Tuesday, January 22, 2013
Andrew Yaphe (J.D. 2010, Stanford), Taking Note of Notes: Student Legal Scholarship in Theory and Practice, 62 J. Legal Educ. 259 (2012):
In recent decades, an inconclusive (even by the standards of academia!) debate has intermittently flared up within the legal academy, as professors, judges, and practitioners have gone back and forth as to what legal scholarship ought to be. This article makes no contribution whatsoever to that debate. Instead, it looks at student legal scholarship, which has gone unnoticed while the larger debate about legal scholarship simpliciter simmered on. The article does two things, neither of which appears to have been attempted by anyone hitherto. First, it offers an extensive critique of the leading guidebooks for aspiring student authors (e.g. Eugene Volokh’s Academic Legal Writing), which are taken to task for their narrow conceptions of student scholarship. Second, it provides an empirical analysis of recent student notes, enabling the reader to get an overview of the forms that student scholarship has actually taken over the past few years.
Another significant absence is notes on tax law. Tax, while not a required course in most law schools, is still a major subject that many law students take. However, only one note in the entire sample was on tax. It may be argued that tax is a highly technical subject, and that scholarship on the topic is likely to seem arcane or parochial to law students who lack special training in the field. But the same could be said of other areas that are much better represented in the sample. Patent law, for instance, is also highly technical, but it was substantially better represented, with a total of 13 patent law notes: eight in elite reviews and five in non-elites.
See also Philip Postlewaite (Northwestern), Life After Tenure: Where Have All the Articles Gone, 48 J. Legal Educ. 558, 559 (1998) (finding that twenty senior tax professors at "elite" law schools (U.S. News Top 16) published only a total of thirty articles in elite law reviews over a ten-year period).