If two legal scholars have their way, elevation to the Supreme Court of the United States will depend on a tournament in which the pertinent measures of relative judicial merit will be matters such as “opinion publication rates, citations of opinions by other courts, citations by the Supreme Court, citations by academics, dissent rates, [and] reversal rates.” See Stephen J. Choi & Gaurang Mitu Gulati, Abstract of “A Tournament of Judges?,” Legal Scholarship Network: Law School Research Paper Series, 5 Univ. of California, Berkeley, Public Law & Legal Theory No. 3 (May 9, 2003) (Georgetown Law and Economics Research Paper No. 394700, UC Berkeley Public Law Research Paper No. 121, forthcoming in Cal. L. Rev.).
This proposal is both ingenious and bold; it deserves your careful consideration. But, legal scholars, take heed! Do not shoot yourselves in the foot (“feet”?)! There is danger here!
If the proposal by Messieurs Choi & Gulati for the selection of judges gains general acceptance, there is a fair chance that similar measures for assessing the status or worth of legal scholars, legal scholarship, and law schools will gain acceptance. That would be a great calamity!
I concede that my warning may be overdrawn, perhaps even alarmist. Consider the following points:
1. It is not seriously imaginable that legal scholars and law schools will allow themselves and their behavior to be influenced by transparently spurious measures such as rates of publication.
2. It is clear that legal scholars and law schools will know how to protect their own status and integrity.
• For example, legal scholars generally fully and readily recognize that only the judgments of their peers – the opinions of like-minded legal scholars in similar law schools – do and should count.
• Furthermore, our brothers and sisters (if I may be allowed this turn of a phrase), – the members of our brotherhood and sisterhood generally (and, sometimes, passionately) recognize that citation to their works by non-members of their scholarly fraternity/sorority – e.g., by courts – do not, should not, must not, and cannot count! (Judges are not qualified to judge the academic merit of academic work.)
• Finally, it is clear practically beyond any possible peradventure (to practically all legal scholars, in any event) that frequency of citation in non-law journals and books and, more generally, the standing of legal scholars and legal scholarship in the scholarly community at large are wholly irrelevant and must remain wholly irrelevant to the assessment of a legal scholar’s or law school’s qualifications, competence, standing, or worth.
Even the discredited U.S. News & World Report ranking system – to which, of course, no respectable legal scholar or law school pays any heed – views such measures of academic standing as spurious and irrelevant.
I do not mean to say that frequency of publications in law journals, particularly in estimable academic law journals – you know which ones I mean, dear Reader –, I do not mean to suggest that frequency of publication in such reputable journals should not count. To the contrary: publication in such law school journals is the only valid measure of the scholarly standing and achievements of law professors!• Any fear that the use of such a measure of scholarly merit – the use of such a hermeneutic (“hermetic”?) circle – will tend to suppress originality is unwarranted. It is as plain as anything can be that creativity – like cream – always rises to the top. We legal scholars can count on each other, – we can count on the scholarly consensus among us, on our common opinions, to recognize, accept, and reward original and creative legal scholarship whenever and wherever it appears! Cf. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (general acceptance test of admissibility of novel scientific evidence). Do you need proof? Consider this: Did not U.S. law professors readily recognize (ca. 1972) the significance of the philosophy of Georg Wilhelm Friedrich Hegel (1770 - 1831)!?! This precedent suggests that your typical U.S. law professor will be equally quick to recognize the importance (and existence) of novel fields such as fuzzy logic, artificial life, and temporal logic. In any event, when law professors do engage with such novel material, they will sally into this unfamiliar terrain with their customary intelligence. Of this there can be no doubt!