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Vox article on sexual "assent" shows why publish or perish is a DISASTER for law

The guiding intent behind the publish or perish system is to...
Dead appetizing boistinker
  11/21/17
"There are just laws, and people have said pretty much ...
balding sienna half-breed scourge upon the earth
  11/21/17
...
purple tantric ticket booth
  11/21/17
aka progressivism. It’s the same thing driving Apple to rele...
Fiercely-loyal sapphire chapel
  11/21/17
highly cr I am a law review editor and the focus on "no...
Magenta crackhouse factory reset button
  11/21/17
"Going to need to reject this article unless zhe can pr...
balding sienna half-breed scourge upon the earth
  11/21/17
What has happened since the 1960s—that watershed decade in m...
Mildly autistic point codepig
  11/21/17
The most useful class I took in LS (no contest, used THIS MO...
balding sienna half-breed scourge upon the earth
  11/21/17
...
Mildly autistic point codepig
  11/21/17
(guy who has yet to litigate his first TRULY PRESTIGIOUS rul...
purple tantric ticket booth
  11/21/17
Shelly's case! Rule in Dumpor's Case! [--I did some sort of ...
balding sienna half-breed scourge upon the earth
  11/21/17
penne vodka
Mildly autistic point codepig
  11/21/17
Of course LR articles are sps for a number of reasons, but m...
puce parlor kitty cat
  11/21/17
It varies. Sure, you have tenure, but law schools have crea...
purple tantric ticket booth
  11/21/17
...
Cerebral violent hell
  11/21/17
I guess a corollary to this is that the increasing # of seco...
Dead appetizing boistinker
  11/21/17
CR. Everybody is playing a game and the result is shit ar...
purple tantric ticket booth
  11/21/17


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Date: November 21st, 2017 8:34 AM
Author: Dead appetizing boistinker

The guiding intent behind the publish or perish system is to encourage scholars to constantly push the boundaries of scientific knowledge. You have to invent or discover something new, because if it isn't new, it won't be published.

That system has been ported over as-is into the legal field. But in the legal field there is no "scientific knowledge." There are just laws, and people have said pretty much everything that needs to be said about most of them. Yet that demand to publish or perish, and find new fields of inquiry, is just as strong. So professors have no choice but to resort to making things up. You'd never get tenure at Indiana law by writing some dry 50-state comparison of sexual harassment jurisprudence, because it's not NEW. Instead you have to invent some insane system which allows 21 year olds to file petitions for courts to second-guess their previous decisions to consent to sex.

Note that this rant is conceptually distinct from the standard bitching that "law reviews don't create useful articles" although there is certainly some overlap between the two.

(http://www.autoadmit.com/thread.php?thread_id=3804492&forum_id=2#34738052)



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Date: November 21st, 2017 8:40 AM
Author: balding sienna half-breed scourge upon the earth

"There are just laws, and people have said pretty much everything that needs to be said about most of them"

I take issue with the latter claim. As an empirical matter, there are many important laws on which there has been little to no scholarship. The reason (as you say) is that 'legal scholars' would rather make sweeping normative claims in the guise of legal reasoning - the ideologues who run the HLR etc. eat that stuff up; it's easier to produce; and you've every incentive to create it. Getting in the weeds and providing a purely descriptive explication of various tough fields of law takes skill and brains -- since those are in short supply, and those without them MUST be promoted, you instead get these bizarre policy proposal pieces (which often misstate basic facts about current law).

My proposal to fix this system would be to cut all state fundings and tenure and make having a seat at university contingent on teaching performance (objectively measured) or else receiving grant funding for your scholarship. Lawyers should be professionals.

(http://www.autoadmit.com/thread.php?thread_id=3804492&forum_id=2#34738083)



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Date: November 21st, 2017 8:45 AM
Author: purple tantric ticket booth



(http://www.autoadmit.com/thread.php?thread_id=3804492&forum_id=2#34738093)



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Date: November 21st, 2017 8:41 AM
Author: Fiercely-loyal sapphire chapel

aka progressivism. It’s the same thing driving Apple to release shitty new operating systems every 12 months

(http://www.autoadmit.com/thread.php?thread_id=3804492&forum_id=2#34738085)



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Date: November 21st, 2017 8:48 AM
Author: Magenta crackhouse factory reset button

highly cr I am a law review editor and the focus on "novel" theses is pretty unintuitive

(http://www.autoadmit.com/thread.php?thread_id=3804492&forum_id=2#34738105)



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Date: November 21st, 2017 8:59 AM
Author: balding sienna half-breed scourge upon the earth

"Going to need to reject this article unless zhe can problematize the thesis by about 26%." [lead shitlib]

"Agreed." [six other shitlibs]

"But what does my POCKET CONSTITUTION say?" [token FedSoc weirdo who gunned his way to articles editor]

(http://www.autoadmit.com/thread.php?thread_id=3804492&forum_id=2#34738154)



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Date: November 21st, 2017 8:52 AM
Author: Mildly autistic point codepig

What has happened since the 1960s—that watershed decade in modern American history—is the growing apart, especially but not only at the elite law schools, of the lawyer and the judge on the one hand and the law professor on the other hand. Law professors used to identify primarily with the legal profession and secondarily with the university. The sequence has been reversed. Law professors in that earlier era were hired after a few years of practice, on the basis of evidence (heavily weighted by performance as a law student) of possessing superlative skills of legal analysis. A law professor was expected to be a superb lawyer and to see his primary role as instructing generations of law students so that they would become good, and some of them superb, lawyers—instructing them by precept but also by example, by being a role model; and the role was that of a practicing lawyer. The scholarship that law professors did tended to be either pedagogical, as in the editing of casebooks, or to be of service to the practicing bar and the judiciary, as in the writing of legal treatises, articles on points of law, and contributions to legal reform, exemplified by the American Law Institute’s restatements of the law.

By the late 1960s this model was almost a century old and ripe for challenge. The challenges came from two directions, which though opposed to each other turned out to be complementary in their effect on the traditional model. One, the direction from social science, and in particular from economics, complained because the conventional model did not enable its practitioners to articulate concrete social goals for law and to test legal doctrines against those goals. Conventional analysis could not tell judges and legislators when, for example, the rule of tort liability should be negligence and when strict liability; or how to decide when a land use should be deemed a nuisance, when a preliminary injunction should be granted and when denied, when solicitations by police to commit a crime should be deemed entrapment, whether a rescuer of a lost item should have a legal claim to the reward posted by the owner though unaware of the offer of the reward, or whether spendthrift trusts should be allowed because they reduce, or forbidden because they increase, the likelihood of bankruptcy.

The second challenge, the challenge inspired by the left-wing politics that helped to define the late 1960s and early 1970s, complained that the conventional approach was a mask for decisions reached on base political grounds. The “crits” resurrected the legal realism of the 1920s and 1930s in a more strident form and rejected the legal-process school of the 1950s that had sought to reconcile legal realism with traditional theories of law.

These challenges to the conventional model of the law professor’s vocation so far succeeded as to bring about a fundamental change in the character of legal teaching and scholarship and the method of recruitment into academic law. From the challenge mounted by social science came a novel emphasis on basing legal scholarship on the insights of other fields, such as economics, philosophy, and history, and from the challenge mounted by the Left came a reinforcing skepticism about the capacity of conventional legal analysis to yield intellectually cogent answers to legal questions. These ideologically opposed challenges complemented each other by agreeing that the traditional model was narrow and stale.

The model was largely buried in these twin avalanches, especially in the elite law schools. The older generation, the generation committed to the conventional model, responded in part with bitterness and in part with silence. Not all, of course, and signally not Bernie Meltzer, who carried on imperturbably and into extreme old age in the style of the famous “old school” professors, such as James Casner, Barton Leach, and Robert Braucher at Harvard, and of Harvard judges such as Felix Frankfurter and Learned Hand (Hand of the Bill of Right lectures, in particular). Meltzer was in fact a favorite of Frankfurter, who taught Meltzer at Harvard (where Meltzer took an LL.M., after graduating first in his class from the University of Chicago Law School.) Meltzer’s skillful cross-examinations at Nuremberg marked him as a master of practical lawyering, and he continued to demonstrate that mastery throughout his academic career.

[. . . ]

The loss is not only in the kind of teaching that Meltzer exemplified, but also in his style of scholarship. In a system of case law, which is the dominant American system of law even in primarily statutory fields such as labor, which was Meltzer’s principal field of teaching and scholarship, the principles and rules of law are not found in authoritative texts—in legal codes—but instead have to be inferred from statutory and constitutional texts, yes, but even more from judicial opinions, whether they are common law opinions or statutory or constitutional glosses. Inferred law is “unwritten” in the significant sense that it is constructed by the judges and lawyers from scattered, sometimes inconsistent, and often ambiguous, incomplete, or poorly informed materials, mainly, as I said, judicial opinions. The messy work product of the judges and legislators requires a good deal of tidying up, of synthesis, analysis, restatement, and critique. These are intellectually demanding tasks, requiring vast knowledge and the ability (not only brains and knowledge and judgment, but also Sitzfleisch) to organize dispersed, fragmentary, prolix, and rebarbative materials. These are tasks that lack the theoretical breadth or ambition of scholarship in more typically academic fields. Yet they are of inestimable importance to the legal system and of greater social value than much esoteric interdisciplinary legal scholarship.

Because of the enormous financial rewards that today await the successful practitioner, and the alienation of the academic legal profession from the practice of law, superlawyers of the caliber of Bernie Meltzer will no longer dominate law school faculties. He was almost the last survivor of an era. With his example before us, we can reflect on what has been lost and consider how some of it might be regained.

(http://www.autoadmit.com/thread.php?thread_id=3804492&forum_id=2#34738128)



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Date: November 21st, 2017 8:55 AM
Author: balding sienna half-breed scourge upon the earth

The most useful class I took in LS (no contest, used THIS MORNING already) was from a renowned practicing judge on how to read statues and contracts.

(http://www.autoadmit.com/thread.php?thread_id=3804492&forum_id=2#34738143)



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Date: November 21st, 2017 8:57 AM
Author: Mildly autistic point codepig



(http://www.autoadmit.com/thread.php?thread_id=3804492&forum_id=2#34738151)



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Date: November 21st, 2017 9:03 AM
Author: purple tantric ticket booth

(guy who has yet to litigate his first TRULY PRESTIGIOUS rule against perpetuities case)

(http://www.autoadmit.com/thread.php?thread_id=3804492&forum_id=2#34738182)



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Date: November 21st, 2017 9:06 AM
Author: balding sienna half-breed scourge upon the earth

Shelly's case! Rule in Dumpor's Case! [--I did some sort of mnemonic-system memorization of all the property-law rules so if you mention that shit even to this day I get a flood of stupid associations].

Re: RAP -- probably won't need to dust off those rules until the scifi future when novel legal issues arise from TIME TRAVELING PREGNANT GRANDMOTHERS.

(http://www.autoadmit.com/thread.php?thread_id=3804492&forum_id=2#34738198)



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Date: November 21st, 2017 9:06 AM
Author: Mildly autistic point codepig

penne vodka

(http://www.autoadmit.com/thread.php?thread_id=3804492&forum_id=2#34738201)



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Date: November 21st, 2017 8:59 AM
Author: puce parlor kitty cat

Of course LR articles are sps for a number of reasons, but my impression is that "publish or perish" isn't really as bad in law schools. Isn't the standard for most places an article a year for the first 4 years and then you're tenured?



(http://www.autoadmit.com/thread.php?thread_id=3804492&forum_id=2#34738155)



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Date: November 21st, 2017 9:02 AM
Author: purple tantric ticket booth

It varies. Sure, you have tenure, but law schools have creative ways of coercing behavior from professors. Mine liked to give professors who were "under-performing" classes that met at 8 AM, Monday-Thursday. It's easier to churn out some shit article and get it published in some secondary journal than to get up that early four days a week, especially because you can have a student essentially write it, put your name on it, then thank them in a footnote for "research assistance."

(http://www.autoadmit.com/thread.php?thread_id=3804492&forum_id=2#34738176)



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Date: November 21st, 2017 9:04 AM
Author: Cerebral violent hell



(http://www.autoadmit.com/thread.php?thread_id=3804492&forum_id=2#34738186)



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Date: November 21st, 2017 9:07 AM
Author: Dead appetizing boistinker

I guess a corollary to this is that the increasing # of secondary journals (because everyone needs to have that resume line!) means that papers that would've been flat rejected 30 years ago now have somewhere to get published.

(http://www.autoadmit.com/thread.php?thread_id=3804492&forum_id=2#34738204)



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Date: November 21st, 2017 10:16 AM
Author: purple tantric ticket booth

CR.

Everybody is playing a game and the result is shit articles.

The deans have no interest in actually reading the articles, they just want to be able to say "our faculty has published x pieces of scholarship last year" and not have a SCHOLARSHIP GAP with PEER INSTITUTIONS.

The professors sometimes have something to say, but most of the time are publishing shit strictly to either get tenure, mollify their deans, for their own reputational reasons, or whatever. Nobody is going to really read the article and other professors aren't going to call out shit product since they all know each other and they're all playing the same game anyway.

The students who publish this shit don't really care and don't even have the context to tell a good article from a bad one. If they bluebook it properly and slap it into a journal that nobody will read, they've done their job. They have a resume line and, of course, no legal employer is actually going to read a journal as part of evaluating a candidate, they'll just look at the school name and see whether it's a primary or secondary.

So everybody involved in this miserable cycle just has an incentive to publish whatever with no real quality control.



(http://www.autoadmit.com/thread.php?thread_id=3804492&forum_id=2#34738751)