Teaching Foreign LL.M. Students about U.S. Legal Scholarship

Journal of Legal Education

Volumn 51, Issue 4, 2001, Pages 520-531

  Edwards, Matthew A ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 0035746183     PISSN: 00222208     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (58)

1. See Jill J. Ramsfield, Is "Logic" Culturally Based? A Contrastive, International Approach to the U.S. Law Classroom, 47 J. Legal Educ. 157, 158, 185-86 (1997).
2. General guidance for law teachers supervising student seminar papers and law journal notes can be found in Elizabeth Fajans & Mary R. Falk, Comments Worth Making: Supervising Scholarly Writing in Law School, 46 J. Legal Educ. 342 (1996) [hereinafter Comments]. See also Eugene Volokh, Writing a Student Article, 48 J. Legal Educ. 247 (1998) (posted online in an expanded form at 〈http://www.law.ucla.edu/faculty/volokh/writing.htm〉); Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students, 2d ed. (St. Paul, 2000) [hereinafter Scholarly Writing]; Heather Meeker, Stalking the Golden Topic: A Guide to Locating and Selecting Topics for Legal Research Papers, 1996 Utah L. Rev. 917.
3. General guidance for law teachers supervising student seminar papers and law journal notes can be found in Elizabeth Fajans & Mary R. Falk, Comments Worth Making: Supervising Scholarly Writing in Law School, 46 J. Legal Educ. 342 (1996) [hereinafter Comments]. See also Eugene Volokh, Writing a Student Article, 48 J. Legal Educ. 247 (1998) (posted online in an expanded form at 〈http://www.law.ucla.edu/faculty/volokh/writing.htm〉); Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students, 2d ed. (St. Paul, 2000) [hereinafter Scholarly Writing]; Heather Meeker, Stalking the Golden Topic: A Guide to Locating and Selecting Topics for Legal Research Papers, 1996 Utah L. Rev. 917.
4. General guidance for law teachers supervising student seminar papers and law journal notes can be found in Elizabeth Fajans & Mary R. Falk, Comments Worth Making: Supervising Scholarly Writing in Law School, 46 J. Legal Educ. 342 (1996) [hereinafter Comments]. See also Eugene Volokh, Writing a Student Article, 48 J. Legal Educ. 247 (1998) (posted online in an expanded form at 〈http://www.law.ucla.edu/faculty/volokh/writing.htm〉); Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students, 2d ed. (St. Paul, 2000) [hereinafter Scholarly Writing]; Heather Meeker, Stalking the Golden Topic: A Guide to Locating and Selecting Topics for Legal Research Papers, 1996 Utah L. Rev. 917.
5. General guidance for law teachers supervising student seminar papers and law journal notes can be found in Elizabeth Fajans & Mary R. Falk, Comments Worth Making: Supervising Scholarly Writing in Law School, 46 J. Legal Educ. 342 (1996) [hereinafter Comments]. See also Eugene Volokh, Writing a Student Article, 48 J. Legal Educ. 247 (1998) (posted online in an expanded form at 〈http://www.law.ucla.edu/faculty/volokh/writing.htm〉); Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students, 2d ed. (St. Paul, 2000) [hereinafter Scholarly Writing]; Heather Meeker, Stalking the Golden Topic: A Guide to Locating and Selecting Topics for Legal Research Papers, 1996 Utah L. Rev. 917.
6. This is not to say that an explicitly comparative approach, enriched by a deep understanding of the forms of discourse abroad, would not also have great benefits. See Ramsfield, supra note 1.
7. See Meeker, supra note 2, at 917.
8. Fajans & Falk, Comments, supra note 2, at 344.
9. See Ramsfield, supra note 1, at 165-66 (discussing the need to acquaint international students with the broadly agreed-upon goals of "the academic segment of the legal discourse community"). Although I am speaking of seminar papers, these points apply equally to articles, notes, and theses.
10. See Fajans & Falk, Comments, supra note 2, at 349, n.20 (citing Edward L. Rubin, The Practice and Discourse of Legal Scholarship, 86 Mich. L. Rev. 1835, 1847-53 (1988).
11. Rubin, supra note 7, at 1847.
12. Law and the Methodology of Law, 1997 Wis. L. Rev. 521, 522 ("Most often, the work combines a critique of an existing decision with a prescription, whether general or specific, for a different approach."). Prescriptive legal scholarship is typically based on some normative foundation. See Rubin, supra note 7, at 1851-54.
13. Law and the Methodology of Law, 1997 Wis. L. Rev. 521, 522 ("Most often, the work combines a critique of an existing decision with a prescription, whether general or specific, for a different approach."). Prescriptive legal scholarship is typically based on some normative foundation. See Rubin, supra note 7, at 1851-54.
14. Some scholars define legal scholarship more broadly than Rubin. See Philip C. Kissam, The Evaluation of Legal Scholarship, 63 Wash. L. Rev. 221 (1988); Larry Alexander, What We Do and Why We Do It, 45 Stan. L. Rev. 1885, 1886-87 (1993).
15. Some scholars define legal scholarship more broadly than Rubin. See Philip C. Kissam, The Evaluation of Legal Scholarship, 63 Wash. L. Rev. 221 (1988); Larry Alexander, What We Do and Why We Do It, 45 Stan. L. Rev. 1885, 1886-87 (1993).
16. Of course, as all seminar teachers know, a paper can be prescriptive and still be bad. One of the most difficult grading quandaries is how to compare a comprehensive and well-written but purely descriptive paper to a poorly written prescriptive paper.
17. Or, as one of my colleagues, Frank Upham, suggested - good sense.
18. This explicitly prescriptive stance may be different from the role of scholars in other disciplines. See Rubin, supra note 9, at 524-41.
19. See Volokh, supra note 2, at 252 (advising students to avoid writing articles that just explain what the law is or do not give a solution to a problem).
20. 104 Pub. L. 67, 109 Stat. 737 (codified in relevant part at 15 U.S.C. § 78u-4(b)(2)).
21. Depending on one's view, originality may entail more than just novelty. For faculty, Stephen L. Carter argues that "good scholarship . . . should not only do something that is different from what past work has done, it should also make claims that are not obvious in light of past work." Academic Tenure and "White Male" Standards: Some Lessons from the Patent Law, 100 Yale L.J. 2065, 2082 (1991). I believe that the second part of Carter's test, the nonobviousness element, may be a bit tough for student seminar papers. See id. at 2085 (summarizing nonobviousness as "meaning that a scholar of ordinary skill, turning to the same problem with the same tools, would not produce essentially the same argument"). Although Volokh applies the nonobviousness element of Carter's patentability test to student articles, he appears to soften it. See Volokh, supra note 2, at 250 (providing as example of obviousness something that a lawyer would find fairly intuitive).
22. Depending on one's view, originality may entail more than just novelty. For faculty, Stephen L. Carter argues that "good scholarship . . . should not only do something that is different from what past work has done, it should also make claims that are not obvious in light of past work." Academic Tenure and "White Male" Standards: Some Lessons from the Patent Law, 100 Yale L.J. 2065, 2082 (1991). I believe that the second part of Carter's test, the nonobviousness element, may be a bit tough for student seminar papers. See id. at 2085 (summarizing nonobviousness as "meaning that a scholar of ordinary skill, turning to the same problem with the same tools, would not produce essentially the same argument"). Although Volokh applies the nonobviousness element of Carter's patentability test to student articles, he appears to soften it. See Volokh, supra note 2, at 250 (providing as example of obviousness something that a lawyer would find fairly intuitive).
23. Erwin Chemerinsky & Catherine Fisk, In Defense of the Big Tent: The Importance of Recognizing the Many Audiences for Legal Scholarship, 34 Tulsa L.J. 667, 674 (1999); see also William E. Nelson, Standards of Criticism, 60 Tex. L. Rev. 447, 449 (1982) (explaining, in context of legal history, "Scholarship demands a discovery of knowledge that no one had possessed before, not merely the communication of existing knowledge.").
24. Erwin Chemerinsky & Catherine Fisk, In Defense of the Big Tent: The Importance of Recognizing the Many Audiences for Legal Scholarship, 34 Tulsa L.J. 667, 674 (1999); see also William E. Nelson, Standards of Criticism, 60 Tex. L. Rev. 447, 449 (1982) (explaining, in context of legal history, "Scholarship demands a discovery of knowledge that no one had possessed before, not merely the communication of existing knowledge.").
25. See Volokh, supra note 2, at 249-50.
26. Games Lawyers Play: Waivers of the Automatic Stay in Bankruptcy and the Single Asset Loan Workout, 43 UCLA L. Rev. 1117, 1259-60 n.467 (1996).
27. 49 Mercer L. Rev. 741 (1998).
28. The questions are distinct. Someone who believes that law teachers should publish works that inform the general public about important legal issues might also argue that such works should not be considered for tenure and hiring purposes. See Chemerinsky & Fisk, supra note 17, at 674.
29. 91 Mich. L. Rev. 34 (1992). For responses to the article, see Symposium, Legal Education, 91 Mich. L. Rev. 1921 (1993).
30. 91 Mich. L. Rev. 34 (1992). For responses to the article, see Symposium, Legal Education, 91 Mich. L. Rev. 1921 (1993).
31. Edwards, supra note 22, at 36.
32. "Enough" is a key word here, since Edwards does not want to banish all "impractical" scholarship from law schools. See Edwards, supra note 22, at 49-50 (praising the potential contributions of nontraditional movements, and arguing that "[a] scholarly law school, ideally, should have a balance of 'practical' and 'impractical' professors"); Steven Lubet, Is Legal Theory Good for Anything? 1997 U. Ill. L. Rev. 193, 194.
33. "Enough" is a key word here, since Edwards does not want to banish all "impractical" scholarship from law schools. See Edwards, supra note 22, at 49-50 (praising the potential contributions of nontraditional movements, and arguing that "[a] scholarly law school, ideally, should have a balance of 'practical' and 'impractical' professors"); Steven Lubet, Is Legal Theory Good for Anything? 1997 U. Ill. L. Rev. 193, 194.
34. Edwards, supra note 22, at 42-43 (footnotes omitted).
35. Edwards says that critical legal studies scholars exemplify this type of impractical scholarship, because they seek to show that legal sources are indeterminate. Id. at 46-47.
36. Law and economics scholars often fall into this category, says Edwards, because they press their arguments even though "a judge or administrator cannot choose an efficient outcome that violates an applicable statute, precedent, or regulation." Id. at 47-48.
37. The classic statement on this topic is Fred Rodell's: "There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground." Goodbye to Law Reviews, 23 Va. L. Rev. 38 (1936), reprinted in Fred Rodell, Goodbye to Law Reviews - Revisited, 48 Va. L. Rev. 279 (1962).
38. The classic statement on this topic is Fred Rodell's: "There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground." Goodbye to Law Reviews, 23 Va. L. Rev. 38 (1936), reprinted in Fred Rodell, Goodbye to Law Reviews - Revisited, 48 Va. L. Rev. 279 (1962).
39. The idea for this demonstration came from Chemerinsky & Fisk, supra note 17, which encourages law teachers to write for many audiences, including the general public, and Alexander, supra note 10, which includes a helpful summary of various types of legal scholarship.
40. Obviously this essay is not intended to serve as a comprehensive overview of crack cocaine sentencing law and policy. Two useful student articles that I consulted heavily in the following summary were Andrew N. Sacher, Note, Inequities of the Drug War: Legislative Discrimination on the Cocaine Battlefield, 19 Cardozo L. Rev. 1149 (1997); David H. Angeli, Note, A "Second Look" at Crack Cocaine Sentencing Policies: One More Try for Federal Equal Protection, 34 Am. Crim. L. Rev. 1211 (1997).
41. Obviously this essay is not intended to serve as a comprehensive overview of crack cocaine sentencing law and policy. Two useful student articles that I consulted heavily in the following summary were Andrew N. Sacher, Note, Inequities of the Drug War: Legislative Discrimination on the Cocaine Battlefield, 19 Cardozo L. Rev. 1149 (1997); David H. Angeli, Note, A "Second Look" at Crack Cocaine Sentencing Policies: One More Try for Federal Equal Protection, 34 Am. Crim. L. Rev. 1211 (1997).
42. As with all controversial areas of legal scholarship, there is an enormous literature on legal storytelling. See, e.g., Symposium, Legal Storytelling, 87 Mich. L. Rev. 2073 (1989); Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 Stan. L. Rev. 807 (1993); Richard Delgado, On Telling Stories in School: A Reply to Farber and Sherry, 46 Vand. L. Rev. 665 (1993).
43. As with all controversial areas of legal scholarship, there is an enormous literature on legal storytelling. See, e.g., Symposium, Legal Storytelling, 87 Mich. L. Rev. 2073 (1989); Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 Stan. L. Rev. 807 (1993); Richard Delgado, On Telling Stories in School: A Reply to Farber and Sherry, 46 Vand. L. Rev. 665 (1993).
44. As with all controversial areas of legal scholarship, there is an enormous literature on legal storytelling. See, e.g., Symposium, Legal Storytelling, 87 Mich. L. Rev. 2073 (1989); Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 Stan. L. Rev. 807 (1993); Richard Delgado, On Telling Stories in School: A Reply to Farber and Sherry, 46 Vand. L. Rev. 665 (1993).
45. The way the teacher describes each piece of writing will often determine the answers that are placed in the chart. For example, if she tells the class that the writing makes no proposals for change, it is highly likely that the students will find that the piece is not prescriptive. During class discussion, teachers can use hypotheticals to show that certain changes in each writing might affect the class's judgments on these questions.
46. See Edward L. Rubin, What Does Prescriptive Legal Scholarship Say and Who Is Listening to It: A Response to Professor Dan-Cohen, 63 U. Colo. L. Rev. 731, 733 (1992) ("[I]n some sense, scholars really are performing for, and interacting with, each other, no matter how explicitly they address their work to public decisionmakers."); Mary I. Coombs, Outsider Scholarship; The Law Review Stories, 63 U. Colo. L. Rev. 683, 693 n.36 (1992).
47. See Edward L. Rubin, What Does Prescriptive Legal Scholarship Say and Who Is Listening to It: A Response to Professor Dan-Cohen, 63 U. Colo. L. Rev. 731, 733 (1992) ("[I]n some sense, scholars really are performing for, and interacting with, each other, no matter how explicitly they address their work to public decisionmakers."); Mary I. Coombs, Outsider Scholarship; The Law Review Stories, 63 U. Colo. L. Rev. 683, 693 n.36 (1992).
48. I always add the modifier "primarily" to avoid intense but unproductive debate over whether any piece of writing can fall completely into one category or the other.
49. For the purpose of this demonstration, we place to the side the enticing question of whether such a clear separation between "is" and "ought" is possible.
50. See Edwards, supra note 22, at 43.
51. For an excellent discussion of the purpose of a treatise, see Edward Rubin, Politics, Doctrinal Coherence, and the Art of Treatise Writing, 21 Seattle U. L. Rev. 837 (1998).
52. Edwards's views on interdisciplinary legal scholarship are obviously more sophisticated than this scholarship exercise may suggest, since he clearly envisions a robust role within the legal academy for interdisciplinary and theoretical scholarship. See Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession: A Postscript, 91 Mich. L. Rev. 2191, 2195-96 (1993); Harry T. Edwards, Another "Postscript" to "The Growing Disjunction Between Legal Education and the Legal Profession," 69 Wash. L. Rev. 561, 564-65 (1994). So, as the class discusses "what Judge Edwards might think" of a particular piece of scholarship, it is important to concede that we may be simplifying or even caricaturing his perspective.
53. Edwards's views on interdisciplinary legal scholarship are obviously more sophisticated than this scholarship exercise may suggest, since he clearly envisions a robust role within the legal academy for interdisciplinary and theoretical scholarship. See Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession: A Postscript, 91 Mich. L. Rev. 2191, 2195-96 (1993); Harry T. Edwards, Another "Postscript" to "The Growing Disjunction Between Legal Education and the Legal Profession," 69 Wash. L. Rev. 561, 564-65 (1994). So, as the class discusses "what Judge Edwards might think" of a particular piece of scholarship, it is important to concede that we may be simplifying or even caricaturing his perspective.
54. Obviously this objection would be less potent if the crack cocaine sentencing laws had not already survived virtually every legal challenge.
55. See Edwards, supra note 22, at 56.
56. Id.
57. See Chemerinsky & Fisk, supra note 17, at 674-76. I note that an op-ed piece may be an offshoot of the author's traditional academic scholarship.
58. See id. at 675 (distinguishing writings that educate about the law from writings that make an original contribution to the understanding of the law, and arguing that only the latter should count for tenure purposes).