While I was on leave from the blogosphere, many people were chatting it up about two topics: (1) length of law review articles and (2) SSRN downloads as proxy for scholarly quality. (I would cite to all posts on the subject, but that would make my post too long and bloaty to be useful. For starters, here is PrawfsBlawg on length, Leiter on SSRN and length, Profs Black and Caron's paper on SSRN, and Andrew Moriss at VC on SSRN). On the off-chance that these topics have not been milked dry, I wanted to add an observation of a convention that adds to both article length and the unnecessary citation of well-known scholarly articles. In legal scholarship, there is no such thing as "common knowledge."
Both as a student editor and as a writer receiving editorial comments from student editors, I have faced the concept that in the law, there is no common knowledge. In high school and college, I was told by educators that I did not have to cite to facts that were common knowledge. However, as a student editor I asked for cites for many facts that an outsider might think were common knowledge, and Ihave answered the call of editors for similar "find cite" requests. So, in writing a paper on securities law, a sentence that reads "In the U.S., the securities laws reflect a policy of information disclosure" will almost certainly require a cite unless followed by a more detailed but identical sentence with a cite. But, if my paper isn't really on the policy of information disclosure, then I have to think of where to find a cite for this. So, I pull out of my brain a well-known securities law author or paper, knowing that if I search Westlaw using these terms that I will pull up a well-cited paper that I can use for this one cite. The resulting citation and parenthetical will not merely provide back-up for this noncontroversial statement but will start a different story (Author, Title, Vol. L.Rev. Pg (Date) (criticizing the regime of information disclosure as being short-sighted and easy to manipulate). Some readers may enjoy the digression, but it does add unnecessary length to an article that is not about that issue. And, it results in many papers being cited over and over because of their encyclopedia-like accessibility.
So, I would propose as an additional tool for shrinking the average size of a law review article for authors and editors alike to recognize a body of common knowledge, at least within a legal field, and not require 50-100 words to prove up what is essentially a statement of verifiable fact.
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1. Posted by Plainsman on August 19, 2005 @ 13:35 | Permalink
I'm quite sympathetic to this point -- what a drag it must be for a professional scholar to have to canvass the basic concepts for the Nth time. But the "explain everything" norm is very helpful for practicing lawyers, who often rely on law review articles to bring them up to speed in a new field. I know I do.
It's another example of the irreducibly hybrid character of legal scholarly writing -- a result of its dual audience.
2. Posted by Plainsman on August 19, 2005 @ 13:37 | Permalink
OK, not "rely on," but "use." Treatises are often too stylized and compressed; scanning two or three good accessible articles helps you find your feet with a legal topic.
3. Posted by Dave Hoffman on August 19, 2005 @ 13:37 | Permalink
Sounds like a really good article idea in its own right: "Common Knowledge: 50 Pages of Undisputable Truth."
4. Posted by Christine on August 19, 2005 @ 13:40 | Permalink
Plainsman -- good point. Law may be a unique discipline in that practitioners use academic papers as both secondary sources of authority, background material, and finding sources.
5. Posted by Richard on August 19, 2005 @ 14:04 | Permalink
The issue is analogous to judicial notice of commonly known, indisputable facts. Except most judges are more reasonable about it than student law review editors.
Student editors, by and large, reveal their real world inexperience by demanding that almost every statement, however innocuous, have cited authority behind it. As a forty-something law student, I once had a notes editor young enough to be my offspring instruct me to find an authoritative citation for the novel proposition that entrepreneurs prefer ventures that make money over ventures that don't.
6. Posted by alkali on August 19, 2005 @ 15:26 | Permalink
The problem arises when you use a law review article as support for the proposition rather than something that is actually evidence in support of the proposition. In the case of the proposition, "In the U.S., the securities laws reflect a policy of information disclosure"," there are very nice bound legislative histories of the securities laws that expressly state that view, and they are available on Westlaw (probably Lexis too). Why not cite those?
7. Posted by Christine on August 19, 2005 @ 17:47 | Permalink
Perhaps I chose an imperfect example, but I also think it's inefficient for an author or editor to jump into a legislative history project to find authority for a noncontroversial fact that is tangential to the thesis of the paper. If I am told to find a cite for something like this, something that 90% of readers do not need a cite for, I am probably not excited about launching into a legislative history project that may or may not pan out for me. If I'm unsure whether my research will be fruitful and result in this legislative history that you say succinctly supports this proposition, then I will go to the easiest, low-risk source. If the history doesn't state the policy, then I'm on a rabbit hunt to the FDR library in hopes that his personal papers describe how he rejected a merit-based '33 Act and sent the legislators back to the drawing board for an information disclosure-based Act. Either way, it sounds like a lot of work and 50-100 unnecessary words for a simple statement of fact.
8. Posted by Richard on August 19, 2005 @ 20:01 | Permalink
This discussion underscores why litigators so infrequently cite law review articles as authority.
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