The Cult of Advocacy: Comments on the State of Legal Scholarship-With Examples from Professor Ablavsky’s Latest Response

This posting relates some experiences from my long career writing for legal academic journals. It was triggered by Professor Gregory Ablavsky’s response to my “Cite Check” of his article, Beyond the Indian Commerce Clause (“Beyond”), and I use features of that response for some of my examples. But if you are interested only in a shortcut telling you who is being accurate in the Natelson-Ablavsky exchange, then I recommend the following:

*          Read his quoted extracts from Beyond and from his Fifth Circuit appeals court brief. They are in the Cite Check, which cites to the original documents so you can verify the accuracy of my reproductions.

*          Next, read the quotation in the original source. These also are reproduced in the Cite Check.

*          Compare the original source with how Ablavsky represented it. The differences should be apparent to any fair minded person. And the reasons behind the differences should be obvious.

The Larger Context: The Cult of Advocacy

That said, the fundamental problem addressed here goes far beyond selective quotation. It is that much—likely most—law review writing is not scholarship at all; it is advocacy in scholarly drag.

The passionate desire to “prove the case” creates incentives to engage in selective quotation. It also fosters other questionable practices: enlisting irrelevant evidence, ignoring and manipulating relevant evidence, and substituting word play for more substantial material. More rarely, you find what appears to be outright plagiarism, as I discovered recently in a law professor’s article in American University Law Review.

The cult of advocacy encourages commission of such misdemeanors, and they are further enabled by how legal academia hires law professors, defines their jobs, and operates law journals.

First Experiences

In 1971, I was a second year law student beginning a stint on the Cornell Law Review.  One day a senior editor (i.e., a third year student) assembled us newbies and told us we should start working on our student notes. (A note is a short article on a legal topic by a student law journal staffer.) He handed us a list of suggested topics prepared by the senior editors. Most or all of the topics explicitly prescribed our conclusions. The one I (reluctantly) accepted read something like, “Explain why the New York courts should grant summary judgment more readily in personal injury cases.”

After researching every relevant case, I concluded that, in fact, New York State courts should not grant summary judgment more readily in personal injury cases. I reported this to a senior editor, and that proved to be one step in the deterioration of my relationship with the editorial board.

Another step occurred when I was sent to the library to edit an article by a law professor from another school. The text of the article was substantially complete, but the footnotes contained many gaps. Quite a few featured the instruction, “Student: Find sources to support text.” When I inquired as to why we had accepted such an unfinished and obviously biased article, a member of the editorial board told me the editor-in-chief really wanted it published and that was that. It promoted a conclusion he found congenial.

Now, I should make it clear that I like advocacy. I started debating formally when I was in high school—and informally long before. I served as an advocate during my law practice, and as a political activist and newspaper columnist.

But advocacy has limits, even in law. And even as a 23-year-old student, I thought it was borderline-fraudulent for a publication that presented itself as a “scholarly journal” to prescribe conclusions before any research was done. After a few months, I resigned in disgust and got myself elected to the university senate. There, at least, advocacy was patent and honest rather than hidden and dishonest.

The law review editors wrought their revenge by sending a last-minute order to the printer to remove my name from the masthead of the issue I’d worked on for several months.

After law school, I turned down an opportunity with a Wall Street firm and entered Main Street-style practice. With a short break, I remained in practice for eleven years. I learned that even in law practice advocacy has its limits. Not just ethical limits, either:  Lawyers who lose themselves in what they want the law to be tend not to perform very well in counseling clients on what the law is.

The Move to Academia

In 1985—harboring romantic notions about emulating family members in more reputable academic fields—I sought a job as a law professor. I had taught part time and enjoyed it, and I was particularly eager to do professional research.  I assumed my experience on the Cornell Law Review had been atypical. By that time, I’d concluded that my decision to attend Cornell instead of some of the other schools to which I had been admitted—a decision driven by a merit scholarship I didn’t need—had been a mistake, and that other law journals’ standards might be higher.

But this was just a guess, induced by an image of academic research drawn from the procedure followed in other disciplines: select a topic to investigate, review the existing literature, reconsider the topic in light of that literature, adopt a tentative hypothesis, inquire into  facts and relationships, alter one’s hypothesis as necessary to comply with new discoveries, adopt a theory, describe and publish conclusions.

I had trouble getting a teaching job. I was told repeatedly that I had “too much practice experience” to be attractive to law school hiring committees. I was ranked as the sixth choice for a teaching slot at a fourth-tier law school, but—fortunately for me—none of the first five choices worked out. So I was hired. I later moved to a law school ranked in the third tier, although it offered the lowest salary and smallest law library of any AALS-accredited school within the 50 states.

That didn’t matter. I loved teaching and I soon learned that I loved research as well.

The Joy of Discovery

Honest academic research is filled with the joy of discovery. There is a lot of grunt work, but the joy brightens it. You often find your tentative hypothesis is wrong, but even that is rewarding because it means you have learned something.

I also learned that my initial hypothesis often was wrong. In the very first article I published as an academic, the ultimate conclusion was 180 degrees from my initial hypothesis. This has happened many times since. While I continued to advocate in other contexts, my basic research always has been about discovery and truth. On several occasions I have cheerfully declined a juicy grant because it was contingent on reaching prescribed conclusions.

Another delightful aspect of legal research has been working in a wide range of areas: private law areas such as property, contracts, associations, and fiduciary relationships; the public law realms of state and federal constitutional law; and mixed fields, such as remedies, water law, and legal history. It is remarkable how often insights in one field come from previous work in another. My discoveries about the meaning and purpose of the Necessary and Proper Clause, for example, were triggered partly by analogous clauses I had seen in law practice and partly by previous work on fiduciary relationships.

Thus, I do not understand those legal academics who never venture out of their initial field. I also believe the common practice of hiring inexperienced recent law graduates to teach constitutional law is perverse: No one should presume to comment on the Founders’ work until he or she has researched, and preferably engaged in, some of the activities that influenced the Founders. For that matter, no one should teach contracts who has never drafted a contract for a client, nor should one teach property law who never represented a client in a real estate transaction.

Negative Discoveries

I quickly learned that many, perhaps most, law professors did not share my research values. As one of my University of Montana faculty colleagues told me, “I never start an article without knowing what my conclusion is going to be.” For him as for many others, a law review article was merely a form of political advocacy.

This attitude seems to be rampant among writers on constitutional law. Just as at the turn at the last century, some justices on the Supreme Court tortured the Constitution to force free market outcomes, so today a large coterie of law professors see their “scholarly” role as changing or twisting the law to yield favored (usually collectivist) results.

The situation in Indian law is probably even worse than in constitutional law, as I learned when researching my 2007 article, The Original Understanding of the Indian Commerce Clause. Much Indian law writing is confessedly agenda-driven. A common motif is promoting congressional authority at the expense of the Constitution’s scheme of federalism and separation of powers. The motif is exemplified by the book treated as the “bible” of the field—written by a political appointee in the Franklin D. Roosevelt administration and duly parroting the administration’s version of the Constitution.

Also illustrative is Beyond. To build a case for plenary congressional authority under a single constitutional clause, that article employs post-ratification statements and actions by several branches of the federal government taken pursuant to several different clauses. True, in his response to my Cite Check, Ablavsky denies advocating plenary congressional authority over the tribes. But the proof is in his amicus curiae briefs defending the Indian Child Welfare Act—a law based explicitly on the theory of plenary congressional power.

Aside: Even from the Indian-advocacy point of view, I don’t understand this attraction to congressional pretensions. As Ablavsky properly acknowledges, “the federal government has long played an at-best ambiguous role in Indian affairs, often using its authority to cause great harm to Native communities.” I think tribes would benefit if measures such as the Indian Child Welfare Act could be implemented only through treaty negotiations with the tribes involved. Or if such issues were left to the states where tribes are located and in which they are politically influential.

But the more fundamental point is that my own law school/law review experience turned out to be typical rather than idiosyncratic.

“Law Office History”

Law journals’ culture of advocacy has created a practice real historians decry as “law office history”—manipulating history to make a case. Two related kinds of manipulation are (1) cherry-picking evidence and (2) roaming into irrelevant fields to find more cherries to pick.

In every legal realm other than constitutional law, it is axiomatic (aside from the rare “practical construction” case) that to discover the meaning of a document you focus on the language of the document and on statements and circumstances arising before or contemporaneously with its creation. The Constitution was ratified during the period from late 1787 through early 1790. What people did or said later usually is of little value in determining what the Constitution meant to those who adopted it, when they adopted it. But in search of cherries to pick, law-office historians commonly rely on events that could not have been factored into the ratification-era understanding because they hadn’t happened yet.

Beyond builds most of its case with “evidence” of this sort: Much of the article is a recital of events occurring and statements made after the Constitution was a done deal.

Another way of expanding the search for cherries is to rely on actions and statements by people who were operating under very different incentives than those influencing the framers and ratifiers. Beyond, for example, relies on several post-ratification quotations from Secretary of War Henry Knox. “Knox was an ardent proponent of national authority,” Ablavsky writes, “Frustrated by state interference under the Articles, he read the Constitution as a grant of expansive authority.”

Well, of course he did!  Almost any federal official who sees himself as trying to get his job done will “read the Constitution as a grant of expansive authority.” Of what value, however, are self-interested, post-ratification utterances for deducing the Constitution’s actual meaning? Ablavsky defends this approach as “unorthodox” and “holistic.” But he never defines what he means by “holistic,” and he never explains why we should interpret with “unorthodox” methods a document written to be construed in an orthodox way.

This sort of manipulation in the service of advocacy is by no means limited to constitutional or Indian law. During the decades I worked in private law subjects (torts, contracts, agency, etc.), I had occasion to check citations in William Prosser’s treatise on torts. They often did not support his text, and when they did support his text they often were not representative of the weight of authority.

I also learned that Prosser’s unreliability was widely known among personal injury lawyers. Yet my torts professor (like the case book) had allowed us to believe that Prosser was a reliable authority. After all, Prosser was working in the Great Cause of converting a fault-based tort system to a system of social insurance, a cause to which my professor subscribed with enthusiasm and continually promoted in the class room.

Word Play

Most legal academics have no scholarly training. When they enter their first teaching job, they are merely young lawyers with good grades and (usually) prestigious degrees. Although law is heavily dependent on history, economics, and culture, most have little, if any, training in those subjects. Incredibly, the overwhelming majority do not even have significant experience practicing what they are supposed to teach. This distinguishes them from academics in other professional fields, such as medicine and social work, where prior and/or continuing practice is expected and is interwoven with scholarship.

But law professors do have one strength: They are extremely clever with words. Not surprisingly, therefore, words commonly become substitutes for evidence and analysis. The undefined use of “holistic” in Beyond is a good example of using a word as a substitute for analysis. There are several instances of word play in Ablavsky’s response to my Cite Check. Here are two:

#1: Beyond claimed the federal government did not assert criminal jurisdiction over Indians before 1834. In my Cite Check I corrected this by pointing out that beginning early in the republic the federal government negotiated treaties that gave it criminal jurisdiction over Indians. Here is part of Ablavsky’s response:

“I am well aware of the earlier treaty provisions creating federal criminal jurisdiction, having written a detailed account in my book of a 1790s trial of a Muscogee Creek man under precisely the provision of the Treaty of New York that Natelson cites. However, I do not consider a treaty provision that grants the federal government jurisdiction as an assertion of criminal jurisdiction.”

Thus, Ablavsky admits there were treaties establishing federal criminal jurisdiction over Indians at least from the 1790s—he admits that there was a federal trial under at least one such treaty—yet still says there was no “assertion” of criminal jurisdiction. If there is any distinction here, it is not a meaningful one.

#2: In Beyond, Ablavsky wrote that “although the Indian Commerce Clause no longer provided that federal authority was ‘sole’ or ‘exclusive,’ as Article IX had, the Constitution eschewed these labels for all of the federal government’s enumerated powers.”

This was obviously a mistake. As I pointed out in my Cite Check, the Constitution actually modifies three enumerated powers with the words “sole” or “exclusive.” Ablavsky responds in part this way:

“’Sole and exclusive’ in Article IX of the Articles of Confederation applied to federal authority as against the states, including the power over Indian affairs. By contrast, the examples that Natelson gives are either geographic (the exclusive federal power over the District of Columbia) or address the separation of powers within the federal government (the “sole Power” to try impeachments). Article I, § 9 does prohibit the exercise of certain kinds of state authority—including several limitations that Thomas Jefferson as Secretary of State concluded heavily restricted state authority in Indian affairs. Nonetheless, it is clear that the Supremacy Clause loomed especially large in the drafters’ vision of reconciling federal and state conflict by empowering the federal government to overcome countervailing state power. That conclusion seems self-evident, but it also rests on Prof. Alison LaCroix’s first book, which heavily emphasized the Clause. ‘The Supremacy Clause was thus an explicit statement about the nature of the relationship between state and national levels of government,’ she writes. ‘Rather than depending on formal legal structure (the Privy Council’s power to nullify colonial acts, Congress’s power to veto state laws), the federal union would be kept in balance by a constitutional provision that actually invoked a category of law—namely, the ‘supreme law of the land.’

“Furthermore, what Natelson describes as ‘error’ was actually the subject of an enormous historical constitutional dispute. For years, lawyers in the early United States hotly contested whether the federal government’s enumerated powers were exclusive or concurrent, echoes of which persist in Dormant Commerce Clause doctrine. Prof. LaCroix’s forthcoming new book thoroughly, and in my view authoritatively, traces these arguments.”

Of course, this is blather with a scholarly patina. It serves to distract the reader from a simple mistake. It would have been better to admit the mistake (we all make them) and move on. But the professorial urge to overwhelm with a blizzard of words and putative authorities was just too strong.

And, frankly, that sort of urge can pay off—because of how legal “scholarship” is published.

Amateur Hour

Next time you meet an academic from a non-legal discipline, ask him or her if he or she knows how most legal academic journals are operated. If he or she says, “No,” then tell that person that nearly all are operated entirely by law students. Then witness the astonishment.

Think about this: Law professors entrust the selection, editing, and publication of their academic literature to people who generally (1) have little life experience, (2) have none in operating a scholarly journal—nor, usually, any kind of journal, (3) are not scholars themselves, (4) usually have no scholarly training or inclinations, (5) indeed, aren’t even lawyers yet(!), and (6) are potentially subject to pressure from members of their school’s faculty, who want their own work published.

Usually, the journals’ selection among potential submissions is not anonymous either. In fact, before considering an article some even ask for the author’s gender and ethnicity.

There have been some empirical studies reporting on the results. As you would expect, the process by which law journals select articles is driven largely by irrational criteria, such as where the author attended law school, where he or she is teaching now, and his or her perceived political views.

Here is a personal anecdote about the irrational nature of the selection process: I once had a telephone conversation with the editor-in-chief at Florida Law Review, who headed a team that had rejected one of my articles. (This article was accepted elsewhere and has proved influential.) The editor told me that although my article was far more substantive and factually buttressed than most of the manuscripts he saw, the clarity of my writing led the students to think my article might be superficial. He strongly suggested that in future submissions I render my prose more opaque.

Another anecdote illustrates how law review selection irrationality also has worked in my favor: Several years ago, I was delighted when one of my submissions was accepted by the Harvard Journal of Law and Public Policy. I was less delighted to learn that a principal reason for acceptance was that an editor found a favorite claim by one of his professors to be annoying—and my article rebutted it.

Ablavsky’s response to my Cite Check objects to my speculations (which I clearly identified as mere speculations) about how his citation deficiencies could have gotten through the editorial process at Yale Law Journal. But I said nothing about student-editorship that every involved person doesn’t know already.

The scholarly malpractice of turning legal academic work over to students goes beyond the operation of law reviews. It includes over-use of student research assistance. Ablavsky’s response to my Cite Check provides an illustration: He asked student assistants to examine appearances of the word “commerce” in 18th century documents to see if and when those appearances were equivalent to “trade” or “intercourse.” Of course, student assistants might tend to give their boss/professor what they think he wants. But even if they operated in perfect good faith, the results of this kind of delegation cannot be reliable: It is the rare student who is familiar with 18th century English, and almost no student knows that “regulating trade” then had a specialized meaning and that the definition of “intercourse” we use today was not the dominant definition when the Constitution was ratified.

This is one reason I rarely use student assistants—I’ve employed one for perhaps six weeks in the past six years. And when I do employ them, it is for carefully circumscribed and reviewed tasks, and more for their education than for my benefit. I find I usually spend more time when “assisted” than when working alone.

Mischief

Many of the better judges and academics (particularly academics in disciplines other than law) are aware of the low standards of legal “scholarship,” and therefore display healthy skepticism. But defective “scholarship” still can cause a lot of mischief.

I’m not going name names here because I don’t want to get into another spitting match with an offended academic who gets grants and a salary to write, as I no longer do. However, here is a partially masked case: During the 1980s, one of the nation’s top law journals published an article that was an oblique, but clear, attack on constitutional originalism. Now, originalism is merely a new name for the millennia-old practice of construing legal documents according to the understanding of the parties, and traditionally courts have considered all available and reliable evidence of that understanding. However, this article improbably contended that the Founders themselves didn’t interpret legal documents that way, so the Constitution shouldn’t be interpreted that way, either.

The conclusion was entirely wrong, and it was based largely on citations that were deeply defective—another example of how advocacy creates incentives to manipulate the sources. Apparently, though, the student editors really wanted to publish it, so they did. After all, it was a great rejoinder to the troglodytes who claimed the Founders’ understanding still mattered.

The article was widely cited, and it distorted constitutional discourse for decades—that is, until someone finally decided to check the citations.

Conclusion

Again, none of this is new. Many have described the scandalous state of legal “scholarship.” One was the late Alan Watson, a Scottish expert in comparative law and Roman law, and generally recognized as among the foremost in those fields. (Example: Watson headed the team that produced the first reliable English translation of Justinian’s Digest.) In Europe, Watson had been acculturated into real scholarship. But in 1980 he began teaching in American law schools, and his subsequent cry of frustration was published in 2006 as The Shame of American Legal Education.

This book takes on the whole American legal education system, which may be too much for most readers. But it contains devastating and entertaining take-downs of articles by some of the nation’s most idolized law professors. I recommend it.

The Cult of Advocacy: Comments on the State of Legal Scholarship—With Examples from Professor Ablavsky’s Latest Response