Monday, March 30, 2009

The Merits of Student Scholarship

Having just finished writing my student comment, I have had a lot of free time to ponder what’s next for my article—the product of five months of sustained effort. If it’s selected for publication, great…but it might not be, and I realize (and accept) that.

I ran a Google search on what students who have their work turned away do, and came across this link. The blog discussion is nearly three years old, but the points made are increasingly relevant and—surprisingly—not as frequently discussed as one would expect.

The question, as Professor Desai puts it, is whether student-written scholarship should “R.I.P. or Survive on SSRN.” Noting that rejected student pieces are rarely accepted for publication in other journals, Professor Desai explains that students can nevertheless post their rejected articles on SSRN—a scholarly research network which allows authors to upload their work for the public’s unfettered access. Of course, as he sees it, the arguments on whether students should (be able to?) do so cut both ways:
On one hand, the amount of information (some good and some perhaps not so good) would increase but I could see arguments about too much noise or information overload being raised. Then again, one already has to wade through volumes of information using search strings and the like so perhaps adding more narrow but hopefully well done pieces to that pool will allow scholars to focus on large implications of their research and use the increased access to notes as a way to more efficiently see what work has been done on a particular topic that is a footnote or small part of the scholar's work
I think Professor Desai makes some good points, and I can appreciate that there are information overload concerns associated with opening the "floodgates" to student comments on scholarly databases such as SSRN. On the other hand, such arguments seem to presuppose that student work—at least that of the “not so good” variety—contributes nothing to the discourse. I have several reactions to this.

First, I think even bad scholarship (whatever that means) could contribute something to legal academia. Even if it is only the research put forth by the authors that could be expanded upon, and improved.

Second, it seems that the same argument could also be made with respect to published pieces written by students and academics alike. Students, after all, are the ones who choose legal academia’s direction by determining what to publish as Journal editors, and there are 918 journals to publish in along with a corresponding pressure to publish…surely not every published work is a masterpiece. I’ve heard rumblings of a push for peer review, but any such movement is—for now, anyway—an unrealized ideal.

Finally, in light of my second point, I have to wonder why professors would not want to see what the next generation of lawyers is writing about. Given that we make the publication decisions on their work, shouldn’t they want to see what we care about? What inspires us? Moreover, couldn’t reading our scholarship forge a better classroom environment since professors would be attuned to our interests?

I hate to generalize, but far more of my professors than I would like have seemed very detached from their pupils, and utterly opposed to learning from us; this is unfortunate. Academic discourse, like the Socratic method, works best when there’s a two-way dialogue—that is, when the “floodgates” are open. Why is there such resistance?


  1. There shouldn't be. I posted my article on SSRN, but--thankfully--it was accepted for publication. Professors just have a general problem of thinking that they are brighter than everyone.

  2. Students should not post on SSRN. They are not "social scientists", but are instead students. Thus, it is not their proper role

  3. If that's true, lawyers aren't really social scientists either

  4. I'm not aware of anyone opposing putting student pieces on SSRN. I don't have a problem with it, and I don't really see why anyone else would. Further, I don't read Professor Desai's post as opposing the practice, either. Maybe I'm missing something, but I read it as just asking the question and not really answering it.

    In short, I think the answer, "Why is such resistance" is that there isn't such resistance.

    A final thought: I tend to find arguments about what "the next generation" of lawyers is thinking to be pretty empty. The legal field tends to be pretty unoriginal: The new generation is almost always thinking exactly what the generation before it is thinking.

  5. Prof. Kerr,

    Thanks for chiming in--we appreciate it! I agree that Professor Desai is not opposing the practice. In fact, I believe he goes so far as to say that he's not saying students should not post on SSRN later in his posting. But I have heard the argument made, and the fact that the question is posed in the manner it is--with corresponding pros and cons--implies (to me anyway) that it's not so necessarily the case that everyone's "okay" with it.

    With respect to the point about resistance, I was speaking in broader strokes, and referring to classroom demeanor, use of the Socratic method, etc.

    I think you make a good point about how empty the "next generation" argument may be, but I'm personally inclined to feel that my legal views are considerably different than those my professors espouse. Maybe I'm wrong...

  6. I agree that there is resistance. My professors never act like there's anything they can learn from students.

  7. The biggest critique of what professors think is "who cares?" SSRN is an open network for scholarship, not just for professors' scholarship.

  8. @ 4:51--

    To the extent that anyone has a problem with students using SSRN at all (see Prof. Kerr's point on this above), I'd tend to agree with you.

    On a broader level, though, I think it's important to look past the SSRN issue and question what role--if any--student scholarship (published and otherwise) should play in legal academia? I believe our writing has a lot to offer for the reasons I've already mentioned, but am curious to hear other views.

  9. I think it's unlikely that anyone has a problem with student posting on SSRN since SSRN's business model is clearly to allow "open-source" research. While Garbage-In-Garbage-Out is a problem on the Internets, that may have more to do with how people read on the Internet (not caring as much about authority) then the fact that there are few gatekeepers on the Internet.

    Even without SSRN, an unpublishable student can start a blog and begin posting their ideas. With the right social network, one can even get a surprisingly robust conversation going.

    Clearly, in ranking authoritativeness, peer-reviewed will trump student-reviewed will trump SSRN will trump random blog.

    In terms of the unoriginality of law students, I wonder if Professor Kerr has thoughts about a) why they're so unoriginal, and b) whether or not it's a bad thing.

    Are young lawyers unoriginal because grand theories of law has been largerly solved (or at least mapped), what with the interpenetration it has experience with other disciplines such as economics and the dialectical effect of an intense battle between left-leaning and right-leaning lawyers during the past three decades?

    Or are they unoriginal because that is just what happens when you're young and haven't done the reading, like me at nineteen trying write like Kerouac.

    I do imagine that most lay Americans not party to any particular controversy are not necessarily dismayed at a lack of "creative lawyering," i.e., the Myspace Cyberbullying Case that Professor Keer has worked on, and the 9/11 Torture Memos.

  10. Craig-

    I think the question you pose re: the role of student scholarship is an interesting one. In my opinion, one of the main critiques of student scholarship, and perhaps one of the reasons for its low value in legal academia, is that it tends to be overly theoretical and ultimately impractical.

    I'll be the first to say that although my note is theoretically appealing, I don't fully believe that my proposal is legally practical. Of course, this may be an inherent aspect of legal academia itself, and not necessarily confined to student scholarship. Still, I do think it's especially prevalent in student work. I mean, what do you expect from students with only two years of legal education under their belts and little, if any, real world experience? As Josh, above, comments, law students (like myself) are young and haven't done the reading.

  11. @ Josh--

    I'd also be curious to hear some other thoughts as to why the academic thoughts (and contributions) of law students tend to be unoriginal.

    @ Joshua--

    I think this is an aspect of legal academia's not a bad thing, it's just the way it works. Some articles are more practical than others, but by in large they're typical academic pieces which, as a general matter, are largely theoretical.

    Good point on the lack of real world experience and knowledge, but how much does this really matter in terms of crafting innovative arguments that are targeted towards a particular legal question? Quite honestly, I'm not sure.

    But I hardly think it's divisive that student comments/notes are considered less relevant, worthwhile than scholarship authored by professors and practitioners. To be fair, I'm partially basing this conclusion on the fact that several faculty members have instructed me not to cite student notes because they're not persuasive...but I have seen some law review articles do ignore this advice.

  12. Professors don't care what students have to say, because they add little of substance with their work. Every student note I've read has been simplistic, and failed to offer the kind of insights needed to truly understand the topic (I read journal articles to prepare myself on an area of law I'm not aware of when I have an assignment). It's even worse int he classroom. When I was in law school, people came to class straight unprepared and sounded foolish getting caleld on.

    Judging by the student notes I've read, I don't think the problem's just 'not doing the reading', tho.

  13. I disagree 10:15. Student notes have been cited by SCOTUS before. They can be signficant

  14. I guess the Iowa decision says it all, huh.


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