By Rob Natelson – October 23, 2022 – Independence Institute.org
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…
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