- A "clear and at least fairly original central idea."
- "The idea has to make sense."
- "The article should seriously consider counter-arguments."
- "The article should demonstrate mastery of its subject."
- "The article should actually have been tested in the marketplace of ideas prior to publication" (emphasis in original).
This is an interesting and helpful list. I would add a couple of items and deemphasize (but not eliminate) one of them.
- [substitute] The article must reflect serious feedback from other scholars. I am not a big fan of "workshop it first" for truly original material; it encourages a rush toward the middle. (Perhaps I see this more than do most scholars because I work with so many non-lawyer authors.) Instead, a selective release to other scholars in the field seems more useful to me. For some kinds of articles, that might include SSRN; for many, howeverparticularly for interdisciplinary works, which seem to have unduly low "download to abstract view" ratios on SSRNit will not. I have also found that SSRN is much more partisanly polarized than one would expect of a good cross-section of legal scholars. Thus, I think SSRN a tool, but not a substitute for careful, selected one-on-one colloquys with other scholars. I also think that this may be counterproductive when dealing with "new developments," such as an analysis of the Patriot Act in the first few months after its passage at warp speed.
- [new] The article must be written in clear, concise English that does not rely upon jargon. Elegance is probably too much to expect in legal scholarly writing, primarily because elegant writing usually means eschewing excessive references (see next item). Good communication, however, is not too much to expect, if all too uncommon. Too many articles, particularly both those using a law-and-economics analysis and those covering intellectual property and/or evidence, rely upon jargon to so great an extent that only those who naturally agree with the premises and conclusions speak the same language. This severely inhibits the ability of such an article to add to scholarly (let alone practical) knowledge.
- [new] The article must not substitute citation for analysis. This is not an argument against footnotes; it is an argument against the paranoid need to prove that somebody has said something before on a given subject, however trivial. In fact, I wish that "standard" legal writing would get rid of string cites to anything except controlling authority; but that's not going to happen any time soon! One of the reasons that the academic core looks down on legal scholarship is that only arguments that one can demonstrateexhaustivelyhave previously been made by somebody else seem to get much notice, while truly original analysis that does not have lots of citation to other authority gets short shrift. Consider the following passage:
One factor which has been considered by the Ninth Circuit in determining what level of official should bind the government is the burden which would be required of the citizen seeking the official interpretation.58 In United States v. Clegg,59 the defendant, an American citizen teaching school in Pakistan, relying upon the encouragement and solicitation of a lieutenant colonel of the United States Army and the United States Army's director of military intelligence in Pakistan, transported arms to the Afghan rebels.60 The lieutenant colonel was second in command in Pakistan at the time.61 The approved transportation of arms was in reality a violation of federal law.62 However, the court held that the defendant's reasonable good faith reliance on the statements of these United States officials would be a valid defense to the federal charge of exporting firearms.63 The Clegg court emphasized two facts in support of its holding: first, the defendant was operating far from the territory of the United States in a place not obviously covered by American law, and second, the officials were of very high rank.64
[name, title, and journal withheld to protect the guilty] That's seven footnotes to a four-page passage (actually two-and-a-half pages after allowing for the introduction and worthless headnotes) in one case. A single footnote would have sufficed. Instead, though, the padding of footnotes makes it appear at first glance that this article reflects considerable research… and hides the fact that at least one of the officialsthe lieutenant colonel who was not actually in commandis as a matter of law not of "high rank." Further, those footnotes don't do what they should. For example, note 62 should state what federal law was "in reality" being violated, presuming that one rejects a two-or-three-line footnote covering the whole paragraph as insufficiently precise. And all of that is before considering the flabby prose; this paragraph should be one-third shorter.
- [new] The article must advance the state of the law, not just a peripheral argument or personal feud. To put it another way, the subject of the article must matter to persons other than a few scholars arguing about an abstruse technicality. Technical articles can be extremely useful, especially when they draw a wide range of scholarship together to enable a coherent discussion of a specialized field. Technical articles in which scholars send each other open nastygrams based as much on personal dislike as on the merits of the underlying argument are not.
- [new] The article must not express or imply personal disdain for litigants involved in a (potentially) live controversy. This was a serious problem with many securities-law submissions that I saw during my tenure as a law-review editor: About a third of them essentially stated that no shareholder suit or objection could ever be justified unless it came from a majority shareholder whose will had been thwarted by the board or the minority, and another third assumed such. As a theoretical position, this is "wrong," but not per se unacceptable. The problem was with the rhetoric, which was almost always slanted to make all shareholders appear to be greenmailing opportunists seeking a quick buck to compensate for their poor judgment or bad luck. Unfortunately, this was not just limited to articles by young associates at New York City corporate-defense firms trying to get their feet in the door. Also unfortunately, this is not just limited to articles that get rejected.
- [new] The article must not pretend that disagreement with it is impossible or that it is definitive. Lawyers have egos; scholars have egos; put the two together and… But that is not an excuse for Kingsfield-like arrogance that admits of no opposition. That is not scholarship; that is polemic; and polemic has its place, but not in scholarly journals. The law doesn't "say" anything. The law implies or indicates something to people with a common background and understanding. Trying to cloak oneself in a purportedly mandated objective view is intellectually dishonest. I have found this problem distressingly common in intellectual property scholarship, particularly at the margins and overlaps of areas within intellectual property, and in civil procedure scholarship.