In legal scholarship there should be an analogue to the notion of basic research in science. But academic legal scholars must not get the idea that basic research is that sort of research that never needs to be put to the test. Untestable research is cheap and easy -- because there is no way to determine whether results of such "basic research" are valid or invalid.
Saturday, March 10, 2007
Quasi-monastic, I say. The notion that we should reinstitute celibacy in the academy is admittedly a bit much.
Are you good at hierarchical clustering/causal discovery/graphical modeling/link analysis/phylogenetics/string-matching?Since I don't fully understand the question, I think I can fairly answer the question with either a "yes" or a "no."
The above image is Prrit Parmakson's elegant recasting of a cruder image that I created.
... but the use of citation counts or GOOGLE hits alone to measure the utility or scholarly merit of legal scholarship warrants the derogatory label "industrial scholarship"...
241 U.S. law journal articles in the LEXIS database have cited volume 1 or volume 1A of WIGMORE ON EVIDENCE (P. Tillers rev. 1983).In GOOGLE the search terms "Wigmore Evidence Tillers" generated 1,140 hits today (but some of these hits are to my blogs and my other online material, and I estimate that 10% of the hits are false positives).
By a broader measure there were 320 citations in scholarly literature in the LEXIS database.
The panel discussion at my law school involved many judges of the United States Court of Appeals for the Second Circuit. The gathering also involved (i) law faculty members at my law school, (ii) students at my law school, and (iii) assorted guests (many of them quite interesting).
The topic was the "utility of legal scholarship to judges." The discussion initially focused almost exclusively on the utility vel non of law journal articles to judges. But some faculty members began to mention other possible forms of legal scholarship. I was no exception to this partially self-serving attempt to re-direct discussion: I raised the question of views (both outside and inside the legal academy) about the utility of legal treatises.
Disclosure: I am working on a legal treatise. I also revised part of a legal treatise, part of John Henry Wigmore's monumental treatise on the law of evidence; I converted one of the volumes -- a hefty volume in small print -- into two hefty volumes (also in small print, with some of the longest footnotes known to man).
More than two decades ago several prominent law teachers doubted the value of "doctrinal scholarship," including legal treatises. (The doubters were mainly lodged on the right side of the political spectrum and on the left side, but not in the moderate, or mushy, middle.) Earlier on this blog I expressed -- I reiterated -- my opinion that the notion that legal treatises cannot harbor original or creative thought is twaddle. See Platonic Hierarchies of Legal Scholarship.
A Sign of the Times: This treatise is now available online.
After the panel discussion with the judges, I had a hallway conversation that moved me to gather some data about the number of times that prominent courts cite to Wigmore's treatise, including my part of the treatise. Here is a bit of the largely self-serving stuff that I found and noted:
There were a total of ca. 1,700 citations to the Wigmore Treatise by all U.S. courts from and including 2000 to the present.
During the same period the Supreme Court of the United States cited to Wigmore's treatise in 17 judicial opinions.
For purposes of this count I do not distinguish between opinions of the Court, concurring opinions, and dissenting opinions.
There were 16 citations to Wigmore by the 2nd Circuit from and including 2000.
There were 27 citations to Wigmore by the 9th Circuit from and including 2000.
My procedure here is to count the number of judicial opinions that cite the Treatise, not the actual number of citations. Hence, mutiple citations in one judicial opinion count as one citation.
There were 6 citations to Wigmore by the 5th Circuit.
There were 16 citation by the 4th Circuit.
There were 15 citations by the 1st Circuit.
So (as might have been expected) there is substantial variation among the circuits in the frequency to citations to Wigmore.
There were 9 citations by the NY Court of Appeals in the same period.
In all New York state courts there were ca. 55 citations to Wigmore (but in this instance I didn’t check for false hits).
83 Supreme Court briefs cited to Wigmore during the same period.
Westlaw’s database contains 9,428 appellate briefs around the country that cited to Wigmore during the same period (but I didn’t check for false positives).
WESTLAW shows 337 appellate briefs in New York that cited to Wigmore during the same period.
The Supreme Court of the United States has cited my Wigmore volumes -- 1 & 1A WIGMORE ON EVIDENCE (P. Tillers rev. 1983) -- four (4) times. See Selected Judicial Citations to vols. 1 & 1A J. Wigmore, Evidence (P. Tillers rev. 1983)
The High Court of Australia has cited my volumes six (6) times.
The Supreme Court of Canada has cited my revision seven (7) times. Id.
The Constitutional Court of the Republic of South Africa cited my revision once.Id.
For citations by U.S. Courts of Appeals and by the highest courts of the States of the United States, please see Selected Judicial Citations to vols. 1 & 1A J. Wigmore, Evidence (P. Tillers rev. 1983)
More about citation counts later.
It is a fair guess that bloggers have a more favorable opinion of blawgs than non-bloggers do.
It is true that the panel discussion at my law school lasted only ca. 90 minutes. Hence, there was not much time to talk. Nonetheless, the decision to talk almost exclusively about law journal articles and not at all about blogs is some evidence of the scholarly standing (or non-standing) of blawgs.
But blawgs are a recent development. Views about them will change. But precisely how they will change, I do not know -- and, at the moment, I won't venture to guess.
N.B. I may have made a kind of promise. But caveat emptor: the promise I have made here is not enforceable. Do not rely on any assurance given here that I will comment on legal scholarship. I may change my mind.
What sorts of matters will I discuss? I'm not sure. But here are some possibilities:
1. Legal scholarship and scienceYou will forgive me, I hope, if many of my forthcoming ruminations are suffused by notions that I have acquired over the years as a result of my study of evidence, inference, and uncertainty about (and in) the world. (But not all of my thoughts are the result of this sort of preoccupation.)
2. Legal scholarship and religion
3. Legal scholarship -- in and out of the academy
4. Legal scholarship and narcissism
5. Legal scholarship and uncertainty
5. Legal scholarship and law practice
6. Legal scholarship and legal treatises
7. Legal scholarship and "theory"
8. Legal scholarship and evidential inference and factual proof
9. Legal scholarship and "artificial intelligence"
10. Legal scholarship and the rule of law
Some people may be principally revolted by the possibility that an innocent man has been imprisoned for four decades.
Other people may be shocked to learn that a prisoner has had to face the prospect of execution for forty years.
The truth, of course, is that both things are appalling.
One of the three Shizuoka District Court judges who in 1968 sentenced a pro boxer to hang for four murders said Friday he thought at the time the man was innocent.
The judge, Norimichi Kumamoto, 69, said he agreed to the death sentence after the two other judges involved in the case made the decision, despite having prepared a 360-page document citing reasons supporting the man's innocence.
Kumamoto, who resigned from the bench shortly after agreeing to the sentence, made the remark the day before the 71st birthday of Iwao Hakamada, who has been on death row for over 40 years, during which time he has sought a retrial for the murder of a family of four Shimizu in June 1966.