The Great Change: Turning Cathy into a Lawyer

Cathy...

The evil little secret about bluebooking is that the only people who really have to deal extensively with the blue book are law review and journal editors.

In real life, all that's important is being able to properly cite a few kinds of documents (basically laws and decisions) and being reasonably consistant on other things so that someone would be able to find them based on what you use.

Judges, clients and colleagues aren't looking to find minor techenical errors in footnotes; they have better things to do and, besides, they don't know the rules any better than you do and arn't about to look them up. Also, most documents (outside of academia) only cite to a very limited number of types of docs. Now if you screw up basic cites, or don't seem consistant, that looks sloppy-- but no one cares whether you abbreviate association ass'n or assoc.

Now, in acadmia, it does matter (somewhat). But the authors of academic papers don't pay any attention to their footnote formats because they know that legions of law students will spend untold amounts of time fixing the cites thinking that doing so is somehow useful.

So, again, once you can follow the basic rules apparantly included in ALWD, you have everything you will ever need to know once you are out of law school (though not nearly enough to satisfy the senior journal editors who use this as a form of hasing that improves their self importance).

Mark

I don't actually begrudge my editors. I signed up for this and am happy to do it. I just would have wanted to have been better equipped. I'm sure they would have preferred me to be as well.

My school is an academic environment, and scholarly academic work is encouraged (and at times required). Since the Bluebook is the style guide of choice for that environment, it would be nice if, curriculum-wise, the right hand and left hand would talk to each other.

To a small extent they have been: for the note (paper) we need to write for the journal we are required to use the Bluebook. If we wish to also satisfy our upper-division writing requirement with this note, our Bluebooking must be perfect. Otherwise the faculty advisor will kick it back to us. To be fair she did give us a brief tutorial on some of the areas to watch so at least we aren't completely on our own. What's frustrating though is that we spent all last year developing good ALWD habits that will just get us in trouble this time around.

How different is ALWD from Blue Book? I wasn't exposed to ALWD at my law school.

Also, outside of the silly games played at journal, no one was too anal about bluebooking. We were given bluebooks in our legal research and writing class, but no one was spending too much time worrying about the deep nuances. The attitude was pretty much, try to follow this, but we really don't care about much more than the basic rules.

And, as I say, in real life no one's checking out your compliance with 300 pages of obscure rules. I'm not sure what sort of instruction you would be looking for. It sounds like you got more instruction in ALWD (basic bluebooking) than we did in bluebooking. And all of this just isn't what the law is about. (not giving an excuse to be sloppy, just noting that there is no rational reason for being obsessive over the very minor distinctions).

Part of my cynisism here might really come from a strongly held belief that most academic legal writing is incredibly useless. Papers tend to more closely resemble annotated bibliographies than thoughtful analysis or useful thought.

This means that the papers are generally only useful to folks writing other papers on similar topics, and not to anyone else.

There's a reason why the terminal degree in law is a professional degree, not an acadmic degree-- and that's because there really isn't an acadmic field underlying law, and law students certinly arn't academics. Important advaces in the law come from cases, various policy studies- and, really, the political mileu and process- not from academia. The "academic" side of legal studies appears to me to exist entirely to fuel the institution of law reviews and journals, which serve very little useful purpose other than resume padding and providing social connections.

You've been reading Posner, haven't you...

I disagree with you though that there's no academic field underlying the law. And I know many faculty members who would be insulted by such an insinuation, and deservedly so. This is not to say there isn't tripe out there. And as JD students we are too distracted trying to become practioners to pay as much attention to the academic regimen that we should, but it's still there. And I think it would in the long run behoove us to pay attention to it.

At BU we are even required to. Exams frequently include policy questions, and class readings have at times included books with law-and-economics analyses of legal issues. Personally I love this. I love the academic angle of learning the law. I could even imagine doing this for a living, some day.

I think you slightly misread me.

I believe that there is a strong value to understanding the policies and economic tradeoffs that guide the law and allow us to evaluate legal policy. Furthermore, I strongly believe that understanding these types of analysis is key to any good legal education, is extremely useful for many kinds of legal writing and arguments, and is absolutely critical for the lawmaking process.

But most legal academic writing involves neither thoughful critical analysis of legal policies nor empirical studies that attempt to quantify law and economics type issues. Instead legal writing is usually a dry, encyclopediac recital of everything anyone has ever said on a subject, with little analysis and absolutely no real-world quantitative study. And, to make it worse, most of the things cited in legal writing (other than cases and statutes) are other law review articles that have the same failings. Hense my reference to legal scholarship as annotated bibliographies.

The fact is that nearly all of the useful academic work takes place not in law schools, but in departments of political science, economics, public policy, city planning and the like. When law school professors write this sort of academic work, they nealy always end up either partnering with someone in another department or themselves having an affiliation with another department. With all due respect to law professors, many of whom are brilliant, the other schools just have law schools beat because they understand and promote pure research, while law schools largely focus on churning out lawyers.

I don't necessarily think that this is a bad thing... The other departments exist for a reason, and they are much better equipped to handle the academic heavy work. But law students and law schools are fooling themselves if they think that they are great academic institutions. They aren't-- they are excellent trade schools for very smart people who want to engage in a very intellectually demanding trade. And so long as law professors continue to be people who have largely done graduate work only in law, this will continue to be the case (which is fine by me-- to the extent the world needs more lawyers I hope that they are smart folks with quality training).

In other words (and to cut off my ramble) understanding economic trade offs and policy issues is an important part of legal training because it makes people better lawyers, but that shouldn't be confused with the truly acadmic course of study that PhD students in Economics or in Public Policy undertake. And bear in mind, when I say this, that I am in a field of law where I spend most of my time advising policymakers (local government officials) on the policy issues implicit in their opitions-- so, more than most lawyers, I am highly aware of policy matters and why they are important-- I just don't confuse my awareness with the deep methodological approach of a true academic.

Mark

One of the biggest differences between a JD and an MA is the student thesis. The question would be whether some of the papers and notes students write could be equatable. I think they can be - they can be fine works of research - but maybe not necessarily. And many students may be able to graduate without doing any.

But from a faculty standpoint, I think a lot of them do the same kind of research that a professor in another department might do. Research and writing that adds to the overall body of knowledge.

(BTW: to answer your earlier question, the ALWD covers the major possible sources to cite, but vastly simplifies the rules applying to them. It's also a better-organized guide. Much less cryptic and scattered.)

Cathy...

I'll grant you that the top dozen or so percentile of JD student academic writing might approach the bottom half of acceptable master's thesis.

However, I don't think that the relevant comparrison with respect to academic rigor should be an MA, but a PhD. MA's typically arn't terminal degrees in academic fields, and most academics only incidentially get them when they are on their way to earning a PhD. And, certainly, those people who do only progress to the level of a MA don't stay in academia-- they typically teach at community colleges or work in industry. Quite simply, the PhD is the hallmark of the academic.

And, I think that you will unhesitatingly agree that nothing done by a JD student even remotely approaches the rigor of a dissertation. Furthermore, professors of law typically have only JD's and not a PhD, so they haven't written dissertations either.

This, plus the lack of methodology courses in law and the strong stress on nuts and bolts understanding of basic areas of law through the reading of cases, pretty well mitigates against attempts to do serious research in law school (at least in the sense that would qualify in other schools as research rather than a simple lit review). Its not the purpose of law schools (pretenses of journals not withstanding), its not something law schools do especially well, its not something that's well accomodated by the realities of the JD requirements and bar preparation, and its not something that most law students appreciate or most lawyers really feel to have missed.

Folks who really want to be academics are well advised to also seek an advanced degree in econ, policy sci, public policy, or the like. Note, however, that most joint degree program students don't go for an academic degree to complement the JD, but for a professional degree (MPH, MBA, MCP or the like). And these degrees have similar academic deficiencies to the JD.

Sorry for being severely off-thread, but...

This Bluebook things sounds like something that should be turned into a Word macro or something. I'm amazed that someone wouldn't come up with a computer program to check at least some of these things, and gouge law schools and journals a whole lot of money for it. After all, checking meaningless formatting and minutiae is what computers do best...

These sorts of programs (that go through a paper, flag any questionable cites, and suggest corrections) do exist, and all law firms have them (though I'm not sure how may people bother to use them). Law schools don't have them (or at least don't publisize having them), because (i)they want people to have to bluebook manually in classes in order to learn the skill, (ii) journals arrogantly believe that bluebooking is so critical that it can not be delgated to a machine that might make a mistake, and (iii) if the journal members relied on such mechanical conviencies then they wouldn't have much to do, and it would wreck the institutions of journals.

Mark