Friday’s Scholarship About Legal Scholarship

After I asked about interest in occasional posts listing recent scholarship about legal scholarship, one reader suggested that we save up citations, posting, say, on the first Friday of each month. That seems like a good idea, but I’m going to experiment with posting weekly instead of monthly. We’ll see how it goes.

If you come across an interesting piece about legal scholarship (publishing patterns, advice for scholars, etc.), please send a note to legalscholarshipblog [at]

This week’s scholarship about legal scholarship:

Schlag, Pierre, The Faculty Workshop (June 1, 2011). U of Colorado Law Legal Studies Research Paper No. 11-12. Available at SSRN:

This essay explores the ubiquitous law school institution, “The Faculty Workshop,” as an entrée into and manifestation of contemporary American legal thought. The Faculty Workshop is examined both as a regulator and expression of legal thought – at once governance system and symptom. We close by discussing “Stage 4.”

Stockmeyer, Norman Otto, Do You SSRN? (March 18, 2011). The Scrivener, p. 4, Winter 2011 (2 pp.). Available at SSRN:

Articles published in law reviews and major legal journals are retrievable on line through searchable subscription databases. But articles of general interest in “second tier” legal periodicals would be lost if not for Google-searchable open-access repositories such as the Social Science Research Network (SSRN).This article describes SSRN’s various archiving and research functions. It explains step-by-step how to abstract and upload working papers and published articles. The primary emphasis is on how legal authors can use SSRN as a digital archive of their publications. “Green publishing” – using SSRN’s abstracting eJournals to disseminate and self-publish articles in electronic form – is also described. A bibliography of source materials is provided.

Ginsburg, Tom and Miles, Thomas J., Empiricism and the Rising Incidence of Coauthorship in Law (February 15, 2011). U of Chicago Law & Economics, Olin Working Paper No. 545. Available at SSRN:

The recent growth of empirical scholarship in law, which some have termed “empirical legal studies,” has received much attention. A less noticed implication of this trend is its potential impact on the manner of scholarly production in legal academia. A common prediction is that academic collaboration rises with scholarly specialization. As the complexity of a field grows, more and more diverse types of human capital are needed to make a contribution. This paper presents two tests of whether empiricism has spurred more co-authorship in law. First, the paper shows that the fraction of articles in the top fifteen law reviews that were empirical or co-authored (or both) trended upwards between 2000 and 2010. The increase in empirical articles accounted for a substantial share of the growth in co-authored articles, and the correlation between co-authorship and empiricism persisted after controlling for numerous other influences. Second, the paper examines the articles published since 1989 in two prominent, faculty-edited journals specializing in law & economics: the Journal of Legal Studies and the Journal of Law, Economics & Organization. Co-authored articles were far more common in these journals than in the general-interest, student-edited law reviews – a pattern which itself is consistent with the specialization hypothesis. The share of articles without empirical analysis or formal models in these journals plummeted over this period, while co-authorship rose sharply. These results support the view that specialization, and specifically the growth of empirical scholarship, has contributed to the trend of co-authorship in legal academia.

Cunningham, Lawrence A., Digital Evolution in Law School Course Books: Trade-Offs, Opportunities, and Vigilance (2011). THE DIGITAL PATH OF THE LAW, Edward Rubin, ed., Cambridge University Press, 2011-2012; GWU Legal Studies Research Paper No. 546; GWU Law School Public Law Research Paper No. 546. Available at SSRN:

As we all migrate to the digital world, imagine the future of the law school course book by reflecting on its history, purposes, and promulgation over the seven generations since C.C. Langdell initiated our current mode of legal education in 1870. Some see the future of digital course books as a radical shift, akin to the original revolution of Langdell’s Contracts casebook. Others dismiss it as a simple marketing maneuver, the way post-Langdell addition of notes, questions or problems might be regarded. This look back at casebook history suggests that digital course books are more likely to be something in between, an incremental but meaningful evolution.

Schwartz, David L. and Petherbridge, Lee, Legal Scholarship and the United States Court of Appeals for the Federal Circuit: An Empirical Study of a National Circuit (December 14, 2010). Loyola-LA Legal Studies Paper No. 2011-07. Available at SSRN:

It is conventional wisdom that the United States Court of Appeals for the Federal Circuit, a court whose jurisdiction is defined by subject matter rather than by geography, is less likely than other circuit courts of appeals to use legal scholarship in its decision-making. This common belief is regularly used to substantiate a well-worn criticism of the Federal Circuit specifically, and of national courts generally; namely, that they are substantially more insular and somehow less intellectually curious than the regional circuit courts of appeals. We were therefore very surprised to find how little empirical support the conventional wisdom finds in legal literature. A review of the existing literature reveals that relatively little is known about the use of legal scholarship by the Federal Circuit – and by analogy courts whose jurisdiction is defined by subject matter rather than geography – and perhaps even less is known about how the Federal Circuit’s use of legal scholarship compares to that of the regional circuits.The study reported in this Article contributes new and original information and analysis. It empirically compares the Federal Circuit’s use of legal scholarship with that of the regional circuit courts of appeals. Perhaps the most significant finding is that the Federal Circuit’s use of legal scholarship appears quite similar to that of the regional circuits, suggesting that the court is not the outlier that many presume. This finding places the conventional wisdom into serious doubt and has obvious implications for the evaluation of other proposals for subject matter-bounded courts.


The following items are blog posts rather than more formal scholarship, but I include them because they address important points for scholars: the value of using reference librarians to help with your research and the need to read and think about publication agreements.

Peter Conti-Brown, We Have Winners! – and a Paean to Law Librarians, The Conglomerate, May 26, 2011.

“I cannot restrain myself from praising our extraordinary librarians at Stanford Law School. I have a bucketful of examples of their extraordinary sleuthing (the Martin speech is only the latest), one of which includes going through repeated FOIA requests and appeals, losing each one, and then still securing the key document from an 80 year old researcher who had it in his own files in some barn in Vermont, or something like that. I only know SLS, so if you have other examples of librarian sleuthing that made your research possible, I’d love to hear them, as I think they are the sometimes too-well-kept secret of the academy. After all, an eminent legal authority — I think it was Ronald Coase, but it may have been Moses himself — once said that every great scholar needs a good tailor, a good priest, and a good librarian. I have no experience with the first two, but can vouch emphatically for the third.

Jeffrey Pomerantz, My Copyfight, PomeRantz, June 14, 2011.

Librarian describes his unsuccessful efforts to get a publisher to alter its standard publication agreemen (it had an 18-month moratorium before the author could post the article). He and his coauthor withdrew the article from publication and posted it themselves.