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Rob Natelson on Legal Scholarship
Michael Ramsey

At the Independence Institute, Rob Natelson: The Cult of Advocacy: Comments on the State of Legal Scholarship—With Examples from Professor Ablavsky’s Latest Response.  From the introduction:

This posting relates some experiences from my long career writing for legal academic journals. It was triggered by Professor Gregory Ablavsky’s response to my “Cite Check” of his article, Beyond the Indian Commerce Clause (“Beyond”), and I use features of that response for some of my examples. ...

...[t]he fundamental problem addressed here goes far beyond selective quotation. It is that much—likely most—law review writing is not scholarship at all; it is advocacy in scholarly drag.

The passionate desire to “prove the case” creates incentives to engage in selective quotation. It also fosters other questionable practices: enlisting irrelevant evidence, ignoring and manipulating relevant evidence, and substituting word play for more substantial material. More rarely, you find what appears to be outright plagiarism, as I discovered recently in a law professor’s article in American University Law Review.

The cult of advocacy encourages commission of such misdemeanors, and they are further enabled by how legal academia hires law professors, defines their jobs, and operates law journals. ...

And from later on:

Law journals’ culture of advocacy has created a practice real historians decry as “law office history”—manipulating history to make a case. Two related kinds of manipulation are (1) cherry-picking evidence and (2) roaming into irrelevant fields to find more cherries to pick.

In every legal realm other than constitutional law, it is axiomatic (aside from the rare “practical construction” case) that to discover the meaning of a document you focus on the language of the document and on statements and circumstances arising before or contemporaneously with its creation. The Constitution was ratified during the period from late 1787 through early 1790. What people did or said later usually is of little value in determining what the Constitution meant to those who adopted it, when they adopted it. But in search of cherries to pick, law-office historians commonly rely on events that could not have been factored into the ratification-era understanding because they hadn’t happened yet.


Another way of expanding the search for cherries is to rely on actions and statements by people who were operating under very different incentives than those influencing the framers and ratifiers. [Professor Ablavsky], for example, relies on several post-ratification quotations from Secretary of War Henry Knox. “Knox was an ardent proponent of national authority,” Ablavsky writes, “Frustrated by state interference under the Articles, he read the Constitution as a grant of expansive authority.”

Well, of course he did!  Almost any federal official who sees himself as trying to get his job done will “read the Constitution as a grant of expansive authority.” Of what value, however, are self-interested, post-ratification utterances for deducing the Constitution’s actual meaning?