From Value-Neutrality to Self-Reference

Scott Greenfield and Jeff Harrison offer a critical take on the 72,000 law review articles generated over the past 10 years. Greenfield says that “it’s a shame to waste all these fine minds on writing articles that no one will read, [especially] the ‘irreducibly, immitigably, irrelevant’ articles.”

I’m open to critiques of information overload, but I also think a post like that can’t just be based on sheer volume alone. Give some examples of terrible law review articles!

On some level, the articles explosion is driven by the USNWR rankings rat race. The idea is to be influential in your field, and the way to do that is to get cited in other articles. This risks becoming an entirely internal, self-referential assessment of merit. . . . Luhmann might find it a fascinating example of an autopoetic system:

Niklas Luhmann’s autopoetic systems are self-governing spheres of interaction and “autonomous in the sense that external impacts are selected by the system or transformed by the field itself” . . . . Modern society is characterised by highly specialised, self-sustaining and prescriptive systems which serve identifiable social functions. For Luhmann, society is nothing but reflexive, self-recursive communication. The social still constitutes a whole, but one without centre or unity, where systems sit side-by-side, differentiated by function and stabilised communications.

Are there ways of breaking out of self-reference to do a broader quality assessment? Well, some professors in Canada just started a Facebook profile that helped scuttle (what I think is a) terrible proposed law there. That’s a real service to the community. But note how ideological neutrality in the field is going to slow down recognition of that achievement….some people are going to think it was a great law, and they are going to be unwilling to acknowledge the significance of this contribution. Perhaps the same could be said of my colleague David Feige’s superb book Indefensible….some are going to disagree with his characterization of the criminal justice system, and discount his work as a result. Our vocation is science, not politics, they will insist.

So ideological disputes lead us to fall back on neutral “citation counts” as a way of assessing quality. We end up mistaking scientific criteria of influence for social relevance or accuracy (justice or truth). The name of the game becomes trying to write an article about a relatively ubiquitous concept that everyone is going to want to refer to in future articles, so they refer to you. In some ways, that is precisely the wrong incentive to create–it really discourages people with very different perspectives from critiquing the mainstream, because they won’t get cited. They’ll be seen as too far outside it.

[Concluding, unscientific and possibly self-undermining postscript: I’ve been recently reminded of Luhmann’s work by the type of jurisprudential article that I suspect many critics of legal academe would be happy to deem “Exhibit I” for irrelevance.]