The Bluebook’s Secret History!

Even in Australia one can feel the dread reach of the Bluebook.  For those interested in its history, a new article entitled “The Secret History of the Bluebook” reveals all!  Written by two members of Yale Law School, Fred R. Shapiro & Julie Graves Krishnaswami, it is forthcoming at Minnesota Law Review, Vol. 100, No. 4, 2016.  It can also be found here at SSRN.

The SSRN abstract (noting  HLS’ early monopolization of the royalties (nothing about HLS would surprise me!) as well as noting the succinct early versions of one to fifteen pages compared to today’s grotesque length):

“The Bluebook, or Uniform System of Citation as it was formerly titled, has long been a significant component of American legal culture. The standard account of the origins of the Bluebook, deriving directly from statements made by longtime Harvard Law School Dean and later Solicitor General of the United States Erwin N. Griswold, maintains that the citation manual originated at the Harvard Law Review in the 1920s and was created or adapted by Dean Griswold himself. This account is wildly erroneous, as proven by intensive research we conducted in the archives of Harvard and Yale. In fact, the Bluebook grew out of precursor manuals at Yale Law School, apparently inspired by a legal scholar even more important than Griswold, namely Karl N. Llewellyn. The “uniform citations” movement that began at Yale was actually at first opposed by Harvard.

In his most extreme misstatement, Griswold asserted that a collaborative decision was made in the 1920s by Harvard Law Review, Yale Law Journal, Columbia Law Review, and University of Pennsylvania Law Review to share the revenues from publishing the Bluebook (eventually amounting to millions of dollars) among the four journals. There is indeed now four-way revenue-sharing, but it did not commence until the 1970s, and then only after a revolt of the three “junior partners” against Harvard Law Review’s complete monopolization of Bluebook income for half a century, a revolt initiated by Joan Wexler of the Yale Law Journal.

Some readers may question whether originating the hyper-complicated Bluebook should be a source of pride for Yale. Our response is that, although the Bluebook version that subsequently developed under the leadership of Harvard Law Review currently consists of 582 pages, the two earliest Yale precursors of the Bluebook were, respectively, one page and fifteen pages long.”

Colin Picker

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Some thoughts on “editing a collection” as scholarship

Last week I discussed in another post why a textbook and writing a textbook should count as scholarship.  Today I will tackle the issue of whether serving as an editor of an edited collection should also count as scholarship.  This is important for, like textbooks, one’s work as an editor of an edited collection is in many legal academic environments not counted as “acceptable” or “countable” scholarship (even if within the specific law faculty the work may be recognized at book launches or in some catch-all category  for “[o]ther ‘research output’ which takes into account the practices of the discipline concerned”).  Just as I was annoyed last week by the negative view of textbooks as I worked on my textbook proofs, so too the negative view of the work of an editor of a collection is annoying as I spend today working on two edited collections (one thankfully at the very last stage before submission, the other a continuing millstone around my neck).

First, let me present some of the arguments why work as an editor of a collection should not be counted as scholarship.  The argument is essentially that the work of the editor is not scholarly, but is instead akin to the work of the research assistant, line-editor, book binder, printer, publisher and others whose contributions are not typically deemed to have added sufficient scholarly input to the final scholarship output.  Rather, the conventional view is that the work of the individual authors of each chapter is what constitutes the collections’ contribution to our knowledge and understanding of a field. The work of the editor of a collection is thought to merely include assertedly non-scholarly tasks as: line-editing; noting where further substantive work needs to be undertaken by the individual authors; fixing the citation form of footnotes and noting where further citation support is needed; interfacing with the publisher (typically providing the excuses why the book is not yet complete – such collections are completed as fast as the slowest two or three of the contributing authors); communicating with authors (either cajoling them to complete their contribution or apologizing for the delay in publication); writing the preface and perhaps a non-substantive introduction; and other logistical tasks.

But, as an editor of three collections that have been published and with two in the pipeline I can see a different side to the work of an editor, a significantly scholarly one.  As an initial matter, putting the book’s concept together, for the best versions of these books have a tight theme, is itself scholarly work.  The research required to draft a successful proposal and respond to the many demands of the publisher at that proposal stage also involves research.  Identification of appropriate contributors and communication with them, conveying the concept, is also scholarly.  Reviewing each chapter’s citations and recommending other support or citations is also a research activity.  But, the largest scholarly input of the editor is the substantive editing of each chapter – the demands of which are beyond even the best research assistants (assuming one has them).  When that substantive editing is done well, the contribution of the substantive editor is akin to the contribution of a junior co-author.  Yet, the editor of a collection does this for all the chapters – resulting in a significant aggregate substantive input to the book.  When I read through my past edited collections I see my thoughts, approaches, research and hard scholarly input throughout the entire work.

Furthermore, for the good collected works, substantive editors bring all the contributions together through the editing process to deliver one tight substantive contribution to the field.  Such substantive editing is very time consuming and includes independent research, not just for verification of author propositions but also for suggesting additional or alternate approaches the individual author should pursue to improve the work and to make it fit more tightly with the theme of the book.  Of course, there are edited collections where the theme is hard to identify or not well constructed, though a good introduction (itself scholarly work) can help.  There are editors of collections that do minimal or no substantive editing and only draft a cursory introduction.  As a contributor to more than a dozen edited collections I have seen the full range of editing.  It is easy to recognize in the final product which editors should have their efforts considered scholarship.  But, that issue speaks to the quality of their work as scholarship, not to whether the type of work is scholarship.  Just as an overly descriptive and unoriginal article in a journal is not an indictment of writing articles for journals as scholarship, so too bad edited collections and bad editing should not serve to undermine the scholarly nature of editing a collection.

In addition, at a policy level, by not sufficiently counting such work as scholarship there is a strong disincentive to work on such projects.  But, collections of work are valuable forms of scholarship.  They bring together different perspectives into one volume which is of tremendous value to their fields.  They provide authors an opportunity to work on an issue within a structured environment under substantive parameters which leads to valuable work that might not otherwise have been undertaken.  It is also another very good outlet for scholarship, as it disseminates scholarship in ways different to journals (e.g. at publishers’ tables at conferences, in libraries around the world, on book shelves in individual offices, etc).  Such collections also permit younger or new scholars to work on a project alongside senior members of the field and under the focused review of a senior scholar (the editor).  The editing produces high quality finished product, substantively of much higher value than that of many journals, especially in comparison to the many student edited journals (publication within which is often countable as “acceptable” scholarship). Furthermore, edited collections, unlike journal articles, are often the subject of a book review, itself a valuable contribution to the field . Finally, such books are “one-stop” resources on a discrete topic and are thus invaluable, a gold mine, for researchers.

In conclusion, as noted with respect to textbooks, a blanket characterization that the work that editors put into such valuable scholarship is not “countable” or “approved” does a disservice to the field and to the scholarly output of the editors.

Anyway, enough procrastination.  Review of draft chapters on comparative civil procedure or further work on the substantive introduction to a collection on China and international economic law beckons.

By Colin B. Picker

Some thoughts on textbooks as scholarship

In some jurisdictions, text books are not counted or countable as legal scholarship.  As I understand it, this is somewhat true of Australian legal academia.  I have to say, I find this somewhat perplexing (both hard to understand and somewhat annoying) as I sit here reviewing the final page proofs of the significantly revised version of my comparative law textbook (Comparative Legal Traditions: Texts, Materials and Cases on Western Law, by Glendon, Carozza & Picker (West Academic Publishing, forthcoming October 2014)).

As an author of numerous journal articles, book chapters and other forms of “acceptable” scholarship, I strongly believe that the analysis, research skills and scholarly efforts required to write a good textbook are at least equal to that required for the “acceptable” forms of scholarship.  In addition, a good textbook’s contribution to the development of the field can be equal, and sometimes greater, than many other forms of scholarship.

The research required to write or significantly revise a textbook can be intense.  Ensuring that the content (the texts, cases and commentary) in a textbook  are up to date across many hundreds of pages is a significant research challenge.  Furthermore, the typical textbook requires coverage across many more parts of a field than is required for the usual article or chapter, and even for many monographs (the gold standard of scholarship).

The legal analysis that is required for a textbook can be just as demanding if the textbook is more than just a compilation of texts and cases – and a good textbook should be significantly more than just a compilation of good texts (though identification and excerpting texts and cases is itself a valid form of scholarship). We would all agree that text presented without analysis by the textbook authors is not very helpful.  But the commentary required throughout a good textbook in order to present the field’s contours, internal connections and logic can be very difficult to craft.    Similarly, the questions and problems posed in a textbook that are designed to lead readers to deeper levels of understanding are exceptionally hard to write and may be little different than those analogies and hypotheticals provided in other acceptable forms of scholarship.

Of course, there are textbooks which would not satisfy the description I provide above. But bad textbooks should not be the ones used to set rules about whether textbooks are deemed acceptable scholarship or not.  After all, there is no shortage of bad scholarship, but so long as it is published in a peer reviewed journal or in a book published by one of the acceptable publishers it can be counted.  Obviously we should be looking between the covers to judge the scholarship quality of all types of publications, and not as a matter of course rejecting certain types.  While this may (or may not) be suitable in other disciplines, such as those in science, it is clearly not so for law.

There are additional and critical reasons why we should not penalize academics’ work on textbooks.  By relegating textbooks to the trash heap of scholarship we discourage the best scholars from working on these important parts of our fields.  Textbooks help to set the tone of a field by educating the future practitioners, officials and judges that are the lifeblood of the field. Indeed, often those textbooks continue to be found on their office bookshelves decades after they graduated law school.   I would thus argue that textbooks play a significantly more central role than does almost all other scholarship – so much more than the vast majority of scholarship which ends up hardly ever being read by these participants, or indeed by anyone.   Fortunately many of my colleagues and other legal academics in Australia and elsewhere ignore the negative consequences and do devote significant time and energy to writing textbooks.

As readers of this blog will know, I have written many pieces critical of American scholarship and academia (based on my experiences there and outside America).  But, the place of textbooks in American legal academia is an example of where American legal academia has it right.  It is often the case in America that the leaders of a legal field are the ones who write the textbooks for those fields.  For proof, look at how many of the Harvard, Yale, Chicago and other elite law school academics are authors of the leading textbooks in America (e.g., my co-author Mary Ann Glendon,).  Indeed, it is a sign of your standing that you write a textbook for one of the leading academic publishers.  The adoption of your textbooks across the country is a sign of and a reflection of your position as a scholar, itself reflected within the covers of the book given that so often those very textbooks develop new approaches and provide avenues for research not otherwise available – reflecting that they truly are valid forms of scholarship.

Anyway, enough procrastination.  Review of Chapter 12 of my textbook beckons.

Colin B. Picker.

Submitting articles to US law journals – Part 1

In many countries legal academics face complex questions about where they should publish their scholarship.  The choice between peer and non-peer reviewed journals, book chapters, monographs, web-based publications and so on all present different challenges, obstacles, benefits and opportunities.  One of the goals of this blog is to consider those issues.

In this post, the first in a series looking at US law journals, the simple question “how to publish” in a US law journal will be introduced.  That question is the first presented as the window for submissions is fast approaching, and so it is best to present the “how” information for those that have already decided to submit their scholarship to a US journal.

Very simply – the “how” is well presented here by the law library of the University of Washington (the subject of law library services, roles and mission will also eventually be discussed in this blog). The additional links at that page will prove highly useful to anyone considering the US law journal publication route.  Given the likelihood of successful submission peaks for February to March submissions, it is as well that anyone looking to publish in a US law journal in 2014-15 look now at that page.

This post should not be read as an encouragement to publish in a US law journal.  That more difficult question will be introduced in a later post.  Suffice to say there are many “cons” and a few “pros” on that issue for legal academics outside the United States (it is clearly a different calculation for American-based legal academics).  Until then . . . .

By Colin Picker

Pressure to publish in select journals results in distortions

Randy Schekman, Nobel prize winner, says his lab will no longer send papers to top scientific journals Nature, Cell and Science because of his belief that the pressure to publish in such journals distorts science. More and more, legal academics are coming under the same kids of pressure to publish in particular “prestigious” journals. As is the case in science, such pressure distorts the kinds of legal scholarship that academics choose to pursue. Since prestigious journals only rarely overlap with practitioner journals, for example, there is a risk that engagement between academia and the profession will decline. Is this simply a game we all accept we have to play for career progression, do we believe that it is ultimately of benefit to the legal academy to go along with this, or is it something on which we should, like Schekman, take a stand?

By Lyria Bennet Moses

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