The Judicial Process, um, Movement(?)

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One of the things that seems critical to establishing oneself as a scholar is becoming a part of a broader community of scholars.  Six-plus years into my academic career, I feel only partially successful in this regard.  Here’s why: When people ask me what I write about, I usually say “the judicial process.”  It’s an accurate answer.  Nearly all of my scholarship has to do with judging, including the processes of appellate review, the functions of judicial opinions, and a concept I’ve called “judicial inactivism.”  I find it all fascinating and important, and expect it will keep me busy for the rest of my career.

But as I scan the schedule for the upcoming American Association of Law Schools annual meeting, I feel as though I lack a home.  It’s not that there isn’t plenty of stuff written dealing with the judicial process. Nearly every day Larry Solum brings my attention to at least one article that falls into the judicial process category. But the authors seem to have primary allegiances elsewhere – they are Civ Pro people, or Con Law people, or Empirical Legal Studies people, or what have you.  Nor is there a recognized Judicial Process component of the curriculum.  (I’m in the early stages of trying to change that.  More on that in a subsequent post.)

This strikes me as odd.  And so I wonder: Should there be a judicial process community in some formal sense?  After all, if I may understate the matter somewhat, courts and judges play a central role in this enterprise of ours.  Given the constant chatter about judicial activism and the various threats to judicial independence and the explosion in the amount of empirical work being done on courts and the kerfuffles over unpublished opinions and on and on, oughtn’t those of us who write about judging and courts at the very least get together from time to time to talk about what we’re up to?  Am I alone in this?  If someone were to throw such a party, would anyone come?

Cross posted at PrawfsBlawg.

Malcolm Gladwell and Legal Scholarship

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 Gordon Smith and Orin Kerr have interesting posts up about their respective writing processes. I’m struck by the parallels with the two types of creativity – conceptual and experimental – that Malcolm Gladwell (pictured to the left) discusses in his latest New Yorker piece (which in turn draws on the work of David Galenson).  As the distinction is explained on Galenson’s web site: “Experimental innovators work by trial and error, and arrive at their major contributions gradually, late in life. In contrast, conceptual innovators make sudden breakthroughs by formulating new ideas, usually at an early age.” The latter, one imagines, write law review articles before doing the research.  The former go through lots of research, and lots of drafts, before arriving at a final product.

I’ve found that I tend toward the experimental.  For my first article, I thought I had a good sense, when I started, of where it was headed.  It turned out okay, but in retrospect I think I was a little too much the captive of my opening idea. Over time I’ve become more comfortable with the notion that I will, at the outset, have almost no idea where an article is headed.  I pick a topic and ask myself, in effect, “what’s up with that?”  I have some preliminary thoughts, of course, but find that the immersion that comes through research reveals interesting angles that I hadn’t anticipated.  There’s a cumulative effect as well.  Having been at the same family of topics for six-plus years, I feel like I’ve acquired not only a greater base of knowledge, but also a better sense of how to go about immersing myself in the research process. (Cue the comments about the value of a Ph.D.)

If nothing else, Gladwell’s essay (and Galenson’s research) gives me reason to keep plugging away.  There may or (much more likely) may not be a major contribution lurking within.  The only way for a fellow like me to find out is to keep at it.

Cross posted at PrawfsBlawg.

Baseball Metaphors and Judicial Opinions

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A long time ago–so long ago, in fact, that the editing process was conducted entirely via Fed Ex and (gasp) telephone* –I published an article on the use of baseball metaphors in judicial opinions. It is one of 19 hits in the Westlaw JLR database for “Kirby Puckett,” one of four for “Kent Hrbek,” and the only law review article ever written that mentions Puckett, Hrbek, and Ron Gant. Though I missed out on all the fun that might have ensued had it been more readily available when Chief Justice Roberts was describing his role in umpireal terms, and even the more recent discussions here, I have just now posted it on SSRN for your procrastinating enjoyment.

* It’s interesting to me that the telephone seems to have disappeared from the editing process. Not once since I started teaching have I spoken to a law review editor other than the one who made the publication offer. Maybe it’s not that surprising, though. I remember some of those conversations from the editor side as being a little intimidating. That might have been partly a product of how my first conversation with an author on the phone unfolded. He (who was kind of big-namish) came across as a little grouchy, and not all that pleased with some of the edits proposed by my predecessor. Somehow or other–I guess I was trying to find a source or something as I fumbled for an explanation of whatever my predecessor had done–I pulled the phone off my desk. From his side perhaps the line just went dead. On my side there was a loud crash and a cascade of papers onto the floor. In retrospect, not that big of a deal. At the time, a little bit mortifying.

Cross posted at PrawfsBlawg.

Lawyers and Legal Scholarship

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This [i.e., engaging in the conversation started in this post] wasn’t where I’d planned to start, but since I’ve got some thoughts on the scholarship-practice divide I might as well add my two cents. I spent just over eight years in practice before entering academia, so I have some understanding for the practitioner perspective. My firm maintained subscriptions to many of the top law reviews, which I would browse as time permitted. My reactions ranged from “wow that’s really interesting!” to “wow that’s complete ivory tower BS!” to “you know, I think I can actually use that!” And use them I did. I distinctly recall, for example, discussing Alan Michaels’ “Constitutional Innocence” article in the Harvard Law Review at oral argument before the Minnesota Court of Appeals. Nobody laughed.

So I think there’s plenty of scholarship, even work done at relatively high levels of abstraction, that can be put to work in practice. Continue reading “Lawyers and Legal Scholarship”