I went to law school with academic aspirations, thinking that I might pursue law and economics. But Arthur Leff had other ideas. In Unconscionability and the Code — The Emperor’s New Clause [hereinafter the Emperor], Leff revealed the law review article as a form of scholarly and literary expression. Then, in Some Realism About Nominalism, his devastating review of then-Professor Richard A. Posner’s book Economic Analysis of Law, Leff explored the system of values implicit in the economist’s utility-maximizing model of behavior. Along the way, Leff offered the parable of the widow and her orphaned children, thrown out of their home into a blizzard by a judge who finds that she defaulted on her mortgage. How awful, you say. Not so, responds Leff’s economist. Without swift justice, widows would have little incentive to save money for their mortgage payments, the value of their homes would decline, and they would lose the ability to gain access to capital markets. Leff’s economist asks, “What do you mean, ‘awful’? What have you got against widows and orphans?”
Encouraged by my chance encounter with Leff to look for an alternative to law and economics, I came much the same adventitious way upon the law of federal jurisdiction. Or, as the art critic Dave Hickey describes the human desire to impress ourselves upon the world, my own little flower to water.1 Reading Hickey’s collection of criticism in the book Air Guitar reveals parallels between the work of legal scholars and other writers and artists. For Hickey, many hands shape the art world: those doing the art, those buying and selling the art, those criticizing the art, and those dishing out grants and acclaim through institutions like the university and the foundation. There’s no such thing as pure or selfless art; it’s a mad scramble for attention, recognition, fame, and lucre.2 In the scramble, some artists emerge, and their work increases in value; others confront failure. Hickey sees failure (“certifiable, undeniable, disastrous failure”) as the “primary benison of mercantile civilization.”3 It tells the artist to find a new line of work or a new approach to the current line.4
Hickey’s account of the merchandising of art put me in mind of the market for legal scholarship. How do we measure greatness in legal scholarship and in a law review article, and how do we signal failure?
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Start with the faculty hiring and promotion system. Some folks don’t get a job offer; some don’t get tenure. Instead, they receive one of Hickey’s certificates of failure and an invitation to pursue another line of work. But while the tenure and promotion system can occasionally signal failure, it does not contribute much to the identification of greatness. Law faculties are famously generous; an initial hiring decision almost invariably culminates in a grant of tenure. Promotion committees select the friendly and well-disposed to review teaching and scholarship, with the result that tenure often means unobjectionable rather than transformative.
As in Hickey’s art world, institutional players help decide what counts as good or great in the world of legal scholarship. While legal scholars don’t face critics very often, they do confront something similar when they ask the student-edited law reviews to consider their work for publication. Much the way artists complain about their critics, legal scholars bitterly resent the assessments they receive from the students who decide what work will appear in the pages of the most prestigious journals. One colleague asks why children make decisions about publication that can make or break the careers of the authors. Another wonders why the Yale Law Journal’s editors ask her to help them assess others who work in her field but steadfastly refuse to publish her work. Yet another objects to the way law journals impose short fuses on expedited reviews to limit opportunities for more broadly marketing one’s article. Many complain about the editorial wrestling match that occurs after a paper has been accepted — some variant of the complaint about children up above.5
Some criticisms of the law review model of legal publishing hit home. Law review writing can deaden the writer, the editor, and the reader. Writers feel obliged to submit work within the framework of the standard law review article — much the way ice skaters once completed their compulsory figures. That means footnotes, and roadmaps, and extravagant claims of novelty — the latter often deployed in the version of the article submitted in the selection process and then strategically removed before publication to avoid professional embarrassment. That means elaborate editorial engagement with questions both important (what does the case really hold?) and trivial (should this comma be italicized?). In policing such matters of form, even the most brilliant student editors may lose their focus on improving and clarifying the legal argument. Writers and editors alike come away from the process wondering if it was worth the energy expended. Depending on their level of expertise, readers either bog down in the details or skip around adroitly to view the high points (the free skate, as it were) without slogging through the compulsories.
Yet Hickey, who died in 2021, would likely have seen messy value in the law review article selection process. It’s relatively impersonal; few legal scholars have the sort of reputations or connections that can give them a leg up in the selection process. True, the process may still favor the well-established; journals at top schools have been known to extend a home court advantage to their own faculty members and a form of letterhead bias may, despite mitigation efforts, benefit authors from the fancy schools. Still, in entering that market, legal scholars don’t have to play the art world game. They needn’t kowtow to their reviewers and critics, schmooze them in the art gallery over wine and cheese, foster relationships with institutional titans to gain acceptance, or cozy up to corporate patrons to secure financial support. Instead, legal scholars can just write their best work possible and fire it off in the hope that it finds a sympathetic reader or two and lands a spot in a journal. With so many law journals, virtually anyone with a law degree and a measure of persistence can secure an offer of publication for their work.6
Authors of legal scholarship seek these offers by participating in the February submission cycle. (Artists tell me that the juried art exhibition bears some resemblance to the February cycle with its madcap, pell-mell, mass submission format and its unexplained rejections.) Certainly Hickey may have been amused by the sheer firehose quality of the February cycle and by its central feature, expedited review.7 Hickey writes about the way art prices move up and down in response to a thousand seemingly unrelated decisions in an atomistic (mercantile) system of exchange. Someone buys a piece and that pushes the price up, making it more expensive for everyone to buy a piece from that artist down the road. Someone else comments negatively on the work and the price tanks. Like artists, legal scholars secure an offer of publication and use that offer to bid up the “value” or “price” of their article by seeking expedited review from other, more highly ranked or prestigious journals. Eventually the market clears and a scholar accepts a publication offer that places an initial and highly contingent value on the piece. It’s far from perfect, but the expedited review system of filtration does create opportunities for genuine, if hurried, engagement with the quality of work — its novelty, its authenticity, its clarity, its contribution to the storehouse of legal knowledge. Legal scholars may believe that a student reader may not be learned or well-read enough to appreciate the deep truths and novel insights in their articles. But legal scholars send their work to as many as fifty or one hundred journals at a time. With enough readers at enough journals, someone will surely come to see its deep truths and novel insights, if such the article contains. After all, journal editors must fill their pages.
Established scholars can shrug off the February cycle and do without what they may have come to experience as ill-informed rejection. Having secured tenure, they can write for symposia in their field or complete book projects on a less hectic schedule. Junior scholars, by contrast, must take the cycle very seriously indeed, believing with some cause that placement of an article in a top journal will pave the way to, if not fame and fortune, then surely to tenure and promotion and perhaps to a lateral offer. For these vulnerable scholars, the dysfunctional quality of the February cycle can be truly maddening — arbitrary, hurried, grueling, enervating, and potentially career-threatening. It’s something like a tournament played by a set of constantly evolving rules and it wears out the authors and the editorial boards that must sift through thousands of submissions in search of perhaps fifteen pieces to fill their journal. Mistakes inevitably occur.
Even after the rough and tumble of article selection, the process of institutional intermediation continues. Authors load their articles onto SSRN, the electronic platform that pre-publishes much legal (and other) scholarship before its formal appearance in the pages of a law journal. There, the article picks up hits of various kinds: abstract views, downloads, and buzz. Social media also generate buzz; somebody posts about a particular piece and drives traffic to the SSRN site where it abides. Various scholars maintain blogs and websites that tout the most interesting of the new papers in their field as a kind of service to the legal profession and their own bottom line. Of course, one can imagine that old-boy networks inform these more personal forms of intermediation much the way networks inform gallery decisions and art reviews. Doubtless true, to some extent. But the folks running curatorial blogs typically maintain a high level of professionalism.
Many legal scholars lament the fact that peer review occurs informally in the process of article selection and initial evaluation, rather than through the more formal model of pre-acceptance peer review that occurs in the hard sciences and most of the social sciences. A fair criticism, given that law journals seek out peer review, if at all, more impressionistically. Perhaps the journal’s editors can turn to a panel of faculty members to vet a few pieces; perhaps they can send the piece out for a quick looksee by scholars in the field; perhaps they have student editors with a deep background in statistics or philosophy to whom they can turn for help with a complex data set or a paper on Wittgenstein; or perhaps they just do the best they can under conditions of uncertainty. We all know about situations in which the selection process failed. But hey, Hickey might say, some mediocre artists receive unwarranted attention, and some geniuses languish for a time in obscurity.
In any case, peer review has its downsides, at least as it operates in some disciplines. For starters, delay. When you throw an article into the February law review submission whirlwind, you’ll likely have an answer by the end of March. When you ease an article into the peer review process, you must generally await the journal’s decision and refrain from seeking an offer elsewhere. That can generate months of delay, even aside from the dreaded revise and resubmit.8 And what about the vaunted double blind review model and the way it supposedly ensures a wholly anonymous and objective assessment? Not necessarily so in the social sciences, where papers appear in draft on the internet, and where authors develop distinctive voices and areas of inquiry. Not so in some hard sciences, say my friends in those fields; you can often tell by the nature of the work which lab produced the findings.
On balance, then, one might defend the current system as one that offers the comforts of peer review for those who choose to seek out such journals and the promise of expeditious publication for those who prefer the law review selection model. Authorial choice between these models of publication may help to steer scholarly work to the journals best suited to its evaluation and publication. Empiricists and others conducting positive work in the social sciences adjacent to the law might naturally gravitate toward a peer-reviewed journal. Normative legal scholarship, by contrast, may have a relatively short shelf life and may require the relatively prompt publication that law reviews offer. It may also be the sort of work that student editors can more readily assess, at least when compared to some complex positive work that uses statistical methods to interrogate large data sets (although student facility with such methods improves every year).9
One more thing.10 The law review publication process encourages scholars to pitch their work to generalist law students, rather than to specialists in the field. Such an incentive structure tends to make the work accessible to a general audience of well-informed readers. In a democracy, arguments about law belong in the public sphere, rather than in a peer-reviewed journal read only by a small group of highly trained specialists. Perhaps, then, the law review publication process encourages a form of discourse that serves the public interest. The Baude-Paulsen paper on the Fourteenth Amendment’s disqualification of insurrectionist presidents has notched over 100,000 SSRN downloads.
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With or without the modest forms of peer review that have come to inform selection at the more prestigious journals, the process of article acceptance and publication initiates an iterative evaluation of quality or, as Hickey says of the art world, “an ongoing referendum on how things should look and how we should look at things.” It’s a complex process, with many individual actors participating in assessments of the work. After publication, the article just abides in both print and electronic forms, yearning to attract some attention. In the old days of print, authors would dutifully mail out copies or reprints of their articles to others in the field — saying, in effect, “Look at me, I’m alive and watering my own little flower.” Today, it can feel positively quaint to receive a hard copy reprint in the mail, and quite charming as a result. Nostalgia may lead people like me to spend a moment or two with a snail-mailed article we might otherwise ignore.
These days, the most important ongoing referendum on the quality of scholarship occurs not through the distribution of reprints but through electronic intermediation. Say you have an idea, a happy accident but always welcome. You rummage around in electronic search engines for other work that has addressed your idea and consider how your version of the idea might occupy space (or intervene, as the cognoscenti say) in the literature. In doing so, you confront the published works of other scholars and make what use of them you can: to argue that prior work goes astray, to urge that it provides essential background reading, to imply that it stamps your inquiry with a certificate of authenticity — one worthy of article-length treatment. Occasionally, this rummaging stage will persuade an aspiring author that the idea has already been done to death in prior work that leaves no room for further development.
Occasionally, perhaps, but not often. Legal scholars, like artists, have a deep belief in their own vision and the importance of their own ideas. Legal scholarship, at bottom, rests on the premise that more must always be said: to capture recent developments; to address the wrong-headed decisions of the past; and to bring a new body of empirical evidence (statistical, historical, philosophical) to bear on a misunderstood policy prescription. Like the common law, legal scholarship chugs right along, chewing up the past and spitting out an aspirational version of the future, always trying to say something more.
In bringing that something more to the attention of the legal world, professional norms of scholarly integrity oblige the aspiring author to identify influential and relevant prior work. The law world doesn’t embrace literature reviews as such, but law review articles typically summarize, in text or footnotes, the important work that has gone before if only as a prelude to the inevitable claim of novelty. In the process of acknowledgement, legal scholars cite the work of earlier scholars and those citations, over time, provide what some see as an objective measure of the impact of the earlier work. Citation counts, summed over the entire body of a scholar’s work, may seem to enable an objective rank ordering of legal scholars and law faculties. Such rankings have become a staple of the modern world.11
But citation counts, and such other objective measures as downloads and abstract views, provide only the thinnest measure of quality and impact. It has become a commonplace of modern academic life to engage in practices that aim to boost citation counts. Scholars almost invariably cite themselves and their friends. Some law schools reportedly encourage authors to share their draft papers so their colleagues can “write themselves into the footnotes.” Just as provocative artistic work may attract attention and sales, provocative law review titles attract citation attention often without regard to an article’s content; citation networks or cartels arise within interested fields; and wrong-headed articles gain citations best understood as evidence of negative value. Citation counts, in short, send an undeniably noisy signal about the quality of legal scholarship, but one that has something of the same messy claim to impersonality that often accompanies article selection.
Unlike many social sciences, the legal world offers one additional source of nominally objective measurement: citations of scholarship in judicial opinions. Legal scholars, distinctively normative in their desire to shape the future course of the law, celebrate the citation of their work in judicial opinions as evidence that their ideas have landed. Measures of scholarly influence take account of academic and judicial citations.12 But here again, noise abounds. Judges may cite a piece as wrong or provocative, rather than as persuasive; judges may use citations more to lend an air of scholarly gravitas to their opinions than to explain how they arrived at their decision; or judges may want to signal their adherence to a particular methodology (originalism, textualism, realism) by citing leading proponents of such approaches. In any case, some scholars write primarily for a judicial audience; their treatises naturally attract judicial attention as handy summaries or restatements of the law. Other authors focus less on doctrinal work than on more theoretical topics that have less immediate relevance to the judicial task; for them, a measurement emphasizing judicial citations would seriously miss the point.
In addition to citation counts, the market for lateral law school hiring provides an important and often overlooked measure of excellence. Scholarly excellence shows up as the primary question hiring committees pose when they seek peer review of a lateral candidate. The test of excellence here, too, may be imperfect; friendships develop across the academy, and faculty committees may too often make the easy decision to hire an agreeable colleague at another school instead of doing the hard work of assessing quality across a range of candidates.13 An engaging empirical study of lateral movement indicates that the quality of a candidate’s article placement (a noisy signal) may better predict success in the lateral market than the candidate’s (similarly noisy) citation counts. If you happen to believe, as I do, that lateral hiring decisions come as close as anything in the legal academy to hard-edged, focused peer review, the correlation of lateral movement with article placement suggests that the law review selection process may not entirely fail in its mission to sort better work into relatively more prestigious journals. (Of course, one might explain the correlation on the rather depressing theory that faculty hiring committees treat placement as a proxy for quality and fail to do their own homework.) Arthur Leff moved from Washington University to Yale in 1969, two years after he published the Emperor in the University of Pennsylvania Law Review.
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America, as one might say, contains multitudes. It conducts, as Hickey reminds us, an ongoing referendum on excellence in virtually every field of endeavor. James Madison explained the idea long ago, in a sly aside of his own, as the filtration of talent. You can see it on the stages of New York City musical theater, the chorus lines of which feature the very best singers and dancers from the cities and towns of a very large country. Perhaps you can see it, too, in the work of legal scholars, all striving to say something new, indelible, and memorable about the legal world. Of the myriad voices that make up the unending chorus of legal scholarship, some fall flat and disappear often unaccompanied by any formal certificate of failure. Others ring true and emerge in ways the algorithm cannot predict or quantify.
There’s no escape from close reading in the assessment of legal scholarship, no escape from the joyful business of encountering the alchemy of an Arthur Leff on the printed page. We might measure Leff’s influence by asking how often he has been cited. Fewer times, surely, than Richard Posner. Or we might reflect on the direction of Posner’s subsequent work, which pivoted after Leff’s review to take up such questions as moral philosophy, legal pragmatism, jurisprudence, and sex. Maybe Posner had exhausted law and economics; maybe, like me, he found Leff’s critique persuasive and branched out. If so, and we may never know, then Posner’s pivot offers one additional measure of the greatness of Leff’s work.
In the end, then, I join with Hickey in celebrating the messy and complicated and endlessly frustrating world of artistic production and the democratic possibility that great art will find a way to insist upon itself and help us see more clearly. Hickey might not join me in celebrating our flawed but relatively open, relatively impersonal system of legal publication and the chief output of that system, the law review article. After all, Hickey once explained that “citizens devoted to inconsequential activities are rarely rewarded”; instead, “they are tenured.” One might follow Hickey in viewing the production of law review articles by tenured faculty as inconsequential in some grand schemes of things. Yet still today, more years than I care to admit after first encountering Leff in a law library cubicle, law review articles can move me to anger, joy, jealousy, awe, and a sense of quiet contentment, much the way art moved Hickey.
Of course, self-interest informs my assessment of the world of legal writing and publishing — a world that has made a small place for me and given me a professional calling and sense of purpose. But Hickey tells me that’s okay:
The truth is that everyone is interested and self-interested and should be. Everyone waters their own little flower (although some do so at less risk than others). Moreover, everyone is public-spirited: Everyone who waters their little flower tends the garden, as well, because no one is such a fool as to imagine their flower might flourish if the garden goes to seed.
* Owen L. Coon Professor of Law, Northwestern University Pritzker School of Law. Thanks to my longstanding acquaintance and new friend, the artist Randy Twaddle, for furnishing me with the book by Dave Hickey, Air Guitar (1997), which inspired this short essay on measuring greatness and failure in the art of the law review article. Thanks as well to my friends, family, and close readers, Jeff Anglen, Joshua Fischman, Paul Gowder, Steve Lubet, Sam Pfander, Mark Tushnet, and Rebecca Wexler and to Vasan Kesavan for stopping by my little corner of the federal courts garden. Blame for all seemingly irrelevant asides should be assigned to Arthur Leff, whose work taught us much about greatness. Failure we have all had to work out for ourselves.