April 07, 2006

Choice of Law Publishability

by PG

Continuing his championing of state law, Will Baude remarks in response to John Pfaff's comments about the greater quantity of scholarship on federal criminal law,

I had always assumed it was because the rewards to publishing an interesting piece on federal criminal law are roughly 10-50 times greater than publishing an interesting piece on a given state's criminal law, since the piece will be of interest to those who work in any jurisdiction (since almost all criminal law scholars in a given state seem also to be familiar with the federal criminal law of that state). So even if each given state is vastly under-investigated, it's the uncerainty about transferring results across markets that make people reluctant to invest in location-specific assets. [...]
(Ditto for constitutional law scholars. Why would Harvard hire an expert-- even the pre-eminent expert-- in Alabama constitutional law?)
Admittedly based on an n of 1, I'd argue that this isn't just a calculation about rewards, but also about publishability.

The same moot court editing partner I mentioned previously wrote his Note on the South Carolina constitution's provision for divorces on the ground of physical cruelty, which has been ruled to exclude mental cruelty as a ground. Because South Carolina is the only state that does not permit one to divorce for emotional abuse, his Note has limited policy implications for the rest of the nation, and he is finding publication very difficult -- the reviewing journals have deemed the Note an interesting read, but reject it as insufficiently relevant for their audiences. The South Carolina Law Review, which touts its frequency of judicial citation, only accepts student notes from its own membership. Therefore there seems to be a clear incentive for out-of-state law students, at least, to ignore state legal regimes, lest their work go unpublished because editorial boards find it too narrow.

This seems to me a great shame, as state legislatures often might benefit from the hundreds of unpaid hours of research and analysis that go into a Note. I don't know about South Carolina's, but Texas legislators normally meet once every two years and hold full time jobs aside from their political duties, so the amount of time one justly can expect them to developing expertise on a particular area of law is limited. While judicial citation might be the benchmark for a journal's prestige, use by the other branches should be equally meaningful, particularly for those who advocate self-restraint from the courts. Though my federalism seminar often assumed the judiciary to have the least expertise, because so much legal scholarship is oriented toward what judges should do, they may have the advantage in some aspects of law and policy.

This tendency is exacerbated when considering federal versus state law; for every 50 pages of advice given on reforming South Carolina's family law, probably a thousand are given on involving Congress in something that's traditionally a state matter anyway.

April 7, 2006 02:15 PM | TrackBack
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