Participant Introductions
Neil Hamilton taught legal ethics for a decade before expanding his focus to academic ethics across the university in the early '90s He dedicated 12 years to studying academic ethics, recognizing the lack of a cohesive field in this area within higher education His work reflects a deep engagement with the broader implications of ethical practices in academia.
AAUP, got very involved with American Association of Colleges and
My primary objective was to promote mandatory acculturation regarding academic ethics, but my efforts did not gain traction with national organizations, leading me to abandon the initiative around 2006 Despite this setback, I remain deeply committed to legal and medical ethics, which are actively engaged in these discussions In contrast, the academic profession seems less interested in improving its ethical framework, as it struggles to embrace new initiatives aimed at enhancing its standards.
S TANLEY F ISH :Good morning Unlike many of you or perhaps not, since
Having a diverse background in humanities and administration, I have developed a keen interest in defining the boundaries of scholarly activity and its interplay with political engagement This concern spans my experiences in both the humanities and law schools, where I have observed a troubling trend: the politicization of academic work While this phenomenon manifests differently in various disciplines, I believe it is equally harmful across the board.
Leslie Francis is a professor of law and philosophy at the University of Utah, specializing in ethics and the philosophy of law With a background in legal ethics and extensive experience in applied ethics, she has published and reviewed articles in medical journals, focusing on bioethics Additionally, she has taught research ethics to scientists, addressing critical questions about integrity in scientific practices, such as the ethical implications of manipulating images in research publications.
I have actively participated in numerous discussions surrounding the philosophy of academic ethics and have served on the board of officers of the American Philosophical Association (APA) multiple times, including a role as chair of the committee dedicated to defending professional rights.
Philosophers where there were a lot of academic ethics questions that came to our committee, and another time, more recently as president of the Pacific
Division of the APA and in that capacity, I was involved in drafting the main document on the APA’s website now about good practices in philosophy
In my experience navigating both the legal field and various other realms, I've observed a growing dialogue surrounding academic ethics, particularly in contexts outside of law This comparative perspective allows me to appreciate the nuances of ethical discussions across different disciplines.
Professor Fish is probably aware of that, too
Ryan Coville, a relatively junior scholar with a background in practice, initially approached academia from an advocacy perspective Over time, he has come to recognize the complexities and potential issues associated with advocacy work in scholarship.
Attending this conference, I recognize that I may have violated some key principles we will discuss My personal experience highlights the necessity for this dialogue, especially for junior academics transitioning from legal practice They often lack an understanding of how to approach topics from a scholarly perspective, rather than merely aiming to win arguments or advocate for clients.
Paul Horwitz from the University of Alabama discusses the unique position of law professors within the academic landscape, noting their lack of full integration compared to other disciplines He highlights that traditional graduate study processes, which help establish a canon and norms, are often absent in legal academia While the rise of fellowships is somewhat bridging this gap, Horwitz expresses concern that the focus remains largely on job acquisition strategies rather than fostering a deeper understanding of academic norms He emphasizes the need for a more thoughtful approach to legal education and the development of a cohesive academic culture.
My interest in legal scholarship has been shaped by a critical perspective, though I acknowledge some ambivalence in my views I frequently discuss these topics on PrawfsBlawg and have observed that private conversations among law professors regarding the ethics of legal scholarship often reveal a more revealing and cynical outlook compared to their public statements.
A last thing, which is self-serving, but connected, is, in theory, I’m working on a book that’s under contract whose sub-title is “Social Class and the
Chad and I frequently discuss how the social class of law professors, particularly from a professional managerial perspective, influences their writing and academic agendas This impact is often subtle yet significant, shaping the issues they prioritize and consider most important in their work.
The relevance of legal reform issues is important when considering how law professors approach their writing and the framing of their ideas Additionally, the book has significantly exceeded its deadline, indicating a maturity beyond the initial stages of development, though it is not yet fully realized.
So, when I meet a new room of people I’m happy to say—especially people who have kind of relevant expertise and interest, happy to learn from you or chat about it
O LDFATHER : So, I’ll piggyback off some of what has been said and end up being kind of autobiographical I don’t have specific expertise in the sense that
I have previously written directly about any of these topics I have certainly, as
Many of us have observed and discussed various phenomena that others have also noted Like Ryan, I transitioned into legal academia after spending a significant amount of time in practice—specifically, eight years This extensive experience in the field has made me feel fortunate to be part of this academic environment.
As a first-generation college student and lawyer from a small town in southern Minnesota, I navigated my academic journey without knowing any professionals This background has shaped my personality, leading me to independently seek solutions rather than ask for help Consequently, my scholarly pursuits have followed my personal interests rather than adhering to a mentor's prescribed path.
I think it’s something that comes out in the piece that I wrote
I acknowledge that I have faced many of the concerns we will discuss Currently in my second teaching position, I strategically chose where to submit my initial articles, aiming for journals that would attract the attention of hiring committees This approach was driven by my personal goal of relocating, and I believe it significantly influenced my successful transition to a new role.
Session One: What Counts as Legal Scholarship and What
H ESSICK : So, our first discussion session has two questions: “What should count as legal scholarship?” and “What is the obligation of neutrality?” What
In this article, we will explore the various types of scholarship beyond traditional books and articles, highlighting the distinctions among different forms of academic writing Understanding these differences is crucial, as each type may adhere to unique norms and standards Additionally, we will address the fundamental question of what constitutes good scholarship, a topic that has been referenced by several participants in their conference writings.
In exploring the significance of topic selection in scholarship, it's essential to examine the varying norms that apply across different fields A key question arises regarding our obligation to maintain neutrality in our work.
Horwitz acknowledges the importance of a recent email, specifically highlighting a question about the role of the publishing process He emphasizes that this topic remains relevant and worthy of discussion.
I think At least it’s a possibility that that seemed important to say it early rather than late so that it’s not forgotten
Francis emphasizes the challenges surrounding the operation of law reviews and suggests that these difficulties significantly impact how scholars function within the legal academic landscape He believes that addressing the issues related to law reviews is crucial for fostering a more effective scholarly environment.
The relationship between lawyers' ethics and law professors' ethics warrants further exploration, as they may not be directly applicable to one another For instance, while lawyers have a presumptive duty of confidentiality towards their clients, law professors may have a duty to disclose their sources in their publications, with certain exceptions, including the protection of human subjects in research Additionally, lawyers are not obligated to cite opposing jurisdictional authority in court, which raises questions about the ethical responsibilities of law professors in their scholarly work This distinction highlights the need for a nuanced understanding of publication ethics within the academic legal community.
H Essick emphasizes the importance of considering the implications of publication norms on various types of scholarship, as suggested by Leslie in her conference submission This highlights the need for a nuanced understanding of how these norms may differ across disciplines.
I hope we can reach a consensus on some uncontroversial topics, while acknowledging that there will also be more contentious issues to discuss.
Eli emphasizes that passive engagement is insufficient; scholarship is not merely an activity that enhances our reading or provides a sense of accomplishment Instead, it represents a fundamental obligation that scholars must integrate into their routines, regardless of whether we can measure the extent of this responsibility.
Nicky raised an important point about the obligation of legal scholars to enhance the reach and impact of their work While I agree with this perspective, I've encountered resistance from some colleagues regarding the necessity of actively promoting our legal scholarship It's crucial for authors not only to produce legal writings but also to take proactive measures to ensure that their work reaches the appropriate audiences, ultimately facilitating meaningful change.
The audience for legal scholarship may be a topic of debate, but it raises an important question: do we, as authors, have a responsibility to ensure our work makes a meaningful impact?
I believe there is an inherent obligation for scholars to share their views and research; however, the pursuit of maximizing impact can lead to self-promotion, which contradicts the essence of academia Instead, humility and a willingness to engage in constructive debate should take precedence Advocating too strongly for the significance of one's own work can be counterproductive and diminish the collaborative spirit that is vital in scholarly discourse.
Tenure committees are increasingly considering citations from both scholars and courts, but this practice may not accurately reflect the quality of work It is important to prioritize quality over impact, as these two factors can sometimes conflict with each other.
F RANCIS :I think it also risks confusing scholarship with advocacy It’s like the difference between pure science and applied science
B OOTHE -P ERRY :And just to comment, I don’t think that we actually disagree, Robin I think we’re saying the same thing When I’m saying
“impact” it’s not necessarily a narrow impact The idea is that you don’t just write as a legal scholar just to write If you just want to write, then go journal
But your writing should have some purpose and some meaning and not just,
Despite publishing in a law review, the author feels that their work goes unnoticed and lacks meaningful impact This highlights a common concern among writers about the limited readership and influence of academic publications, which often do not engage with broader political or societal issues.
W EST :Yeah, I just worry that much of the scholarship that we do highly value and should highly value is not aimed at changing anything It’s aimed at understanding
B OOTHE -P ERRY :But there’s an impact, so—
The concept of "impact" in writing has become increasingly broad, with some individuals, like a colleague of mine, focusing on self-enlightenment through their work, akin to journal writing However, I find this approach somewhat concerning I hesitate to endorse what I perceive as a troubling trend towards valuing citation counts, especially when these counts are used by courts and legislative committees, as this practice raises significant concerns about the integrity of scholarly work.
The essence of a profound statement I once encountered is that while our thoughts belong to us, their outcomes are not entirely within our control This suggests that as we engage in our mental processes, we bear responsibility for the results of our efforts.
Session Two: The Obligations of Sincerity, Candor, and
H ORWITZ : The official title of this session is “The Obligations of Sincerity,
I believe that addressing the concepts of "Candor" and "Exhaustiveness" does not indicate an acceptance of pluralism; however, I recognize that discussing these topics allows for dissenting views Nevertheless, I will outline my approach to this discussion clearly.
In this discussion, we will explore three key terms: sincerity, candor, and exhaustiveness I will begin with broad definitions of these concepts and invite participants to consider whether there are additional values that should be included as overarching principles This early engagement will allow us to identify any potential gaps in our understanding Following this, we can delve into the nuances, applications, and limitations of these values.
So, let me start with sincerity If people were coming up with a definition of sincerity, or again, if they don’t have a complete definition, if they have, as
I’ve said, key words or basic concepts that they think would help us illuminate what sincerity is, where would you start?
In discussing the motives behind a piece of writing, it's essential to clarify whether the work adheres to traditional scholarly ethics or leans towards advocacy ethics Understanding the author's intent allows readers to critically assess the content and determine its relevance and credibility This approach aligns with the need for transparency in scholarly discourse, enabling informed decision-making about the piece's value and impact.
In discussing the ethics of legal scholarship, it's important to differentiate between sincerity and candor, as these concepts may overlap yet hold distinct meanings We should consider the nuances of each term as we encounter them What are the key elements that define sincerity within this context? Let's explore suggestions and ideas to clarify these distinctions further.
The sincerity requirement should not be set too high, as this could lead to an unrealistic expectation of transparency, which is fundamentally unattainable both psychologically and existentially.
Francis questions the rationale behind categorizing certain research problems separately, noting that this practice is uncommon in other academic fields He highlights that various disciplines engage in challenging discussions regarding the selection of research topics, including ethical considerations and the appropriateness of certain inquiries, which are not addressed in the current framework.
The discussion on sincerity lacks a definitive answer, as there hasn't been an extensive debate to establish its importance However, it is acknowledged that sincerity might be a relevant factor The moderator invites further comments on sincerity before transitioning to the topic of candor, which may encompass similar ideas The possibility of additional input on the significance of sincerity remains open.
When considering sincerity in writing, it's essential to reflect on intellectual honesty, which involves being truthful about the evidence presented This concept ties into the broader discussion of legal scholarship and the challenges of promotion, emphasizing the importance of transparency regarding one's intentions Whether the motivation is financial gain or another purpose, disclosing these intentions is crucial for maintaining intellectual integrity.
In our discussion, we have primarily focused on the concept of candor Additionally, I believe that sincerity does not necessarily need to be consistent, as reflected in some of the draft codes we reviewed.
It's perfectly acceptable for an individual to present differing arguments in various works, as this allows for the exploration and testing of diverse ideas There is no necessity for a rigid logical consistency that binds all scholarly pursuits together.
W ALD :What about the opposite of X? You said not X, what about the opposite of X? Can you argue X and the opposite of X?
H ORWITZ :And that may end up applying to candor or transparency or whatever one argues for I want to explore the possibility of not X seems valid
In exploring the economics of religion, I have often championed an institutionalist approach to religious liberty and autonomy However, during a recent conference, I felt it was important to examine this perspective from a different angle As scholars, it is valid to not only advocate for a particular viewpoint but also to critically assess and pose challenging questions about it This dual approach enriches our understanding of the complex relationship between religion and economics.
But again, I’m not categorizing here, it may end up being a question of some other category
The importance of integrity and transparency in historical and political research is paramount Historians emphasize that mutual trust and respect are essential for their work, as integrity builds a reputation for trustworthiness, which is a vital professional asset Political scientists highlight two types of transparency: production transparency, related to data collection, and analytic transparency, which requires researchers to clearly explain how they derive conclusions from data This approach ensures a comprehensive understanding of the connections between data and conclusions, fostering credibility in evidence-based knowledge claims.
F ISH :Why do we call that transparency? Why not just making a good argument? I hate transparency I wish I’d never heard the word
H ORWITZ : Well, if “Against Transparency” hasn’t yet been taken as a book title, I’m looking forward to your next book
6 A MERICAN H ISTORICAL A SSOCIATION , S TATEMENT ON S TANDARDS OF P ROFESSIONAL
C ONDUCT (rev 2018) (1987), https://www.historians.org/jobs-and-professional- development/statements-standards-and-guidelines-of-the-discipline/statement-on-standards-of- professional-conduct [https://perma.cc/B5ZM-PJAT]
7 A MERICAN P OLITICAL S CIENCE A SSOCIATION , A G UIDE TO P ROFESSIONAL E THICS IN
P OLITICAL S CIENCE 10 (2d ed 2012), http://www.apsanet.org/portals/54/Files/Publications/APSAEthicsGuide2012.pdf
[https://perma.cc/DR35-3GF4]
The question of sincerity often surfaces in situations such as presentations or when sharing work, prompting responses like, “Do you really mean that?” This inquiry suggests skepticism about the speaker's intentions, questioning whether they aim to provoke or challenge the audience rather than communicate genuinely.
H ORWITZ : You’ve heard that question?
F ISH : Yeah I always mean everything So, is that what you have in mind?
Is it ever justifiable to withhold your true meaning in scholarly discourse, perhaps to elicit constructive reactions? This approach raises questions about the authenticity of communication and whether it can be seen as a form of meta-sincerity.
S ELIGMAN : I have a nạve, non-lawyer question: is sincerity an issue here?
Lawyers often represent clients they may personally disagree with or dislike, as they believe in the fundamental right to access the legal system and the importance of due process for all individuals.
F ISH : Well, sincerity’s a test sometimes, in some parts of the world
Session Three: The Mechanisms of Legal Scholarship,
Reviews and the Issues They Create
In discussing the mechanisms of legal scholarship, particularly law reviews, it's important to consider the inclusion of case books as a form of scholarship, as highlighted by Stanley Notably, works like "The Legal Process" serve as influential teaching materials that also contribute to academic discourse We must address several key questions, including the appropriateness of the current scholarship production model versus a potential peer review system While I believe a peer review model would be ideal, it seems unlikely to materialize in the near future, leading us to focus on the current landscape and our responsibilities as authors.
The ethical considerations in journal practices were previously addressed in the last model code, which was published in the Marquette Law Review twenty-six years ago These topics remain relevant today, highlighting the ongoing importance of ethics in academic publishing.
Dodson's model code effectively addresses many relevant issues, prompting us to evaluate how much we should prioritize these concerns in our discussions.
In discussing the responsibilities of scholars, it’s essential to consider the author's perspective, particularly in relation to practices such as puffery and the common phenomenon of "walking a piece down the hall." This involves recommending a colleague's work to law review editors at one's own institution, highlighting the ethical implications and obligations that scholars face in promoting each other's research.
15 Michael L Closen & Robert M Jarvis, The National Conference of Law Reviews Model
The Code of Ethics for political scientists emphasizes that peer reviewers must disqualify themselves if they doubt their ability to maintain scholarly detachment However, the current review process appears to lack this essential norm This raises concerns about the integrity and objectivity of scholarly evaluations I invite further comments on this matter.
In discussing the role of legal scholarship outside traditional formats like law reviews and books, it is important to consider whether such work should be included in the academic schedule, potentially broadening the scope to casebooks This raises questions about the standards that should apply to these contributions; individuals should refrain from using institutional letterhead if they are not willing to adhere to specific standards Encouraging more citizens to write from their perspectives rather than as perceived experts can enhance democratic discourse Thus, we must address the issue of how and when to engage with non-scholarly work in legal discussions.
Tomorrow morning's "what have we missed" session may serve as a suitable platform for discussing important topics, particularly regarding data accessibility and the obligations of researchers to ensure their work is replicable and falsifiable While peer review is preferred, acknowledging its controversies is crucial; it remains a better option than the alternatives In the absence of peer review, law reviews should consider implementing anonymous professional evaluations of articles Furthermore, faculty members must focus on evaluating the substance of scholarship rather than its publication venue, ensuring that they assess each article on its own merits, regardless of the prestige of the institution it originates from.
O LDFATHER :And I’ve taken the point about data disclosure here and I use the word “transparency” because that’s what the American Political Science
Association uses in order to do that So, sorry Stanley I felt I had to But there’s one where another discipline certainly has a provision speaking exactly to that
16 A MERICAN P OLITICAL S CIENCE A SSOCIATION , supra note 7, at 14
While peer review is often regarded as a gold standard in academic publishing, it is far from perfect The process is complicated and can be lengthy, leading to significant delays in publication Additionally, despite the intention for anonymity, the small pool of experts in specialized fields often results in reviewers recognizing authors, which undermines the integrity of the review process.
And the process is often tainted by academic politics
The perception that law reviews are inferior to peer reviews is being challenged by the emergence of a hybrid peer review model among elite law reviews Recently, these prestigious publications have implemented a quasi-peer review process, informing authors that their articles will be evaluated by the entire editorial board while also seeking external reviews This shift indicates a growing recognition of the importance of rigorous evaluation in legal scholarship.
The hybrid model of article selection, involving initial choices by editors and votes from student editors, alongside input from external peer reviewers, presents significant challenges This evolving approach lacks clear standards for soliciting peer reviews, leading to inconsistencies; authors may be required to suggest their own reviewers, and those reviewers often face a tight three-day deadline to provide meaningful feedback This pressure raises concerns about the fairness and integrity of the review process, potentially jeopardizing a colleague's chance to publish in a prestigious law review.
While the current law review process may not be perfect, it is not necessarily worse than traditional peer review or the new hybrid models some law reviews are adopting The notion that law professors must write articles that resonate with intelligent and well-meaning second and third-year law student editors does not bother me Although the process is far from ideal, I question whether it is truly inferior to peer review.
O LDFATHER :I kind of like this moderating thing because you get the microphone whenever you want it I think that, and this may be the point that
Robin highlights the historical role of law reviews, which were designed to make legal scholarship accessible to generalists, such as practicing lawyers and judges, rather than solely specialists This approach ensured that legal writing was clear and useful for a broader audience However, as legal scholarship has become more specialized and academic, this accessibility may have diminished There remains value in maintaining a standard that encourages clarity and comprehensibility, particularly for newcomers in the field, suggesting that a gatekeeping function could still be beneficial.
W EST :Thanks, not what I was going to say but I’ll sign onto it So, at
At Georgetown, the increasing tendency of students to rely on faculty as outside reviewers has led to significant issues, particularly the problematic practice of faculty members soliciting assistance from colleagues at other institutions to influence the publication of their own work or that of their associates This situation necessitates a change, suggesting that law reviews should be encouraged to seek anonymous outside reviews while resisting faculty pressure, which should be viewed as an ethical concern that, while not warranting termination, should certainly be discouraged.
Francis agrees with Robin and emphasizes that while direct changes to the structure of law reviews may not be feasible, there is an opportunity to influence law faculties by recommending best practices for the law reviews they sponsor.
W EST :And give credit for it
Francis emphasizes the importance of acknowledging student contributions in law reviews He suggests that a productive approach would be to identify the significant issues plaguing current law reviews, noting that the hybrid model fails to address these problems effectively.
Session Four: The Mechanisms of Legal Scholarship,
O LDFATHER :So, to the nuts and bolts We begin with modesty and humility As we move into this last phase, let’s bear in mind that we’ve got
Stanley for exactly one more hour, so let’s make the most of it So, go get him
The article addresses concerns regarding author behavior towards law review editors, highlighting instances where authors have sent inappropriate emails This issue emerged during a recent discussion and emphasizes the need for respectful communication in the academic publishing process.
F ISH :Intemperate in what direction?
The LDFATHER was often challenging to engage with, frequently labeling the student editor as unprofessional While I don't recall every detail, I distinctly remember addressing this individual's intemperate behavior, which ultimately led to a resolution of the issue.
F ISH :Is this bullying or attempted bullying?
Bullying can be described as a refusal to engage in tasks perceived as unnecessary, such as footnotes, particularly when coming from a different academic discipline that does not adhere to those conventions.
I think this is all ridiculous.” That sort of thing
In the realm of legal academia, it is crucial to acknowledge the power dynamics at play, particularly in interactions with law review editors Emphasizing a norm of civility can foster more respectful and productive exchanges, especially for those who may not be entrenched in legal scholarship.
We are now facing the challenging task of transforming our discussions into a foundational draft of ethical standards To guide this process, I will reference Paul’s initial draft, which prompts us to revisit the core question: what is the subject of our discussion?
Scholarship refers to a systematic pursuit of knowledge, often rooted in the traditions of the humanities It encompasses a three-part definition that reflects a response to contemporary discussions, particularly in relation to Robin's work This definition emphasizes the importance of critical engagement and intellectual rigor in academic endeavors.
Scholarship serves a vital role in pursuing accurate truths and enhancing justice within the legal sphere While some scholarly work aims for objectivity, there are instances where research may be influenced by partisan motives, beginning with a predetermined conclusion.
O LDFATHER :Is that a useful division of the world?
Hamilton emphasizes the importance of a defined ethical approach in advocacy, particularly adhering to the principle of "no affirmative lies." He acknowledges the selective presentation of evidence that supports a position while contrasting it with a model that demonstrates a good faith effort to consider all relevant evidence, including conflicting viewpoints Although not exhaustive, this nuanced approach highlights the value of integrity in exploring evidence comprehensively.
I prefer the term "good faith" over "sincerity" because it emphasizes consistent patterns of behavior rather than an elusive inner quality While "faith" is present in the term, it is not associated with a mysterious essence, making "good faith" a more concrete and reliable concept.
H ORWITZ :So, if I’m thinking again about what a hard copy looks like and
In this collaborative effort, our aim is to alleviate your workload by working together to refine the foundational ideas you provide We encourage you to share your framework, allowing us to enhance it with additional insights This discussion raises important considerations about the nature of legal scholarship, prompting us to explore not only its definition but also the distinction between scholarship and non-scholarship A key question arises: what constitutes scholarship as a whole? For instance, does a law professor's op-ed qualify as legitimate scholarship?
What does it include written by a law professor?” Maybe put it in a more open- ended way
O LDFATHER :Including potentially books—case books and other teaching materials and so forth Nicky
In our discussion about legal scholarship, we identified it as a good faith, collaborative, and engaging process that significantly contributes to the law and its landscape This raises the question of what specific types of collaborative efforts qualify as legal scholarship, prompting further exploration into these processes, such as the writing of a restatement.
O LDFATHER :Do we want to expand on the idea of collaborative?
Collaboration emerged as a central theme in our discussions, with frequent mentions of engaging with other scholars and participating in meaningful conversations The emphasis on collaboration highlights its importance in fostering academic dialogue and collective knowledge.
O LDFATHER :Does the audience for scholarship consist primarily or exclusively of other scholars? Does it necessarily extend to the bench and bar?
Does it possibly extend beyond that into the general public?
When discussing the types of writing that qualify for scholarship, it's important to recognize that each writing style targets a specific audience Regardless of the writing form, there remains a collaborative element aimed at influencing perceptions, whether it's swaying judges in a formal context or shaping public opinion through an op-ed While the nature of collaboration may vary depending on the scholarship, the essence of engaging with an audience remains constant.
Francis expresses confusion about the true nature of scholarship, questioning whether it primarily involves the production of knowledge or also the dissemination of it He is uncertain if writing opinion pieces, such as letters to the editor, op-eds, blogs, or tweets, qualifies as scholarship if it merely reflects personal views However, he acknowledges that if one creates content aimed at contributing to new knowledge and adapts it for a different audience through various mediums, it could be considered scholarly Francis emphasizes the importance of defining the scope of scholarship carefully and notes that while collaboration with an audience is essential, it shouldn't be misconstrued as requiring co-authorship in every instance.
S ELIGMAN : Just to amplify a piece of that that I think got buried, was the piece of “what makes it scholarship is the new knowledge.” And so, the focus,
Focusing on the production process of knowledge is more important than the final platform where it is shared While publishing insights in an op-ed may seem appealing, it is crucial to prioritize the research and thought that underpin the output Ultimately, the value lies not in the destination, but in the journey of knowledge creation.
O LDFATHER : And does motivation matter?
H AMILTON :Well, I mean, I think it’s good to look back as to what others have thought about this So, going back to Ernie Boyer in Scholarship
Session Five: What Have We Missed? Additions and
H ORWITZ :All right So, first of all, let me—I guess on behalf of everybody, express our thanks for a lovely dinner last night and your hospitality
And again, we’re delighted to have our friends from the Law Review here
So, the title of this session is “What Have We Missed? Additions and
Discussions have revolved around the nature and format of the lead document we envision for our enterprise, raising valid questions among participants Specifically, there has been debate about whether to create a restatement, code, or aspirational principles Our belief is that having a document is valuable, not to perfectly reflect everyone's sentiments, but to serve as a unique catalyst for further discussion at conferences Ultimately, our goal is to produce a document that stimulates dialogue and contributes to ongoing conversations in the field.
The Journal of Legal Education emphasizes the importance of initiating discussions by reprinting documents and soliciting feedback, acknowledging that such efforts may be imperfect This approach raises valid questions regarding the process and execution of these conversations Additionally, while traditional admission tickets and papers are common, it is essential to recognize that dissenting opinions, partial concurrences, and commentaries are also valuable responses to the shortcomings of a document.
And so, I ask you to keep that in mind, as we think about how it might be done, not done, restructured, and so on
F RANCIS :I agree with you that it’s really important to have a document
I propose we consider creating a document that outlines best practices or guidelines rather than a model code or restatement This approach aligns with established practices in other fields, such as those found on the Committee on Publication Ethics website, which provides resources for authors, journal editors, and publishers without resorting to model codes or rules Additionally, I have concerns regarding the implications of a model code, particularly the distinction between obligation and aspiration, and the assumption that there will be an entity to adopt and enact it, similar to a legislative body It raises the question of which organizations, such as law schools or law journals, would be responsible for enacting a model code.
The role of restatements in law remains controversial, raising questions about whether they serve as mere recommendations or actual restatements of law To address this ambiguity, it would be beneficial to create a model document that provides clear instructions for authors submitting to law reviews This template could outline submission processes, suggest alternatives for submission platforms, and clarify what information authors should provide, such as their CVs Additionally, it would be valuable for law review editorial boards to participate in discussions about what guidelines would best support their role as potential enforcers of a code or as curators of author instructions on their websites.
Horwitz emphasizes that he does not wish to pressure anyone to engage, whether from a distance or by compelling them to join the discussion.
Members of the Marquette Law Review editorial board are encouraged to attend and engage in the session While it's understandable if you prefer to observe due to your workload, your participation and input are highly welcomed.
Legal scholarship faces significant skepticism regarding its value, both within and outside law schools, particularly as institutions consider cutting back on scholarship amid financial challenges Many are questioning the necessity of legal scholarship, arguing that the primary mission should focus on training lawyers for practical legal jobs, relegating scholarship to a personal pursuit rather than a professional obligation To counter this trend, it is essential to articulate a clear argument for the inclusion of legal scholarship in the legal academy's mission Furthermore, the distinctiveness of legal scholarship remains inadequately defined; while general definitions of scholarship apply, legal scholarship should emphasize its unique methods, particularly the orientation toward justice rather than merely seeking truth This normative approach, characterized by disinterestedness and depth, distinguishes legal scholarship from other academic disciplines and legal practice.
Many new entrants to academia, including junior faculty and J.D students with academic aspirations, often express concern about their lack of Ph.D qualifications in other disciplines They frequently worry about how to articulate their research methods to appointment committees, particularly when asked, "What is your method?" This anxiety highlights the challenges faced by those transitioning into academic roles without traditional doctoral backgrounds.
Many individuals question their identity, asking, "Do I have one?" and "What is it?" This prompts a deeper exploration of self-awareness and authority within our communities It raises the essential inquiry of "Who are you?" directed at each of us, challenging us to reflect on our roles and the legitimacy of the groups we belong to Addressing these fundamental questions can lead to a more profound understanding of our collective identity and the authority we claim.
This article aims to initiate a dialogue on our collective aspirations and the potential development of an aspirational statement or code It seeks to encourage not only comments but also the start of a meaningful conversation on this topic Additionally, the Journal of Legal Education is expected to be interested in engaging in this discussion.
In a recent discussion, Horwitz emphasized the importance of gathering diverse perspectives on a key question, particularly focusing on the potential outcomes of creating a document that reflects these views, even if imperfectly He highlighted the need for strategies to address the issues raised and acknowledged the broader implications involved Additionally, he mentioned the intention to include an "editor's introduction to the symposium," which would provide context for the document, explaining its significance and the limitations of their authority in the matter.
We aim to initiate a meaningful dialogue and believe that having a document to facilitate this discussion is valuable It’s important to clarify how this differs from a code or similar frameworks While some concerns can be addressed within this document, not all can be covered We are committed to being responsive to these issues and ensuring transparency in our communication, allowing people to understand and form reasonable judgments based on our discussions.
When creating a statement or document, it's crucial to consider the target audience and the intended use of the final product Are we addressing individual law professors, deans of law schools, or larger organizations such as the Association of American Law Schools? Understanding our audience will shape the effectiveness of our communication.
In our discussion yesterday, we examined the tradeoff between drafting rules of conduct and creating a restatement, highlighting that rules aim to guide practice and protect vulnerable constituents, while restatements focus on codifying existing law The promulgation and enforcement process is crucial; the Model Rules of Professional Conduct, initially drafted by the American Bar Association, undergo review and adaptation by each jurisdiction, ensuring they receive significant buy-in from those regulated before becoming enforceable state law In contrast, restatements are published by the American Law Institute Therefore, if our goal is to publish a statement guiding individual law professors, a restatement may suffice However, if we aim to establish rules for adoption by the AALS and law schools, we should circulate our work widely to secure support from affected constituents, similar to the process used in the promulgation and adoption of the Model Rules.
It is crucial to recognize the value of scholarship and the unique aspects of legal scholarship while being cautious of the notion of lawyer exceptionalism When discussing the distinctiveness of legal scholarship, we must avoid implying that law professors or legal scholarship are inherently superior to other academic fields unless we can substantiate such claims If we aim to highlight the unique commitment of legal scholarship to justice, it is essential to provide substantive insights rather than relying on empty platitudes.
Session Six: Final Session
In our final session, H Essick emphasizes the importance of making tangible progress on securing the necessary document He has outlined several key issues that require consensus or decision-making, highlighting the need for clarity and direction Essick humorously reflects on the academic nature of his statement, suggesting that even if a decision cannot be reached, any progress toward one is valuable.
In our last session, we discussed potential titles for the document, and Ryan's suggestion of a "Draft Statement of Principles" garnered interest from several participants, even if it wasn't the top choice for everyone.
I like the word “norms” in addition to “principles,” but I wonder if anyone would prefer to call this a restatement or do we want to call it something like
“a draft statement of principles” or “a draft statement of norms.” Do people have strong feelings about this? Or do we put a pin in this and come back later?
Let's finalize the draft principles and revisit them later If anyone has concerns about the draft principles, now is the time to express them With everyone feeling tired, it’s a good moment to focus on crafting introductory paragraphs that effectively set the stage for our discussion I’m in agreement with this approach.
In crafting an editorial statement, it is essential to highlight the significance of scholarship and the necessity of adhering to scholarship ethics These core ideas should be prominently featured, as they underscore the foundational principles guiding our work and the integrity required in academic pursuits.
F RANCIS :This is just a research ethics question You were using the word
In discussing authorship, I believe it’s essential to clarify our roles I am comfortable with the three of you as co-authors, while the rest of us can be acknowledged as contributors Alternatively, we could all be recognized as co-authors, which would mean we share equal responsibility for all aspects of the work, from drafting to editing.
S ELIGMAN : I just wanted to say that I don’t think I should be an author, though I’m happy to be listed as a participant since it’s so far outside my field,
I don’t think that I can authoritatively sign on to anything It’s humility
H ESSICK :Anything else on this question?
W EST :Well, I think you’ve reached—you should get a pride of authorship and I’m happy to be signed on as a participant, and that’s assuming that you actually do write it
O LDFATHER :Come up with something?
H Essick expressed surprise at the authorship of a statement related to a conference, noting that the editors' preface indicated the participants involved in organizing the event He highlighted that the document emerged from the conference, but it was not implied that every attendee fully endorsed its content.
Including more authors in a publication can enhance its visibility and attract a larger audience, particularly when well-known names like Stanley and Robin are featured While this may not align with everyone's preferences, it reflects the reality of how notoriety impacts readership Therefore, if the goal is to increase the publication's influence, adding more authors could be a strategic decision.
H ESSICK :We’re doing this in part to counteract sort of the role of hierarchy and prestige
H ESSICK :People with better places in the hierarchy and more prestige
W EST :Well, you might want to wait on this until you see what the work entails
H ESSICK :Good idea I’m happy to put a pin in it
F RANCIS :Yeah And I don’t have an answer
F RANCIS :I mean, what I was going to say is I don’t have an answer—I’m happy with whatever you all and all the participants feel comfortable with, but
I think you all, because you’ve done so much work to convene it, have some kind of special role in that
H ESSICK : Okay So, we’ll go ahead and—
S COVILLE :I agree with that, by the way
S COVILLE :Yeah, I’m not trying to upset anyone
In discussing the significance of scholarship, it is crucial to address the ethics surrounding it, as highlighted by Leslie This conversation is essential for fostering a deeper understanding of the responsibilities that come with academic pursuits Additionally, we should consider other key elements that could enhance our introductory statement on this matter.
In the previous session, Chad highlighted several underlying causes related to the discussed pathologies, suggesting that it would be beneficial to address these factors in the introduction.
H ESSICK :Anything else? I was once told by a trusted colleague, you have to count to seven in your mind before you move on Ryan?
S COVILLE :Purposes, broad goals, including what we hope to achieve with this
W EST :Now, I’m counting with you
The discussion transitions to the definition of scholarship, inviting input from participants on their perspectives.
B OOTHE -P ERRY :I’m actually—I know you counted and you waited and I shouldn’t go back Just the document title—it’s not just going to be “draft principles,” right?
H ESSICK :“Of Scholarly Ethics” or “Scholarly Norms,” that’s right Okay
Scholarship is defined by substantial analysis and labor, emphasizing the importance of rigorous effort in its creation Interdisciplinary approaches and legal methods are both essential, with legal methodology potentially serving as the predominant framework for legal scholarship Additionally, clinical scholarship plays a significant role, highlighting the need for inclusiveness in the field These elements collectively contribute to a comprehensive understanding of what constitutes meaningful scholarship.
Francis emphasizes the importance of incorporating both internal and external legal scholarship, advocating for a comprehensive approach that welcomes diverse political perspectives He stresses the need for a non-ideological framework to ensure inclusivity and balance in the discourse.
H ESSICK :I guess, I should also add, we did say about specifically excluding—I’m so sorry I was not paying attention—explicitly excluding amicus briefs, op-eds, those sorts of things, so—
In a recent discussion, S E L I G M A N emphasized the need for a clear typology of activities that could be classified as scholarship He expressed concern over the term "non-scholarship," suggesting that it would be beneficial to identify a positive label for these activities L I G M A N proposed creating a list of legitimate endeavors that, while not classified as scholarship for the purposes of the conversation, still hold value and merit recognition.
W EST :Such as blogs This is a big issue Right
H ESSICK :It is an issue
The AALS defines scholarship to encompass various activities, including published works, presentations at conferences, contributions to drafting committees, and expert testimony in legal proceedings However, it appears that our scope of scholarship extends beyond these parameters, reflecting a broader interpretation of scholarly contributions.
W EST :Wait, that’s not scholarship or that is scholarship?
W EST :Oh, I think the scope is going to be narrower
The concept of scholarship is both broader and narrower than traditionally defined, especially when considering formats like blog posts It encompasses various forms and emphasizes qualities such as candor, neutrality, and originality A well-crafted blog post can introduce new ideas and provide thorough analysis, qualifying it as a form of scholarship, even if it doesn't represent the core essence of academic rigor.