It seems like every law blogger is offering his or her own (although it’s usually “his”) list of the “hierarchy of legal scholarship”. I think there’s quite a lot to be said for Eric Muller’s Hierarchy of Legal Scholarship, but it’s just too darn complicated.
So here’s mine:
0 – Lousy articles which get the facts wrong
1 – Lousy articles
2 – Good articles
3 – Articles which would have been really good except they go on too long
4 – Really good articles (bonus for a snappy title)
5 – Supremely good articles (very rare)
Not only is this much simpler, but I expect it will command wide agreement.
[Original draft 9/23/2006. In preparation for my blog redesign, I found draft blog posts that somehow never made it to publication. This is one of them.]
2010: A forerunner of Jotwell? The serious posts on this subject include J.B. Ruhl’s hierarchy of legal scholarship and Larry Solum’s critique and Jim Chen’s response.
If you’re going to give points for a snappy title, I think you should also take points off for nearly every title that “takes [something or other] seriously”, or that “does something or other in the shadow of some other thing”, or has “another view of some cathedral-like object” unless it’s both extremely clever and deeply tied to the subject of the paper. Otherwise, it’s a lazy and annoying cliche that deserves a spanking, not encouragement. (I’m sure there are other examples, too, but these are the ones that spring to mind most readily.
Mr. Muller’s ranking system demonstrates just how useless modern “scholarship” has become. It’s a great big circle jerk for citations with no relevance whatsoever to contemporary legal issues. Any title with “Review of …… [Academic I’d like to suck up to].” or “Response to …..” or any similar language is guaranteed to be horrible, as it is just a vehicle to create citations to the prior author. Even worse are titles that begin “My Paper/Thesis ….. X years later” because then you know you are reading the work of someone so useless and friendless that he cannot find anyone to write a review of his work and he has to inflate his citations himself.
True “legal” scholarship, as opposed to “academic” trollop is cited by Courts, and occasionally incorporated into a bill or at least referenced in an informal legal arguments – i.e. water cooler discussions . Therefore the proper way to rate legal scholarship is as follows:
1. Nobody has read it except people that have to.
2. People who want to suck up to you have read it.
3. Someone who does not want or need to suck up to you has read it, when they had other reading material available and were not stuck in an airport and that was the only reading material available.
4. Someone has read it and referenced, quoted or recommended it.
5. Multiple people have actually discussed it.
6. Multiple people have discussed it because they find it interesting, not because they are involved with the AALS process somehow, or need to suck up.
7. The Paper or ideas therein actually change peoples perceptions or way of thinking.
8. The Paper starts a movement of some type, wherein people begin to advocate the ideas in the paper.
9. The Paper is cited by a court which has adopted the ideas in the paper because it is the most persuasive argument in support of that idea, or it is cited by a legislator for the same reason.
10. The Paper is cited in an significant opinion, or the congressional record/legislative equivalent, which changes significant legal precedent. (i.e. “Members of this Court and academics have suggested that we revise our doctrine to reflect more accurately the original understanding of the Clause. See, e.g., … A. Amar, The Constitution and Criminal Procedure 125-131 (1997); Friedman, Confrontation: The Search for Basic Principles, 86 Geo. L.J. 1011 (1998).” Crawford v. Washington, 541 U.S. 36 (2004))