Schultz on Acts of Truth: Emotions and the Validation of Legal Knowledge

Thomas Schultz, King's College London, University of Geneva, has published Acts of Truth: Emotions and the Validation of Legal Knowledge. Here is the abstract.

Legal scholarship presents itself as an exercise in reason: the scholar elucidates, weighs the sources, follows the argument, emotions left at the door. This Article argues that the pose is false, and consequentially so. Emotions shape not only the margins of scholarship-the topics we choose, the tone of our debates, the schools we form-but they also reach all the way into what we take to be legally valid and true. Building on Pierre Schlag's account of the aesthetics of law and on work in psychology and the philosophy of mind on the role of emotion in cognition, the Article reframes the validation of juristic truth as the product of two emotionally laden processes: epistemic decision-making, the "acts of truth" by which a proposition is accepted as valid, and epistemic negotiation, the agreements through which a community settles what counts as known. It then identifies emotions likely at work in each-beauty, the fear of death, the fear of exclusion, the needs for recognition and for toil; and, in negotiation, appreciation, affiliation, autonomy, status, and role-arguing that they carry ontological weight, helping to constitute law itself as an object of knowledge and argument. Why, then, do scholars so insistently deny them? The answer lies in a "normative alexithymia," a trained inability to read one's own emotions that leaves a community poorly equipped to see the lens through which it apprehends its object. The Article proceeds by suggestion rather than proof, aiming less to demonstrate these emotions than to make their workings visible. Its claim is that emotion has always accompanied reason in the making of legal knowledge-and that recognizing this is itself a condition of thinking well.

Download the article from SSRN at the link.

Fruehwald on Theory-Induced Blindness in Legal Scholarship: A Critical Thinking Solution

Scott Fruehwald, Independent Scholar, has published Theory-Induced Blindness in Legal Scholarship: A Critical Thinking Solution. The truth matters, and, consequently, how scholars seek the truth matters. Scholars often use theory as a framework to help them attain the truth. Accordingly, a scholar’s theoretical approach must be accurate; it must not be tainted in any way. “Theory-induced blindness” taints truth-seeking. Theory-induced blindness has contaminated legal scholarship in many ways. This article will examine theory-induced blindness in legal scholarship and demonstrate how it has affected the truth of that scholarship on both ends of the ideological spectrum. Part II will introduce the basics of theory-induced blindness. Parts III-VII will present examples of theory-induced blindness in Classical Legal Thought, writing legal history, traditional law and economics, post-modern legal scholars’ social constructionist arguments, and two professors’ defense of learning style theory. Finally, the conclusion will discuss the best solution for avoiding theory-induced blindness–evaluating theories with critical thinkin

Guerra-Pujol on A Plea to Adam Smith Scholars

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico; University of Central Florida, has published A Plea to Adam Smith Scholars. Here is the abstract.

My plea to Adam Smith scholars is this: stop citing Adam Smith's Lectures on Jurisprudence (Smith 1978) without proper qualification, let alone a disclaimer. Although this work purports to be a primary source--a transcription of Smith's law lectures at the University of Glasgow--these student lecture notes pose two practical problems. One is that we have no idea how faithful or accurate this transcription of Smith's law lectures is. The other problem is that Smith himself may have repudiated the ideas contained in those early law lectures.

Download the essay from SSRN at the link.

Pfander on Looking for Art in the Law Review Article

James E. Pfander, Northwestern School of Law, has published Looking for Art in the Law Review Article at the Harvard Law Blog, September 5, 2025 and as Northwestern Public Law Research Paper No, 25-44. Here is the abstract.

This short essay considers the nature of and market for legal scholarship. Taking a page or two from the book Air Guitar by the critic, Dave Hickey, the essay reflects on how we measure greatness and failure in art and in the art of the law review article. Blame for all seemingly irrelevant asides should be assigned to Arthur Leff, whose work taught us much about greatness. Failure we have all had to work out for ourselves.

Download the essay from SSRN at the link.

Call For Papers: The Legal Treatise: Past, Present, and Future @nmignanelli

 Call for Papers – The Legal Treatise: Past, Present, and Future

 

The Lillian Goldman Law Library and Law Library Journal invite proposals​ for a symposium on the Legal Treatise to be held at Yale Law School on Friday, March 24, 2023. 

 

The purpose of this symposium is to examine the many aspects of the history, present circumstances, and future of the legal treatise as a source and genre. Possible topics include but are not limited to: the origins of the treatise, the role of the treatise in English and American law practice and legal culture during particular periods in history, the commodification of the treatise, international and comparative perspectives on the treatise, microhistories of specific treatise titles, biographical accounts of treatise writers, rivalries between treatise writers, treatise authorship successions, reflections on contemporary treatise writing and publishing, the rise of the scholarly monograph, the (in)accessibility of the treatise, the transition of the treatise from a print resource to an electronic resource, the decline of the multi-volume treatise in law practice and legal scholarship, and theories about and proposals for the future of the treatise. 

 

Please send proposals in the form​ of an abstract to Nicholas Mignanelli at nicholas.mignanelli@yale.edu. Please be sure to include your name, institutional affiliation (if applicable), and contact information in your email. Those whose proposals are accepted will be invited to present at the symposium and will have the opportunity to publish their paper in Law Library Journal.  Early-career and previously unpublished scholars, as well as previously published authors​, are encouraged to submit. The submissions deadline is June 1, 2022.

Ruhl, Vandenbergh, and Dunaway on Total Scholarly Impact: Law Professor Citations in Non-Law Journals @jbruhl @michaelvanden6 @vanderbiltlaw

J. B. Ruhl, Michael P. Vandenbergh, and Sarah Dunaway, all of Vanderbilt Law School, have published Total Scholarly Impact: Law Professor Citations in Non-Law Journals. Here is the abstract.

This Article provides the first ranking of legal scholars and law faculties based on citations in non-law journals. Applying the methods, as much as possible, of the widely used Leiter-Sisk “Scholarly Impact Score,” which includes only citations in law publications, we calculate a “Interdisciplinary Scholarly Impact Score” from the non-law citations over a five-year period (2012-2018) to the work of tenured law faculty published in that period in non-law journals. We also provide the weighted scores for law faculty at the top 25 law schools as ranked by the US News rankings, a school-by-school ranking, and lists of the top five faculty by non-law citations at each school and of the top fifty scholars overall. The work of legal scholars outside of law journals is not trivial. Over 600 faculty members from the 25 schools in our cohort published almost 3,000 articles in non-law journals from 2012-2018, and those articles received close to 21,000 citations in non-law journals. The faculties that rank in the top ten based on weighted scores for Interdisciplinary Scholarly Impact using the Leiter-Sisk weighting method (2x the mean + the median) for all faculty with at least one publication in the study period are: Minnesota, Stanford, Yale, Duke, Cal-Irvine, Georgetown, Boston University, USC, Vanderbilt, and George Washington. The rankings, although subject to limitations similar to those faced by the law journal citation studies, demonstrate that it is possible with reasonable effort to include citations in both law and non-law journals in rankings of legal scholars and law school faculties. Legal scholars are cited in non-law journals for the work they publish in legal journals and, in many cases, for work they publish in non-law journals. Counting only their citations in law journals thus underestimates both the impact of their legal scholarship and their interdisciplinary impact. Non-law journals are widely read by law and policy scholars, scientists who influence legal scholarship, and policymakers, and publications and citations of legal scholars in non-law journals can be an indication of work that has transcended the conceptual frameworks, assumptions, or methods of legal research. Publications and citations in non-law journals thus provide an additional indication of the influence of legal scholars. Citations in non-law journals also provide an indication of the influence of legal scholars on the overall scholarly enterprise outside of law, and accounting for non-law citations in legal rankings can also encourage interdisciplinary scholarship. Scholars from non-law fields have made important contributions to legal scholarship, but the reverse should also be the case. Acceptance by other fields of legal scholars’ proposed legal reforms can play an important role in determining their success, which is made more likely when legal scholars are included in the work of other disciplines. For these reasons, we suggest in the Article that future evaluations of legal scholars’ work include both the Law Scholarly Impact Score and the new Interdisciplinary Scholarly Impact Score, or combine the two into a Total Scholarly Impact Score. Although there is some mismatch in the citation engine capacities and the time frames for our non-law journal citation study and the most recent Sisk et al. law journal citation study, a combination of the two can provide a rough approximation of the Total Scholarly Impact Score. The top ten law faculties based on this combined measure are: Yale, Harvard, Chicago, NYU, Stanford, Columbia, Duke, Cal-Berkeley, Pennsylvania, and Vanderbilt. The databases used in the law and non-law studies and their search capacities differ, making it difficult to develop a citation study method that captures all of a faculty members’ law and non-law publications and all citations to them in defined time frames. We are working to improve the non-law citation study database and search capacity. Following an introduction to the project, in Part I we discuss why accounting for legal scholars’ non-law publications and citations is important when assessing scholarly impact. Part II describes our methodology. Part III presents our results, and Part IV discusses the results.

Download the article from SSRN at the link.

Roston and Levit on Information For Submitting Articles to Law Reviews & Journals

Allen Rostron and Nancy Levit of the University of Missouri, Kansas City School of Law have once again updated their very helpful Information for Submitting Articles to Law Reviews & Journals. Here is the abstract.

This document contains information about submitting articles to law reviews and journals, including the methods for submitting an article, any special formatting requirements, how to contact them to request an expedited review, and how to contact them to withdraw an article from consideration. It covers 202 law reviews. The document was updated in January 2018.

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West on The New Legal Criticism @GeorgetownLaw

Robin L. West, Georgetown University Law Center, has published The New Legal Criticism at 117 Columbia Law Review Online 144 (2017). Here is the abstract.

Professors Hanoch Dagan and Avihay Dorfman’s article Just Relationships is a fundamental reinterpretation of the moral ideals of large swaths of private law. Its significance, however, may go beyond even that broad ambition. In this Response, I suggest that Just Relationships is also an exemplar — perhaps par excellence — of an emergent form of critical discourse, which may itself foreshadow a paradigm shift in contemporary critical legal scholarship. That new form of scholarship might usefully be dubbed “the new legal criticism.” The label serves partly as an echo of the “New Criticism” movement that emerged in literary criticism in the middle of the twentieth-century, which, in methodological ways, the new legal criticism very much resembles. But primarily, the label “new legal criticism” suggests that this ascendant group of legal scholars articulates a different point of departure for critical thinking about law — particularly for critical thinking about private law — from that which most immediately preceded it in twentieth century legal thought: the critical legal studies movement. Part I describes new legal criticism and compares it with the critical legal scholarship movements of the 1970s, 1980s, and 1990s. Part II further expands my claim that Just Relationships is a good exemplar of the new legal criticism by looking at the roles played by relational justice in Dagan and Dorfman’s explication of their jurisprudential claims. Part III looks at the limits of new legal criticism, again as exemplified by Just Relationships. I will explore whether the reliance of the new legal criticism on law itself in the development of the idea of justice limits its potency as a form of criticism by comparing the authors’ discussion of discrimination in housing with a subject they do not address, at-will employment. Finally, the conclusion explores possible avenues of further exploration within the authors’ chosen field — private law, largely understood — and within the parameters set by the new legal criticism’s premises.

Download the article from SSRN at the link. 

Munshi on Comparative Law and Decolonizing Critique @GeorgetownLaw

Sherally K. Munski, Georgetown University Law Center, has published Comparative Law and Decolonizing Critique. Here is the abstract.

This essay seeks to reanimate comparative legal scholarship by reorienting it towards decolonizing critique. In his critical assessment of the state of the field, Pierre Legrand suggests that comparative law has become mired in a solipsistic and outmoded style of positivism. Drawing upon theoretical insights from critical theory, Legrand argues that comparative law might render itself more generative and more relevant by engaging in a more contextualized analysis of law and encouraging active interpretation beyond descriptive reporting. In this essay, I extend Legrand’s arguments to suggest that an emancipated, incorporative, and interdisciplinary comparative law might play an important role in decolonizing legal scholarship more broadly. Founded in a commitment to constrain an ethnocentric impulse in legal discourse, comparative law might be expanded to challenge the varieties of Eurocentrism that continue to define legal scholarship and study, while providing hospitable ground for critical and interdisciplinary projects aimed at exploring the colonial roots of both the contemporary nation-state system and globalized racial formations.

Download the article from SSRN at the link.

Peters on The Rise and Decline of the International Rule of Law and the Job of Scholars @MPILheidelberg

Anne Peters, Max Planck Institute for Comparative Public Law and International Law, is publishing The Rise and Decline of the International Rule of Law and the Job of Scholars in The International Rule of Law: Rise or Decline (Heike Krieger, George Nolte, and Andreas Zimmermann, eds.). Here is the abstract.

International law feeds on preconditions which it cannot guarantee itself. International scholarship, too, must come to grips with pre-conditions and existing parameters over which it has no control itself. But such scholarship must not ‘succumb’ to these factual and ideational realities by adapting its methods and findings to any given political, social, and economic climate. It is the job of international legal scholars to produce ideas in a spirit of realist utopianism (John Rawls). Depending on the existing parameters, these ideas are apt to shape attitudes and actions, or not. Such scholarship also needs to distance itself from its object of study in order not to lose its capacity to criticise the law and the practice. How far exactly scholarly writing should transcend or keep aloof from the prevailing political climate and from concerns of feasibility depends on the research questions under discussion and is a matter of judgment. The style of scholarship suggested here is illustrated by the work of three eminent scholars whose careers continued through different political eras more or less favourable to the international rule of law: Hersch Lauterpacht, Antonio Cassese, and Josef Kunz.

Download the essay from SSRN at the link.

Makela on Whether Law Is an Academic Discipline

Finn Makela, Université de Sherbooke, Faculty of Law, has published Is Law an Academic Discipline? at 50(3) R.J.T.U.M. 422 (2017). Here is the abstract.

This article engages with the existing literature on the role of legal research in the University by framing the question as whether law is an academic discipline. I answer in the affirmative but my defense of this position is based on a sociological rather than an ontological conception of disciplinarity. Law is an academic discipline not by virtue of its relationship to a specific object or methodology, but by virtue of the institutional recognition of its legitimacy to produce a scholarly discourse. The argument relies on the distinction between points of view internal and external both to law and to disciplines.

Download the article from SSRN at the link.

Rosenbury @UFLawDean on Mary Jo Frug's Life, Work, and Scholarly Impact

Laura A. Rosenbury, University of Florida, Levin College of Law, is publishing Channeling Mary Joe Frug in volume 50 of the New England Law Review (2016). Here is the abstract.

This brief essay commemorates the work of Mary Joe Frug upon the twenty-fifth anniversary of her murder, analyzing the ongoing impact of her scholarship in the classroom and in scholarly debates. In particular, Frug’s work inspired the three questions that have structured my teaching and scholarship for over a decade: How does law participate in constructions of gender? How should law participate in constructions of gender? Who wins and who loses? The essay describes how students respond to these questions in the classroom and how the questions have influenced my scholarship analyzing how relationships construct gender and identity. Most of all, the essay mourns the loss of Frug’s ongoing contributions to these important dialogues.

Download the essay from SSRN at the link.

Schlag on Knowledge Production in Law

Pierre Schlag, University of Colorado Law School, has published The Knowledge Bubble — A Diagnostic for Expertopia. Here is the abstract.

Contemporary legal thought aims at a variety of different objectives: explanation, understanding, interpretation, edification, elucidation, observation, critique, narrative, norm-selection, norm-justification, political action — any of these and more, including all manner of hybrids. In U.S. law schools (particularly the elite schools) there is now an ascendant genre that might be called “knowledge production.” This genre is intellectually sophisticated, technically rigorous, methodologically scrupulous, and theoretically conversant. Its overt aim is to produce a piece of knowledge that is definitive, enduring, and if at all possible, unassailable. The most notable qualities of this genre are expertise and mastery. This essay sets forth a series of challenges and problems for knowledge production. The idea is that knowledge production efforts must successfully negotiate the challenges and problems described herein to successfully achieve their ambitions — the production of knowledge. Nonetheless, most knowledge production efforts in American legal thought seem to be only dimly aware of these challenges and problems. Instead, these difficulties are typically bypassed in order to get on with the knowledge production enterprise. Somewhat vexingly, however, it is precisely the failure to address and negotiate these difficulties that precludes so much knowledge production in law from actually yielding knowledge in any deep sense of the term. The essay concludes with a description of why and how this matters intellectually, aesthetically, economically, morally, politically, and critically.

Download the essay from SSRN at the link.

Hutchinson on Using Interdisciplinary Methods In Law Reform

Terry Christine M. Hutchinson, Queensland University of Technology Faculty of Law, is publishing The Doctrinal Method: Incorporating Interdisciplinary Methods in Reforming the Law in volume 8 of the Erasmus Law Review (2015). Here is the abstract.

The doctrinal methodology is in a period of change and transition. Realising that the scope of the doctrinal method is too constricting, academic lawyers are becoming eclectic in their use of research method. In this transitional time, legal scholars are increasingly infusing evidence (and methods) from other disciplines into their reasoning to bolster their reform recommendations. This article considers three examples of the interplay of the discipline of law with other disciplines in the pursuit of law reform. Firstly the article reviews studies on the extent of methodologies and reformist frameworks in PhD research in Australia. Secondly it analyses a ‘snapshot’ of recently published Australian journal articles on criminal law reform. Thirdly, it focuses on the law reform commissions, those independent government committees that play such an important role in law reform in common law jurisdictions. This examination demonstrates that while the doctrinal core of legal scholarship remains intact, legal scholars are endeavouring to accommodate statistics, comparative perspectives, social science evidence and methods, and theoretical analysis, within the legal research framework, in order to provide additional ballast to the recommendations for reform.

Download the article from SSRN at the link.

Olson on the Future of Law and Literature (and Other "Law-And") Movements

Greta Olson, Justus-Liebig-University, Giessen, has published Futures of Law and Literature: A Preliminary Overview from a Culturalist Perspective in Recht und Literatur im Zwischenraum/Law and Literature In-Between: Aktuelle inter- und transdisziplinäre Zugänge/Contemporary Inter- and Transdisciplinary Approaches 37-69 (Christian Hiebaum, Susanne Knaller, and Doris Pichler, eds., Bielefeld, 2015). Here is the abstract.

Two meta-narratives concerning developments in Law and Literature currently prevail. One suggests that the post-1970 movement that was spearheaded by reformist US American legal teachers such as J. B. White, Richard Weisberg, Robin West, and the moral philosopher Martha Nussbaum is no longer viable. Accordingly, the movement is adjudged to be politically and methodologically passé. Further, a discourse is emerging within legal theory that says that since law once housed all of the disciplines currently used to interrogate it, it does not need literature (or anthropology or sociology for that matter) to reflect on its practice. The other narrative says that the historical and geographical moment that marked Law and Literature as US American has been replaced. “Law and Literature” has metamorphosed into a number of different interdisciplinary local and transnational ventures. Accordingly, a polysemic Law and Literature needs to develop a new form of self-reflection about its practice.

Download the essay from SSRN at the link.

Matthew Windsor On Unreliable Narration and Legal Interpretation in International Law

Matthew Windsor, University of Oxford, has published Narrative Kill or Capture: Unreliable Narration in International Law at 28 Leiden Journal of International Law 743 (2015). Here is the abstract.

This article evaluates the benefits of a ‘turn to narration’ in international legal scholarship. It argues that significant attention should be paid to the narrators who employ international law as a vocabulary to further their professional projects. Theories of unreliable narration help map consensus within international law’s interpretive community in a manner that is acutely sensitive to point of view and perspective. The article examines the existence and extent of unreliable narration through a case study: the practice of targeted killing by the Obama administration in the United States. The struggle for control of the narrative, by narrators with different professional roles and cognitive frames, is ultimately a struggle for interpretive power, with the resulting ability to ‘kill or capture’ divergent narrative visions. Unreliable narration offers a critical heuristic for assessing how narratives are generated, sustained, and called into question in international law, while fostering reflexive inquiry about international law as a professional discipline.

The full text is not available on SSRN.

What's Right With Law Reviews

Cass R. Sunstein, Harvard Law School, is publishing In Praise of Law Reviews (And Jargon-Filled, Academic Writing) in the Michigan Law Review. Here is the abstract.

Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”

Download the article from SSRN at the link.

The Arc of Legal Scholarship From the Early Twentieth Century To Today

Daniel A. Farber, University of California, Berkeley, School of Law, has published Back to the Future? Legal Scholarship in the Progressive Era and Today in volume 100 of the Minnesota Law Review. Here is the abstract.

This article introduces volume 100 of the Minnesota Law Review. Like much of legal scholarship today, Issue 1 was deeply and unapologetically embedded in the concerns of its day, which was on the cusp between the Progressive Era and the outbreak of World War I. It is not uncommon to contrast modern legal scholarship with some past era in which scholarship was more doctrinal, less policy oriented, and more focused on issues relevant to practicing lawyers. Yet, of the four articles in Issue 1 of the law review (published in 1917), two are international or comparative, and three (including the comparative article) rely on policy arguments rather than limiting themselves to doctrinal analysis. The subjects include children’s rights and the juvenile justice system along with American neutrality in World War I. Indeed, even by the late Nineteenth Century, there were complaints that law professors and law school education had departed too far from the realities of legal practice. The golden age in which practicing lawyers and law professors walked hand in hand into the sunset may be little more than myth, like so many other golden ages.

Download the article from SSRN at the link.

Legal Doctrine, Its Aims and Methods

Jan M. Smits, Maastricht University Faculty of Law, Maastricht European Private Law Institute (M-EPLI), has published What is Legal Doctrine? On the Aims and Methods of Legal-Dogmatic Research as Maastricht European Private Law Institute Working Paper No. 2015/06. Here is the abstract.

This paper seeks to obtain a better understanding of the aims and methods of doctrinal legal scholarship. It argues that legal doctrine serves the three main goals of description, prescription and justification and makes clear that many methodological choices have to be made in order to pursue these goals. One important finding is that legal doctrine reflects the normative complexity of the law: it offers detailed and sophisticated information about how to deal with conflicting arguments. Stripping the law from this practical knowledge by reducing it to general principles or policies, or by trading it in for economic or empirical analysis, is not helpful. In addition, the doctrinal approach is in many ways the necessary prerequisite for undertaking any other type of analysis of law (such as economic, comparative, empirical or behavioural work). All this contributes to carving out the proper place of legal doctrine in current legal scholarship.

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Language and Legal Scholarship and the Constitutionalization of International Law

Roman Kwiecien, MAria Curie-Sklodowska University, has published International Constitutionalism, Language in Legal Discourse, and the Functions of International Law Scholarship. Here is the abstract.

The article addresses an issue of the role of language and legal scholarship within the ongoing debate on constitutionalisation of international law. The author argues that the lack of common legal language can call into question usefulness of international constitutionalism vocabulary for better understanding of legal changes in contemporary international society. In fact, scholars use different languages within the mentioned debate. There are within it two opposing ‘cohesive élites’, that is to say, two élites sharing different moral, political and social values, and different aims relating to the conduct of academic discourse. Consequently, the article seeks to point out some weaknesses of the constitutionalist approach, which can justify scepticism about constitutionalisation of international law conceived both as a legal process within international society and as a research agenda

Download the article from SSRN at the link.