Wednesday, November 01, 2017

Writing About Law in an Avalanche: What is a Scholar to Do?

By Eric Segall

How people research and write about law has changed dramatically during the course of my academic career. Twenty years ago, although there was an abundance of relevant scholarship on most hard legal questions, there were reasonable ways of dealing with the quantity of relevant work. Today, there is virtually no way to keep up with the avalanche of high-level scholarly output devoted to most legal topics and current cases.

In 1997, I published a law review article on originalism examining the first article ever found that used the phrase "living Constitution." That 1900 essay in the Harvard Law Review examined how judges should apply a fixed Constitution to changing circumstances. I argued that this author discussed that question as well as anyone since, and that there really wasn't much more to say about the originalism debate (okay I was wrong). I found that piece by physically looking through all the paper law reviews that were in existence from the late nineteenth century to 1905. There was no computer database at that time up to the task.

My research for that piece (after I found the key article) included reading law review articles, political science essays, and a few books. I spent about a year researching and writing. The relevant sources did not change much during that year. Although there was a lot of literature on the topic, it was not hard to identify the most influential and important sources and scholars. The task was daunting but realistically containable.

I just finished the first draft of my book "Originalism as Faith." To research this book, I had to cull through law review articles, books, essay, op-eds, blogs, and non-legal publications like SLATE, the Atlantic, Vox, and the National Review. I read important pieces in the Volokh Conspiracy, LawFare, Balkinazation, SCOTUSBlog, and a number of other on-line legal fora before even starting the writing process, and I have had to keep up with those sources throughout the process.

Moreover, academics now routinely submit amicus briefs on high-profile issues that contain substantive arguments that need to be addressed if one is writing in that area. For example, if you plan on writing about the intersection of first amendment law and non-discrimination statutes (the topic of this term's Masterpiece Cakeshop case), you'd best set aside substantial time on the various amicus briefs submitted by, among many others, constitutional law Hall of Famers Doug Laycock, Eugene Volokh, Ira Lupu, Steve Shriffin (with Seana Shiffrin and Mike Dorf), and Michael McConnell, advocating numerous different perspectives on the appropriate law governing the case.

The literature changes every day. Last week the second most cited legal scholar of this generation (Cass Sunstein) posted a draft essay on SSRN called "Originalism" discussing at length a draft essay by leading originalists Randy Barnett and Evan Bernick, that is also posted on SSRN. Neither piece has yet been accepted for publication, and both are works in progress. Larry Solum's book length treatment of originalism is also an evolving treatment of the issue posted on his blog and SSRN.

I read Barnett's and Bernick's essay months ago and wrote a response in my draft book. A few weeks ago they put a new version on SSRN, and my guess is they will update it again to respond to Sunstein's analysis which may cause Sunstein to post a new draft of his version after that. This is all before either piece has been published. Back in the old days of 1997, there were only completed books, articles, and maybe a handful (at most) of relevant non-law review treatments. The ability of scholars to post draft pieces for world-wide view has dramatically altered the legal research landscape.

The other major change for legal scholars is the all-too-real news cycle problem, which is a consideration that barely existed twenty years ago. To be heard over the din today, not only does one need to be smart at both substance and marketing, but one needs to be fast, very very fast. That skill is quite different than being comprehensive, careful, and thoughtful. It used to be that one had at least a year from a the date of a major Supreme Court case to contribute to the scholarly discussion of that case. The only real place to put the case in perspective was the law reviews. Very few professors wrote op-eds or magazine pieces. Today, a week is probably too long.

So is all of this good or bad, and what is a scholar to do? I have no strong opinion on the first question. I am pretty sure that with all the increased avenues of scholarship comes a greater democratization of the legal field. Folks like me at non-elite law schools can get our voices heard and scholarship read without relying exclusively on students at the top law reviews to take a chance on us. On the other hand, with the news cycle pressure taking up significant time, it is quite possible the overall quality of legal scholarship has deteriorated.

As to the second question, my experience over the last few years in the areas of originalism, standing, constitutional interpretation generally, free exercise of religion, second amendment, and free speech tells me that trying to comprehensively address the existing literature on those subjects in advance of writing on them is a fool's errand. I think the best one can do is try to identify a set of sources that represent thoughtful and diverse components of the larger debates and hope that does the trick. There really is no other way.

Last week I sent out the first draft of my originalism book to half-a-dozen academic friends. By the time I receive their comments and critiques, there will be a plethora of new contributions to the topic. By the time I address those, there will be many more. What is a scholar to do?