journal titles:

From their summary of findings comparing titular colon use between articles and notes in elite and second-tier journals:

Since we are most interested in the current state of legal scholarship, the trends over the past decade are especially informative. According to our statistics, the four plotted categories rank in the following order, from lowest to highest percentage of colonized titles: (1) articles in elite journals, (2) articles in second-tier journals, (3) notes in elite journals, and (4) notes in second-tier journals. We suspect most people would rank the expected quality of legal scholarship by category in this same order. This lends further support to the idea that the worse the piece of scholarship, the more likely it is to have a titular colon. Only the "elite articles" clearly stand apart in 2003, with approximately thirty to forty percent fewer articles with colonized titles than each of the other categories.

Even though Deahl and Eskandari's methodology is far more rigorous than my spur of the moment project, I decided that a current snapshot of the state of law review titles could serve as a useful comparison and update to Deahl and Eskandari's work (also, I had already written most of the table below and did not want my work to go to waste). I added the "second-tier" journals that Deahl and Eskandary had examined to my sample, although I replaced the Dickinson Law Review (which is no longer being published) with the Penn State Law Review and Denver University Law Review (Dickinson was ranked 112 at the time Deahl and Eskandari published their article, and Penn State and Denver are tied for 111). This gave me a sample size of the most recent issue of 22 journals.

Here are the numbers I found. For professor/practitioner-authored work, I included both articles and essays in my totals. As noted below, I did not include book reviews. Additionally, for the Harvard Law Review, I used the second most recent issue, because the current issue is a Supreme Court 2015 examination and the "In Memoriam:" article, the foreword, and the cases included did not fit cleanly into my article/comment framework. For each publication, I have linked to the page where I found the articles and comments. Take note, however, that some journals only allowed me to link to a "most current issue" page rather than a specific page for a specific issue, so several of these links will be out of date as time goes on.

Law Journal (by Washington & Lee Ranking)	Articles/Essays		Notes/Comments
	Colon	No Colon	Colon	No Colon
Stanford Law Review	0	7	0	0
Harvard Law Review (not counting book reviews)	0	1	1	2
University of Pennsylvania Law Review	2 (does not include the "Introduction:" article)	7	0	0
Columbia Law Review	1	2	1	1
Yale Law Journal	0	2	0	2
Georgetown Law Journal	0	4	2	0
UCLA Law Review	3	4	0	0
Michigan Law Review	0	2	1	0
Minnesota Law Review	2	3	1	0
California Law Review	3	1	2	0
Cornell Law Review	2	1	1	1
Virginia Law Review	0	3	0	0
Duke Law Journal	0	2	1	1
Texas Law Review	2	0	2	0
Iowa Law Review	3	4	2	0
New York University Law Review	1	2	3	2
Penn State Law Review (tied for 111, used instead of Dickinson)	2	2	2	0
Denver University Law Review (tied for 111, used instead of Dickinson)	2	3	0	0
Nebraska Law Review	3	2	2	0
UMKC Law Review	2	5	2	2
Arkansas Law Review	3	4	3	0
Montana Law Review	2	0	4	2
TOTAL (Elite/Second-Tier)	19/14	45/16	15/13	9/4

Here is the breakdown of the percentages of titles that include colons:

• Elite Articles: 30%
• Second-Tier Articles: 47%
• Elite Notes and Comments: 62.5%
• Second-Tier Notes and Comments: 76%

Some caveats that are hopefully already obvious to readers: these numbers are by no means exhaustive, as they are from only one issue of each journal. Additionally, because I am checking the most recent issues during the fall semester, several of the issues were "symposium" issues, which tended to have a higher ratio of articles to comments. Additionally, the low sample size of notes and comments makes the percentages listed above all the more unreliable. But in the end, this is a blog post and not an article, and I am more than willing to accept grants from anybody who would like me to bolster my methods.

With those unpleasant caveats out of the way, these results are largely consistent with Deahl and Eskandari's findings, with the exception of the Second-Tier Articles percentage. I notice in the Deahl and Eskandari graph, however, that colon use in second-tier articles fluctuated widely since 1990, and this trend downward could be a continuation of that volatility. Ultimately, this snapshot of data confirmed my hypothesis -- that professor and practitioner-written articles tend to avoid using colons while student-authored work trends towards use (indeed, overuse) of that punctuation.

I confess that I fall into the pattern listed above, as the titles of every paper I published as a student included titles. I plan to actively avoid using colons in the titles of my future work, and I urge others to do the same. While Deahl and Eskandari note that avoiding colons is not a guarantee of increased success, removing this punctuation mark generally makes titles less cumbersome.

READ MORE - The Use of Colons in the Titles of Law Review Articles and Comments

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Larsen and Devins on the "Amicus Machine"

Scotusblog has this post by Allison Orr Larsen and Neal Devins on the rising number of amicus briefs, and the heightened focus on obtaining briefs from Supreme Court practitioners to maximize a case's chances of being heard and a successful outcome. The post begins:

We are living in the age of the Supreme Court amicus. Last term, amici curiae, or “friends of the court,” filed 863 briefs at the court – an average of 13 per case argued – and the justices cited these briefs in 54 percent of the cases they decided. This is the new normal. Over the past six terms, as Anthony Franze and R. Reed Anderson have shown, approximately 800 amicus briefs were filed in 93-98 percent of all cases, with marquee end-of-June cases attracting briefs in the triple digits. That is over an 800-percent increase in submissions from the 1950s and a 95-percent increase from 1995. Although nobody can say for sure whether these briefs actually change case outcomes, it is clear that the justices are citing them regularly and that there are more and more “friendly” briefs from which to choose. The amicus growth spurt is significant and shows no sign of slowing down.

The post refers to Larsen and Devins' forthcoming article, The Amicus Machine, which can be downloaded here. Here is the abstract:

The Supreme Court receives a record-number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate message. The result is orchestrated and intentional – the product of what we call “the amicus machine.” 

This Article has two goals: (1) The first is to offer a new description of the origin of many Supreme Court amicus briefs, explaining how it is that the Justices and the advocates benefit from this choreographed amicus process. (2) Second, we make the perhaps surprising claim that the amicus machine is normatively desirable. Others have warned about the influence of the powerful lawyers of the Supreme Court bar generally. While acknowledging these risks, we argue that – when it comes to amicus briefs – the benefits of specialization outweigh the costs.

One area of amicus participation that may draw less attention is the filing of amicus briefs at the certiorari stage -- where the Supreme Court considers whether to take a case. The Supreme Court only grants certiorari to a small fraction of cases, and Larsen and Devins note that amicus participation at the certiorari stage may greatly increase the chances that the Supreme Court will hear the case.

As the abstract shows, Larsen and Devins ultimately argue that the trend toward amicus briefs is a good one. From the post:

In an era of infinite information and virtually limitless briefs, coordination efforts by Supreme Court experts are a controlling force on a potentially unruly system. At the end of the day, the amicus machine may be a virtue, and not a vice, of current Supreme Court practice.

The article elaborates that while businesses may have an advantage in obtaining amicus participation, particularly at the certiorari stage, there are several Supreme Court specialists who "regularly represent individual interests" who obtain amicus briefs at a rate similar to those lawyers who represent businesses.

Amicus participation in cases before the Supreme Court is a growing phenomenon, and is of critical importance at the certiorari stage. I hope that Larsen and Devins, or others with similar research interests expand the investigation of amicus participation to other jurisdictions, such as courts of appeal and state courts, to see if the trends observed in the Supreme Court remain consistent.

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Luther on Placing Your First Law Review Article

From TaxProf Blog, I learned of this essay by Robert Luther III on the art of submitting law review articles for publication. Here is the abstract:

Many law reviews are only open to the top 10% of the class or to students who excel in a writing competition. While a high percentage of law schools now have at least one journal in addition to the law review, the reality is that well over half of the students enrolled in law school today do not have the opportunity to serve as a law review or journal staff member. Without that experience, those students-turned-lawyers who wish to publish legal scholarship after graduation are left in the dark about where to begin the process. I was one of those individuals, but over the last eight years, I have regularly published legal scholarship. Recently, my former students and other young attorneys have started asking me for advice. This essay — directed at emerging scholars who seek to publish their scholarship shortly after entering the legal profession — is a compilation of the advice I have shared.

The essay is a quick read, and I recommend checking it out. Luther devotes a bit too much space to the simple issue of submitting a curriculum vitae and cover letter (it could be shortened to: submit both and expect that neither will be read, let alone subjected to letterhead analysis). Additionally, tip number five on requesting expedited review is presented as though authors need to write a letter or email for each request -- which is generally not the case, as the submission websites ExpressO and Scholastica make the process almost entirely automatic.

For those in a hurry, I suggest following the one simple rule of: buy Eugene Volokh's Academic Legal Writing and do everything he tells you. It worked for me.

As for tips that I would add to Luther's essay, here are a few that came to mind:

• If you are not currently in law school or a legal academic employed by a law school, start a savings account for the outrageous amount of money you will need to spend on submitting articles through Scholastica and ExpressO. ExpressO submissions are $3.10 each, and Scholastica costs $5.00 per submission. Authors hoping to cast a wide net (a description that probably applies to most people submitting for the first time) will find that these submission costs add up very fast.
• On a related note, to push back against Luther's advisement against publishing while still in law school, students should take note that most law schools will pay all submission fees through their institutional account. While many schools may be reluctant to publish scholarship by student authors, students with access to unlimited free submissions can sent articles to so many journals that they may be lucky enough to find the exception.
• While on the subject of student scholarship, students should consider submitting shorter pieces as essays or to online law review supplements. Those publications are more likely to be published without a "note" or "comment" label that Luther describes as a "scarlet letter" that frightens away those who would otherwise cite the article. You can find an excellent list of online law review supplements and their rankings here.
• Avoid using overly complicated technical legal terms and submit something that is fun, or at least easy, to read.
• Read and re-read Luther's ninth tip on coauthoring. It is very good advice that I don't see often enough in books or articles on this subject.

In short, students and practitioners should write, submit, and publish scholarship. Parts of the process can be tedious and time consuming, but it is ultimately a rewarding undertaking.

READ MORE - Luther on Placing Your First Law Review Article

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In Memoriam: Skye Donald

UCLA School of Law issued this press release earlier today which states in part:

UCLA Law faculty member Skye Donald, widely admired for her excellent teaching and extraordinary student mentorship, succumbed to cancer on Oct. 16. She was 43.

Donald joined UCLA School of Law in 2009, and was diagnosed with a brain tumor the following year. She nonetheless taught the Lawyering Skills course to hundreds of first-year students and assisted in upper-division clinical courses, and became an enormously successful and well- regarded teacher. In recognition of her excellence as an instructor, she was awarded a continuing appointment as a lecturer in law in 2015.

“Even in the midst of her very serious medical issues, Skye was extraordinarily focused on the well-being of those around her,” said UCLA Law Dean Jennifer L. Mnookin. “She worked very hard to understand and connect with her students, and she coupled high expectations with extraordinary empathy. We have lost a wonderful teacher, colleague and friend.”

Skye was my legal writing professor during my first year of law school. As my classmates and I attempted to manage our regular lecture coursework (including learning to glean rules and doctrine from cases and adapting to the Socratic method), we faced increasingly complex writing assignments that forced us to confront and adopt legal writing's terse analysis of facts and case law and the employment of cases as authority in legal arguments. For most of us, lecture courses were akin to learning to read in a different language and our legal writing course felt like learning to write in a different language.

Skye approached the task of teaching classes filled with stressed, confused, and stubborn students with an unceasingly positive demeanor. When finals and deadlines began to loom and tensions were high and tempers short, Skye defused the stormy atmosphere and renewed our confidence. She helped us see that with the right attitude and game plan, we could get through the seemingly endless piles of reading and work with which we were confronted. When I was confused about a grade or comment on an assignment, Skye took the time to talk me through my answer and her evaluation process and provided concrete guidance on how I could improve my work. Her cheerfulness cut through the darkest of days, and lifted the spirits of everybody in her presence.

My law school lecture courses gave me a doctrinal background that I have drawn on as an attorney. But without Skye's teaching, I would never have been able to employ my legal knowledge in motions, briefs, or blog posts. My legal writing abilities and my work as an attorney are both attributable to Skye and I will do my best to continue to employ and develop the skills she taught me. UCLA Law will not be the same without her.

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Value Judgments in the Bluebook

In the harrowing world of the legal publication process, law review editors use the arcane and intricate rules of the Bluebook to dissect, complicate, elaborate, and brighten up citations in an incomprehensible swirl of multi-colored track-changes notes. The time-pressured author will often defer to the editors' suggestions and click the "accept changes" button at an accelerating pace, hoping that a hasty tempo will bring a swift end to the confusing mire of references to various multi-decimaled rules.

But often these rules are open to interpretation. Indeed, a quick series of searches of value-laden terms, such as "significant," "relevant," and "particularly" lead to a number of rules that seem suspiciously subjective for such an intricate book of rules.

Consider Rule 5.2(c) regarding the proper conduct for quoting a source with a mistake:

Significant mistakes in the original should be followed by “[sic]” and otherwise left as they appear in the original:

• “This list of statutes are [sic] necessarily incomplete.”

(emphasis added here, and in the rest of these quotes). It appears that they will tell us what mistakes are "significant" in the 21st edition.

Rule 10.6.2 discusses parenthetical notations on quoted sources, and the extreme lengths to which one may go in flagging and exploring citations:

When a case cited as authority itself quotes or cites another case for that point, a “quoting” or “citing” parenthetical is appropriate per rule 1.5(b). Within the parenthetical, the same rules regarding typeface, pincites, and short forms apply to the quoted or cited authority as if it were the direct source:

• Zadvydas v. Davis, 533 U.S. 678, 719 (2001) (Kennedy, J., dissenting) (citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)).

Note, however, that only one level of recursion is required. Thus, if a case quotes a case, which itself quotes another case, only one level of “quoting” or “citing” parentheticals is necessary. An additional level of parenthetical information may be used if the information conveyed is particularly relevant.

This appears to be the same rule employed in the portion of Rule 10.4 which governs whether one should list a department or district of an intermediate state court:

Do not indicate the department or district in citing decisions of intermediate state courts unless that information is of particular relevance:

• Schiffman v. Corsi, 50 N.Y.S.2d 897 (Sup. Ct. 1944).

When the department or district is of particular relevance, that information should be indicated as follows:

• Schiffman v. Corsi, 50 N.Y.S.2d 897 (Sup. Ct. N.Y. Cnty. 1944).
• Lee v. Perez, 120 S.W.3d 463 (Tex. App. 14th 2003).

Vagueness and value judgments even dictate how the powers that be who author the Bluebook interact with the mere mortals in the legal world. From the message associated with the "Blue Tips" pages:

The editors provide authoritative guidance to reasonable questions on subjects covered by The Bluebook. The most useful answers are gathered here as Blue Tips, classified by subject. These tips are searchable and linked to theBluebook content they address. Send your questions to editor@legalbluebook.com. If our answer is useful to Bluebookers generally, it may be formulated into a new tip, below.

I was able to write this post after conducting a few searches over the course of 15 minutes or so (while also watching The Blacklist). Goodness only knows how many more value judgments the Bluebook contains, and how truly subjective the law review editing process really is.

READ MORE - Value Judgments in the Bluebook

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