The Volokh Conspiracy

At CoOp, Lawrence Cunningham ponders how academics should respond when someone else incorrectly cites their work.

Wonderful as it is to be cited, being cited incorrectly poses a dilemma. If your article is referenced for a proposition it does not support, what should you do? Should you alert the author of the piece or the editor of the journal? Should you ignore it? Should you correct the reference the next time you publish on the topic?

It’s a good question, and something I’ve wondered about myself.

David Lat (Above the Law) reports on an interesting e-mail exchange among the editors of the Harvard Human Rights Journal (which, like the great majority of law reviews, is edited by law students); I quote a long excerpt below.

Here’s my take: It’s almost inevitable that an editor’s judgment of the quality of a law review article — especially an article that makes arguments about what the law should be, rather than just describing what it is — will turn in part on the editor’s ideology. Even if the editor tries very hard to just evaluate the quality of the reasoning, and set his own views aside, it’s human nature to evaluate reasoning more favorably if you agree with its bottom-line results.

Moreover, some journals see themselves — and are seen by the world — as trying to propagate a particular set of views. That’s most clear outside the academy, with magazines such as The Nation or The National Review. But it’s also true for some law journals, such as Unbound: Harvard Journal of the Legal Left and The Texas Review of Law & Politics, which carries on its site the slogan “The Unfettered Pursuit of Conservative Legal Scholarship.” I think it’s generally better for most law reviews to not limit themselves this way. But there’s certainly room among the many hundreds of law reviews for a few that have an overtly ideological approach, if they are indeed being overt about it.

What troubles me about the e-mail is that its focus is not on the ideology of the article, but the ideology of the author. That, I think, is much more troublesome in an academic publication, because it contradicts what should be a basic academic principle — evaluate the qualities of the argument (even if your sense of the qualities is colored by your politics), not the politics of the arguer. (There are some exceptions, for instance if you’re trying to put on a debate about the policies of Administration X and you want people who served both in Administration X and in the ideologically opposite Administration Y, but this doesn’t seem to be what happened here.)

That’s the way reasoned academic debate is supposed to go forward, it seems to me. And editors’ concerns about which Justice or President someone worked for strikes me as quite antithetical to that sort of reasoned debate — even if it’s not the “one factor alone” that drives the selection decision.

In any case, here’s the excerpt:

Near the end of a lengthy email containing substantive comments, both positive and negative, about a submitted article, an HHRJ editor appended this coda:

In addition, I am a little concerned based upon [Author D]’s CV. He is incredibly conservative, clerked for [Conservative Justice A], worked in the White House under Bush, questioned [Liberal Justice B] during her confirmation hearings in Congress, and has written critically on [Liberal Justice C] in the wall street journal. Maybe that background isn’t important to all of you and I understand the need to have HHRJ be open-minded buuuuuuut, yeah, doesn’t make me want to take this article.

... Another editor responded to that message as follows:

ok i trust [Editor Y]’s judgment — those all sound like major concerns and are enough to reject the article. i’m fine with rejection based on that — we really need to act quickly on all this. other thoughts?

The journal then rejected the article.

We reached out to the HHRJ for comment. The journal released this statement:

Continue reading ‘Harvard Human Rights Journal Editor “a Little Concerned” About a Prospective Author’s Having Clerked for a Conservative Supreme Court Justice’ »

I’ve seen people err on this so often that I thought it was worth noting: If you’re rearranging citations in a footnote (usually to follow the Bluebook citation order recommendations), make sure you look closely at the parentheticals.

Some parentheticals in a long citation refer back to earlier parentheticals, using phrases such as “(same)” or “(similar except for ...).” Such references make sense, because they make string citations shorter and, often, easier to grasp. But if you just rearrange the order of the citations without updating the parentheticals, the parentheticals will now no longer be correct.

More broadly, some citations in a citation string are not in the same order as the Bluebook recommends, precisely because they break down sources by subject matter — for instance, they might cite some statutes that use one phrasing, with “same” or “similar” in all the parentheticals but the first, and then some other statutes that use another phrasing, with “same” or “similar” in all the parentheticals but the first. Watch for that; and if you see that, then either don’t reorder the citations in a way that will break this useful separation, or at least talk to the author about whether he wants to keep his original citation order.

Almost five years ago, I wrote a post arguing for the abolition of the Bluebook, the standard system of legal citation used by most law journals. As I argued there and in several subsequent posts (e.g. here), I think the Bluebook is vastly more complicated than it should be, and creates an enormous waste of time and effort. But I’m a Bluebook cheerleader compared to Judge Richard Posner, whose recent Yale Law Journal article criticizing the Bluebook was recently linked by Senior Conspirator Eugene Volokh:

Nowadays the word “hypertrophy” is used mainly to denote a class of diseases in which an organ grows to an abnormal size because of the uncontrolled growth of the cells that constitute it. But the word is still used occasionally to denote a structure or activity that has grown far beyond any apparent functional need. An example is the Egyptian pyramids. The pharaohs needed a secure burial place because they were buried with valuable possessions that they believed they would need in the afterlife. But security didn’t require an immense pyramid of stones above the burial place....

The Bluebook: A Uniform System of Citation exemplifies hypertrophy in the anthropological sense. It is a monstrous growth, remote from the functional need for legal citation forms, that serves obscure needs of the legal culture and its student subculture.

Judge Posner is one of the founding fathers of Bluebook abolitionism, having advocated it for almost twenty-five years, ever since his 1986 University of Chicago Legal Forum [correction: U of Chicago Law Review] article on the subject. I am pleased to to follow in the footsteps of the world’s most distinguished legal scholar on this issue. I do worry, however, that his Egyptian pyramid analogy is a bit too generous to the Bluebook. While the pyramids were excessive relative to the pharaohs’ actual needs, they at least have tremendous esthetic value. By contrast, I doubt that tourists will will ever flock to see copies of the Bluebook. Indeed, rare is the person who ever opens up the Bluebook when he doesn’t absolutely have to.

Soon after my original 2006 post advocating Bluebook abolition, I wrote a follow-up explaining why perverse incentives prevent most law journal editors from moving to a better citation system. Not much has happened in the last five years to make me more optimistic. However, as President Obama once said, “Hope is not blind optimism.... Hope is that thing inside us that insists, despite all the evidence to the contrary, that something better awaits us if we have the courage to reach for it, work for it, and fight for it.” So I, along with Judge Posner, will continue to advocate the abolition of the Bluebook. If we ever succeed, it will be an example of change we can believe in.

UPDATE: It’s worth noting that appended to Posner’s article is a copy of the highly simplified citation system that he uses in his judicial opinions. It’s not only vastly superior to the Bluebook. It’s also better than the University of Chicago Maroon Book and other standard alternatives. As I have argued in the past, switching to the Maroon Book would be a vast improvement over the Bluebook. But Posner’s system is even better than the Maroon Book, because it is much simpler, but doesn’t sacrifice anything essential for readers to be able to check citations. [I have corrected a typo in the first sentence of this update. Thanks to commenters and Eugene Volokh for pointing it out].

UPDATE #2: Commenter Andrew puts the point better than me, and perhaps better even than Posner:

I disagree with this blog post. People far and wide will indeed flock to see the Blue Book, just as they flock to see the pyramids — when the Blue Book reaches the size of the pyramids.

But before that happens, I hope that the legions who slave away with the Blue Book will rise up and flee from bondage, across the great desert toward the promised citation system that Posner has brought down from the Sixth Circuit [note by IS: actually the Seventh Circuit]. And the people shall rejoice as legal fees drop and tuition abates, and no more shall multitudes bow before false idols manufactured in Cambridge, Massachusetts.

It is common in the author footnote of law review articles — you know, the footnote that follows the author’s name that tells you who the author is — to thank people who have read drafts of the articles and offered comments to help improve it. It is also common to follow that expression of gratitude with a remark that any errors in the article are responsibility of the author rather than the people who helped with it. Here are a few examples of the latter from recent articles, found by running a search for “thank! /p error! /s mine & da(2009)” in Westlaw’s popular journals and law reviews database:

All errors are mine and mine alone.
Any errors contained herein are mine.
All errors are mine.
All errors, of course, remain mine.
All errors contained herein are mine and mine alone.
All errors and conclusions are mine.
As always, any errors or oversights are mine alone.
Any errors that remain in the paper are mine.

The sentiment of the “all errors are mine” comment is supposed to be a generous one. You wouldn’t want anyone who just read the paper and offered some comments — or perhaps who helped do some research for it, such as a research assistant — to be blamed for errors in the paper.

At the same time, am I right that the “all errors are mine” comment is pretty useless? If a paper has an error in it, I put the responsibility for that on the author. If it’s a Bluebooking error, I might put the responsibility on the editors of the journal who were in charge of Bluebooking. But it would never occur to me to blame a person who read an article and offered comments for any errors found in the paper. Comments are just comments. They’re food for thought that the author can accept or reject, not a mandate to adopt the argument that the commenter suggests. The author is the person with her name on the front page: No one needs to be reminded that the author is ultimately responsible for the contents of what follows.

Assuming others see it the same way, can we all agree to retire the “all errors are my own” line? I realize that it isn’t the most pressing problem facing America right now. But it would be very easy to fix, and I don’t think anyone would miss it.

Law professor blogs love to debate the law review submission process, and in particular the pros and cons of student-edited journals. The most common complaints about the current system are that placements reflect author/school prestige and students just aren’t informed enough to separate better articles from worse ones. Over at Prawfs, Fabio Arcila comments: “There seems widespread dissatisfaction with [the existing] state of affairs, yet inertia continues to reign.”

Here’s a way to get over the inertia, or at least to get real empirical evidence of how serious the problem might be. I propose a study comparing placements to peer assessments that would work like this:

(1) Pick 10-15 articles in a particular area of law accepted for publication in a wide range of journals in the last year.
(2) Ask 10-15 accomplished scholars in that field to rank the quality of the articles (with author names and journal placements removed).
(3) Compare the explicit scholarly ranking with the prestige (and thus implicit ranking) of the law review placements.

If the assessments of the accomplished scholars closely or roughly match the assessments of the journals as measured by journal prestige, then the complaints about student selections and their overreliance on schools and authors probably don’t mean very much. On the other hand, if the journal placements and the assessments of top scholars show little or no correlation, then I think the study would provide a very real boost to the complaints about the law review placement system.

Oh, and I acknowledge that asking for the evaluations of top scholars has its own serious methodological problems. Those scholars have their own biases, and they may be influenced by author identity even if not provided (as most fields are pretty small — an expert can often figure out the author). But those biases don’t matter for these limited purposes, as the major complaint about student-edited journals is their inferiority to assessments by scholars.