Wednesday, January 28, 2015
Ethics, Citations, Gaming the Law Ranking System: The Circle of Deceit
I was chatting with a friend at another school and the subject of an up and comer in a mutual area of interest came up. In the midst he suggested he had questions about the ethics of the up and comer. I pressed him and his story was that he had run across a footnote in the up and comer's work that did not seem right to him so he looked at the cited source which actually was just another law professor making a more general statement. Then he looked at the work cited by that law professor and found that the statement was not supported. He felt the up and comer should have checked to see if the person he cited had any basis for his statement. Of course, now that the up and comer has made the same statement, it is likely that will be cited and the incorrect information will be carried forth until it becomes truth when if fact it may never have been fact.
This raises the issue of the care that goes into citations and a small irony. Law review editors want authority for virtually any declarative statement in an article. On the other hand, they do not seem that concerned about the quality of the authority. Consequently authors can write that declarative statement and suggest that it must be true because another author said so and, of course, that author cited another author who cited another one.A vast amount of law review writing is build on a stack of hearsay. I am not sure the hearsay citation raises an ethical concern although, before citing someone, you can argue that an author has an obligation to assess whether that person he or she is asking the reader to depend on knew what he or she was saying (especially if others have said the opposite). Think of it as a reference letter recommending someone you barely met. When I think about it in those terms, I'd say it does raise an ethical issue. Perhaps it is this type of research -- find someone who said this somewhere and cite it-- explains why legal scholarship is often viewed as inferior.
The hearsay citation matter and over citation feed into another problem. As most know, law reviews are ranked and those rankings are determined in large part by citations to the review. The more citations and, perhaps where cited, determine a law review's rank and the law review's rank becomes the the driving force in selecting articles. Thus, when a manuscript arrives editors look at the school where the professor teaches, the source of his or her degree, what he or she has published, where it was published, and how often that author has been cited. Articles of equal quality bubble up and down the law review ranks depending on these factors and the cycle continues. Those that did rise to the top by virtue of institutional authority and the law review's own obsession with rank, are cited more often and those sinking down cited less often. And the cycle goes on. And on.
In the past few years many have accused law schools of being unethical with respect to what they disclose about the legal profession and what they do to game in the rankings. The apples do not fall far from the trees and in my view law reviews that do any of the things listed above are also gaming the rankings. It becomes unethical when they solicit articles without disclosing exactly what their selection process is like. But, there is good news too. Since so few people, aside from those of us in the law school terrarium, care at all about what law professors have to say, the damage is not as great as it might be.