On Writing from the Cheap Seats
If a law professor from a lower ranked school writes something, was it actually written? If an article is not published in a top journal, was it actually published? On optimistic days, I think the answers to these questions are obvious: if it is on Hein, Westlaw, and Lexis, an academic contribution has been made that will be seen by others who work in the same field(s). But I am not optimistic on all days. On those other days, it can feel as if all that really matters is if the idea is expressed, or re-expressed, by an elite scholar at a school that “matters” among academics.
As I have observed before, one of the most significant changes in how my time is spent pre- and post- tenure is the amount of time spent reading other peoples’ works. Whether because of somewhat self-imposed, somewhat a sense of professional responsibility, between service and mentoring obligations, I spend a lot of time reading scholarly drafts. My current annoyance involves articles that proclaim their own novelty, confidently asserting that their argument / analysis has never been done before, seemingly blind to the ways in which the supposedly novel article either is building off of or even simply repeating points that others have made before.
The attractiveness of proclaiming something is novel, even when it is not, is clear—among other things it can help with placement—but it seems to be based on what is a rare form of insight, the sort that just bursts into the mind free of antecedents. While such novel arguments do exist and I think any academic can think of works that sort of burst onto the scene with their brilliance, most scholarly insight is based on a much more plodding, workaday form of intelligence. Works that fail to acknowledge the works and scholars that helped lay the path, seen from this perspective, are in some ways both dishonest and hopelessly arrogant. Put differently, part of me hopes that the short term gains of proclaimed novelty are not worth their rewards over a long career.
A wise senior scholar at one point gave me two somewhat contradictory pieces of advice. First, that no writing will be perfect and successful academics know that letting a work out in public is one of the most important things you will do and you should set deadlines with yourself so you know when you have done enough. Second, that being an academic is a marathon not a sprint. It can often be hard to remember this last point. Finishing the next article—the one that will finally get well placed and that will get a larger audience (or so you hope)—can feel like a sprint. And it is inevitable given the vast amount of research that has come out that you will overlook a piece that is good for your topic. And you should be forgiven for such oversight. Of course, if it was your article that was either overlooked or glossed over by a more successful academic, it hurts.
One of the more entertaining law professors out there (or at least among my facebook friends / twitter feed people) is Brian Frye, who among other things really likes plagiarism or at least takes a contrarian perspective on whether plagiarism is bad (we are not friends in a meaningful sense so I am not sure how seriously I am meant to take the positions he takes over social media). And morally there may be some truth to that position. But on the level of feelings, being ignored or being glossed over just feels bad. When someone is making an argument that is similar to something you wrote years ago and they have reason to know about your work but still claim to be making a novel contribution without acknowledging your work, it, to put it mildly, can be annoying.
Alice Ristroph’s new book review, Read Thyself, forthcoming in Alabama Law Review, does a better job than I can, and with much more grace than I have, expressing the frustrations of seeing one’s work glossed over without adequate acknowledgment. Ristroph takes the high road. Recognizing that “many in the legal academy can hear an argument spoken from Stanford Law School or Harvard University Press that they cannot hear when it is articulated from Brooklyn Law or the Alabama Law Review,” Ristroph articulates the hope that “desire for glory” and “academic vanities” would not undermine shared ideals in a higher goal connected with scholarly work (17). And Ristroph is right, I think, to stop short of labeling the work she is critiquing as plagiarism. Such a charge is explosive and should not be leveled lightly; even when such an accusation is accurate, it can be misused by those in power. But throughout Ristroph’s review there is also the awareness and a subtle anxiety related to the fact that the academic game is different for those of us not designated as elite stars and not writing as part of the in circle.
The split between insiders and outsiders can be seen in poverty law scholarship over the past decade. Academics at Yale, Harvard, and other elite schools have woken up to the fact that inequality is a problem, that a system built on myths surrounding merit is a problem, and that the law may contribute to both inequality and subordination. Much of the writing produced by such elite scholars is brilliant, insightful, and welcome. But it also can at times be painfully unaware of scholarship—equally brilliant and insightful—produced by non-elite academics. The footnotes are filled with citations to friends and colleagues at similarly elite schools but the contributions of academics who have been plowing the fields through a lifetime of contributions to our understanding of inequality from the cheap seats are unacknowledged and uncited. Part of me wants to just celebrate and revel in the moment. To take the high road. It is great that elites have discovered inequality and only the slightly petty me wished their focus was a bit more targeted towards poverty. But part of me feels bad. Not for my work being unacknowledged—my work in poverty is all of the place and not of such depth in any one area that I have reason for angst (my work on Navajo economic development and to a lesser extent my small carved out space in property theory on the other hand might cause angst and annoyance at times)—but for the work of my friends and fellow travelers in the field. This isn’t an example of false modesty. I see my work in poverty law largely as elevating the work of others and creating a bit more space for poverty scholarship (written by others) to flourish.
One of the biggest challenges when it comes to our work selves, esp. post tenure, is striking the right balance between ambition and humanity. I’m at the point of giving up on Twitter because the medium seems to push the balance so far towards ambition that humanity gets lost. But in our scholarship, one has to hope that what ultimately matters is being decent… to fellow academics, to past writers, and to an existing scholarly field. Please excuse me if this comes off as just too annoyed. If this rant does nothing other than convince people to read Ristroph’s review with some attention to one’s relative place in the academy, it will have succeeded.
But let me end with a huge thank you and acknowledgment of some of those whose guidance, past works, and/or humanity have been invaluable to me and to my own (not very novel) writing. Rob Williams, Jr., Jim Anaya, Peter Iverson, Ray Austin, Kristen Carpenter, Angela Riley, Matthew Fletcher, Rebecca Tsosie, Lee Fennell, Andrew Hammond, Peter Edelman, David Super, Daniel Hatcher, Audrey McFarlane, Francine Lipman, Susan Bennett, Claudio Grossman, Herman Schwartz, Kaaryn Gustafson, Joe Singer, Carol Rose, Duncan Kennedy, R.M. Unger, Marsha Lee Weisiger, Matt Gallaway, Andrew Needham, Juliet Brodie, Claire Pastore, Jeff Selbin, Marie Failinger, Sarah Krakoff, Robert Miller, Pat Hugg, Mary Algero, John Lovett, Jack Knight, Shailaja Fennell, etc, etc. [NOTE I’m going to stop making this point, but I have to add that shortly after posting I experienced the downside of any such list–it risks being seen as a slight for missing people–so I’m going to add three that should have been on the list the first time, Lisa Pruitt, Bruce Haynes, and Jessica Shoemaker but going to restrain myself from adding others.]
Poverty Law 