Wednesday, April 28, 2021
This is the last of today's scholarship spotlight posts, scholarship of interest to those in the ASP/ bar field. Congratulations to each of the authors highlighted in today's posts and to our community for such a prodigious output of ideas.
1. Steven K. Homer (New Mexico), Hierarchies of Elitism and Gender: The Bluebook and The ALWD Guide, 41 Pace L. Rev. 1 (2020).
From the abstract:
Hierarchies persist in legal academia. Some of these, while in plain view, are not so obvious because they manifest in seemingly small, mundane choices. Synecdoche is a rhetorical device used to show how one detail in a story tells the story of the whole.
This Article examines hierarchies of elitism and gender through a lens of synecdoche. The focus is on the choice of citation guide. Even something as seemingly benign and neutral as choosing a citation guide can reveal hierarchies of elitism and gender bias in legal education and the legal profession. Put another way, the choice of citation guide exists in—is inextricably embedded in—structural hierarchies of the legal profession. This Article examines the ways the choice of a citation guide reinforces elitism and gender bias by examining the use of two common citation guides, The Bluebook and the ALWD Guide. The Bluebook was developed by law students engaged in prestige activities at top-ranked law schools and retains the traits of its birth. This is in contrast to the ALWD Guide, which was written by experienced, professional legal writing professors who have dedicated their careers to teaching lawyers how to practice law. The Article describes the ALWD Guide’s focus on educating students to be practitioners, and the role of elitism and gender bias in keeping the ALWD Guide from displacing The Bluebook, despite The Bluebook’s well-documented deficiencies in training attorneys.
This Article describes how learning citation gives students a kind of social capital through explicit and implicit messages they receive about the relationship of citation to their aptitude for the study of law, the connections between citation and prestige activities like law reviews, and the rhetoric of citation as a proxy for “good lawyering.” It explains how the elevation of The Bluebook elevates and perpetuates elitism as a substitute for quality over the expertise of women—in this case, women working in lower-status, lower-paying positions.
It ultimately uses the example of the choice of a citation guide to examine the distribution of authority, power, and resources along gender lines in society in general and in legal education. The choice of citation guide is a locus of power, and resistance to small choices that shift power accumulates into the perpetuation of the hierarchical status quo. It concludes that by using this example of synecdoche, we can examine and perhaps shift our awareness of who has power, authority, and expertise within the legal profession and move toward rebalancing this power and authority based upon real expertise. (h/t Tax Prof Blawg).
2. Edwin S. Fruehwald, Theory-Induced Blindness in Legal Scholarship (2021).
From the abstract:
The truth matters, and, consequently, how scholars seek the truth also matters. Scholars 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 thinking.
3. Adam Chilton (Chicago), Peter A. Joy (Wash. U.), Kyle Rozema (Wash. U), James Thomas (Federal Trade Commission), Improving the Signal Quality of Grades (2021).
From the abstract:
We investigate how improving the signal quality of grades could enhance the matching of students to selective opportunities that are awarded early in academic programs. To do so, we develop methods to measure the signal quality of grades and to estimate the impact of changes to university policies on the identification of exceptional students for these opportunities. We focus on law schools, a setting where students are awarded important academic and professional opportunities after just one year of a three year program. Using transcript data from one top law school over a 40 year period, we document large gains in identifying exceptional students if selective opportunities were awarded with more grades and if law schools were to change certain personnel, course, and grading policies. Our findings provide motivation and a blueprint for how law schools and universities more generally could leverage their internal records to ensure that fewer exceptional students miss out on selective opportunities.
(Louis Schulze, FIU Law)