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

Academic Calendar Rationalisation (some benefits especially for the Southern Hemisphere)

The below will briefly (sic) address: (1) Southern v Northern Hemisphere calendars & (2) Academic Calendar Rationalisation.  It turns out these are related, for universities on Southern Hemisphere calendars the issues posed by their academic calendar provide extra incentive to consider the more efficient trimester approach.

1.  Southern Hemisphere v Northern Hemisphere Academic Calendars

Its at this time of the year that I more often consider my Southern Hemisphere academic calendar.  This is when my colleagues in the Northern Hemisphere are wrapping up courses, marking/grading their final class papers/exams, or are perhaps even “done and dusted” with graduation ceremonies behind them and the long summer stretching ahead.  We, in contrast, are just now into exam period, followed by the winter break, and back to the semester by mid to late July.  We can, however, gloat when our classes finish in November and, aside from a few summer classes, do not start again till March.

Of course, any academic calendar is the manna from heaven of work schedules. We are truly lucky to work in academia. But, if one works in the international academic environment and moves between the two hemispheres’ calendars then one notices the negative consequences and issues of the two not fitting together too well. In fact, most of my Southern hemisphere colleagues do in fact feel these issues as they will typically work in an international environment of one form or another (it is the consequence of working and living in a smaller jurisdiction).  In contrast, Northern hemisphere academics typically have no idea that there is even a Southern hemisphere calendar.  When informed of it, they think it is so very strange and perhaps even a bit perverse.

Coming from a smaller jurisdiction we tend to try to adjust our interaction with the Northern Hemisphere, for they will certainly not budge – as they are the overwhelming majority.  Its true that from a population perspective, we are in a smaller jurisdiction.  Indeed most Southern Hemisphere states are somewhat off the beaten track.  Geographically most of the world’s land mass is in the Northern Hemisphere, as is a disproportionate share of the developed and dominating (often former colonial) states and legal systems.  (Though, here I do have to point out that Australia bats significantly above its weight in law, especially in the international fields.)

Thus, when we plan international conferences or invite guests from the North we try to ensure the timing fits with their calendar.  They never do the same for us (its not from being selfish, for they do not even know about our calendar).  Similarly, our visits to their institutions, by academics or students, also fits into their calendars – when possible.  While we generally are successful at such manipulations, there is no denying that we lose efficiencies and opportunities as a result of the significant differences in calendars.  Of course, we also gain some opportunities not available to those working with a Northern Hemisphere calendar.  For example, our students do not have to compete with the European and North American students for internships.  We can run programs in our breaks that permit our students to experience term time in Northern Hemisphere campuses (e.g. the UNSW Berkeley Law program).  Nonetheless, being the outlier to the major academic systems of the world may not be ideal.  Indeed, the University of Tokyo recently changed its undergraduate calendar to conform to the European and North American calendars (it also had not matched up with the European/North American model – despite sitting in the “correct” hemisphere).

Perhaps we should be taking our long holidays in the winter, to huddle under blankets at the beach – so as to maintain the integrity of and fit within a mythical world calendar.  Nope.  Not going to happen.  The beaches are, rightfully, too integral to our (as a nascent Australian I can now say “our”) culture to abandon those perfect summer holidays.   So – what can be done.  Perhaps academic calendar rationalisation.

2.  Academic Calendar Rationalisation Continue reading

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.

Recent legal education publications from ALTA

The beginning of the year heralds the release of a range of publications under the aegis of the Australian Law Teachers Association.

Their website now contains the 2013 editions of the

* Legal Education Review (LER), Volume.23, No.1&2
* Journal of the Australasian Law Teachers Association (JALTA), Volume.6, No.1&2 (also available as individual papers here)

The publications are well worth scanning for articles of interest.  There is something in there to excite, inspire or infuriate everyone (and parochially great to see five articles from UNSW in the mix).

Submitting articles to US law journals – Part 2 (pros and cons)

It is very tempting at this time of year to send an article to a US law review (ExpressO beckons) (why this time of year – see here).  But, there are, of course, benefits and detriments to US student run journal submission (I do differentiate them from the few US peer reviewed law journals). 

While others have written on this before (here  and here), I thought I would share some thoughts based on my experiences on this issue – based on my past experience as a student editor on a US student run law journal (the YJIL) and on my experiences having published numerous times in both US student run journals and in the more traditional law journals found outside the US (many of which have student operation components, though those are significantly less than found in US student run journals).

The below is a quick and dirty list of pros and cons as you ponder whether to submit.

Pros

Multiple submissions at one time, with the ability to game the system through expedited review processes to get accepted into as prestigious a journal as possible;

Quick submission decision turnaround (within a month or two);

Detailed high quality line editing (they would have made the English in the post perfect – or perhaps simply technically correct);

At the most prestigious journal the substantive editing can be exceptional;

High quality source (footnote) checking ensures accuracy;

Willingness to format the paper and footnotes;

Post publication access via Westlaw, Lexis, Hein, etc (better access than some of the smaller non-US publishing houses’ law journals);

Many are considered prestigious, despite not being peer reviewed;

Many speciality journals are willing to publish the less traditional field and approaches; and

Will accept lengthy articles.

Cons

Not considered peer review in most non-US law schools (and hence sometimes not countable for promotion or grant applications);

Sometimes excessive and ill-conceived substantive editing and interference in the author’s version of the paper (a complaint heard increasingly often);

Student editors not experts or experienced in the fields under review, with academic supervision often absent or minimal or with the academic supervisor also not experienced or knowledgeable about the fields;

Student editors often exhibit footnote and source fetishism (everything has a footnote added with multiple “string” citations);

Delays in publication can be excessive (as long as a year);

The most prestigious generalist law journals (the school’s primary journals and hence the most prestigious in most rankings) often will not accept non-US domestic law submissions or specialized field submissions (such as international fields);

Article acceptance often based on reputation of the author or the author’s institution;

Substantive analysis of the acceptance decision made by inexperienced law students;

Less willing to accept the standard length articles found outside the US; and

Often a requirement that the first part of the article lay out basic information on the field (otherwise the student editors will be unable to understand the substantive points of the article), which itself contributes to the needless length of the article.

Readers – any other pros and cons?

So – should one publish in a US student run journal?  It depends.  But, I can say that having moved to publishing in non-US peer reviewed journals  I now have little desire to submit my work to US student run journals.  I have grown used to the sophisticated reviews I receive from the peer review process and to the respect my writing and style receives from the editors who exhibit only minimal interference with my work.  I also believe shorter articles are better – if the idea cannot be expressed in under 15000 words (perhaps even under 10000 words) then perhaps it should be published as a book.  Also, the excessive citations and footnotes inserted into the US student run journal articles is unnecessary and detracts from the real sources readers wish to see or which the author wishes to emphasize.  So – for me, the non-US journals will be my future preferred fora. But, that is just my opinion.

By Colin Picker