Legal Scholarship for 100k

Given the high cost, one may well question whether the price is justified by the output. Personally, I appreciate legal scholarship for its own sake. Most people seem to have different expectations. Professor Neumann at Hofstra University School of Law, for example, seems to assess legal scholarship's worth by reference to citations:

Neumann also pointed to research suggesting that 43% of law review articles are never cited by anyone. "At least a third of these things have no value," he said. "Who is paying for that? Students who will graduate with six figures of debt."

While counting citations strikes me as an imperfect measure of "value," there can be little doubt that legal scholarship is failing to the extent its goal is to effectuate change in the law.

Ranking Law Reviews in Terms of General Social Science Impact

Mikhail Koulikov recently wrote an article examining the academic impact of legal scholarship in disciplines other than law. Specifically, he explores the level of coverage that selected law reviews received in eight general academic databases. His methodology is explained:

Because nonlegal academics do not generally use legal databases, I developed a study to see whether nonlegal scholars have access to legal journal articles, and thus legal scholarship, through databases they might commonly use. Any in-depth analysis of the coverage of law reviews by major nonlegal academic databases necessarily must be limited to a sample of law reviews, and a selected number of databases. I decided to use the three major general databases that Blessinger and Olle evaluated as a starting point. Expanding on their work, and taking the generally accepted view that law is a social science, my study also examined coverage of law reviews in several other databases that are key to study of the social sciences: JSTOR, PAIS International, Periodicals Archive Online, Worldwide Political Science Abstracts, and the International Bibliography of the Social Sciences. All of these are commonly available databases that should be familiar to most academic researchers, and all five claim to include coverage of law as a discipline.

He limited the scope of his study to the top 20 law reviews in terms of impact factor (per the Journal Citation Reports) and included--for good measure--the general law reviews of the top twenty schools according the U.S. News and World Report Rankings. The following are the first ten law reviews in his ranking in terms of general academic scholarship impact (with impact factor as the number in brackets):

(1) Harvard Law Review
(2) Columbia Law Review
(3) UCLA Law Review
(4) Texas Law Review
(5) Yale Law Journal
(6) University of Pennsylvania Law Review
(7) California Law Review
(8) Cornell Law Review
(9) Stanford Law Review
(10) Virginia Law Review

This study provides a good illustration of how legal scholarship is used to inform development of other social sciences. I recommend reading Mr. Koulikov's full article.

Entering the Academy -- An Update

As a follow-up to Robin's article on entering academia, we received some helpful insight from Dr. Brian Leiter, the John P. Wilson Professor of Law and Chair of the Law Teaching: Placement of Graduates Committee at the University of Chicago Law School. Dr. Leiter pointed us in the direction of a helpful guide he prepared for prospective academics at this website. The guide is extremely informative, and we strongly recommend taking a look at it if you are at all interested in becoming a law professor.

Cheers!

Is it "Wrong" for Judges to Follow Precedent? (Revisited)

About a month ago, I shared Goutam Jois' interesting article, Stare Decisis is Cognitive Error, with our readers. Some of our commenters took issue with the practical significance of Goutam's piece, and--given the interesting nature of the discussion--I wanted to share his response with our readers:

Sorry for the delay in responding. The article -- which is still in draft and will be published this fall -- could perhaps be clearer about what judges should do "instead" of following precedent. But the answer is not as elusive as it seems. Circuit courts, for example, routinely see cases of first impression, over 100 a year by my quick estimate (Westlaw: ("first impression" /s "this court" "this circuit" & da(2008)) yields 127 results) The standard tools of judicial decision-making that come up there would apply.

More broadly, as I write in the article, the point is not that judges should never follow prior decisions. It is, however, that we should be critical when they do. I outline three ways this might be done in Part IV.C. Whichever option one finds most persuasive, the point is that (if you buy my basic point about cognitive bias) there should be some degree of shift in the presumption that prior decisions must in all cases control subsequent cases.

Generally, we test whether a case is sound by examining its legal reasoning. But if, as I argue, the process of reasoning is itself skewed, then we need to be sure that we are following those prior cases for the right reasons, and not just because doing so saves "the intolerable labor of thought."

I have to say, Goutam's defense of his piece is quite persuasive. First, academic articles are not--nor need they be--purely pragmatic. And the skeptical "solution" he prescribes makes a lot of sense in light of his findings. I'm curious to hear what others think.

Is it "Wrong" for Judges to Follow Precedent?

Psychologically speaking, it may well be--at least according to Goutam Jois. While perusing SSRN the other day, I came across his provocative article titled "Stare Decisis is Cognitive Error." It's an excellent piece forthcoming in the Brooklyn Law Review, and I encourage everyone to check out. Drawing on the social sciences (psychology, in particular), the article convincingly urges that "psychological phenomena . . . undercut arguments for stare decisis." As the Abstract notes:

For hundreds of years, the practice of stare decisis - a court's adherence to prior decisions in similar cases - has guided the common law. However, recent behavioral evidence suggests that stare decisis, far from enacting society's true preferences with regard to law and policy, may reflect - and exacerbate - our cognitive biases.

The data show that humans are subconsciously primed (among other things) to prefer the status quo, to overvalue existing defaults, to follow others' decisions, and to stick to the well-worn path. We have strong motives to justify existing legal, political, and social systems; to come up with simple explanations for observed phenomena; and to construct coherent narratives for the world around us. Taken together, these and other characteristics suggest that we value precedent not because it is desirable but merely because it exists. Three case studies - analyzing federal district court cases, U.S. Supreme Court cases, and development of American policy on torture - suggest that the theory of stare decisis as a heuristic has substantial explanatory power. In its strongest form, this hypothesis challenges the foundation of common law systems.

Check out the article here.