June 22, 2011 AALS Midyear
Cutting Edge Scholarship and Tips on the Mechanics of Scholarly Productivity
© Nancy Levit *
I am going to be talking about the criteria for cutting edge scholarship, using as an example, the rise of narrative (some of my co-panelists will talk about the rise of empiricism), and then I’ll offer some suggestions on the process of scholarship.
How do we know now, without the advantage of a retrospective look, which innovation is going to be significant novelty?
The first point about cutting edge work is that scholarship at the defining boundary relies foundationally on the “three C’s of the scientific method”: cumulative, comprehensive, and converging evidence. Cumulative evidence is evidence that has mounted. Comprehensive evidence is evidence that covers the waterfront. Converging evidence is evidence that points in the same direction.
Tied to this is the second idea, that evidence — to be truly comprehensive — should come from other disciplines as well. An interdisciplinary foundation is essential. In fact, my cynical view on hot topics is: look to see what is current in other disciplines now and you can see what will be on the cutting edge in law ten years from now. Law has no methodology of its own and is a notorious scavenger of other disciplines — not that that is a bad thing; interdisciplinary work is a very good thing — it is just that we’re so awfully slow about doing it
Third, innovative legal theories will be fertile theories: they will lead to explanatory and exploratory spin-offs.
Finally, cutting edge scholarship also seems to shift the lens—to look at prior theories or sets of facts in a different light or from a different vantage point.
There is a trend toward narrative in legal academic writing that illustrates these criteria.
More than twenty years ago, some ground-breaking theorists made a case for legal scholarship to shift the lens and incorporate the stories of outsiders. Traditional scholarship for centuries had excluded the perspectives of subordinated groups—“voices from the bottom.”
The stories contributed by feminists and critical race theorists found a home in some of the most prestigious law reviews in the country. They revealed the types of discrimination faced by people outside the mainstream—biases associated with dress, language, accent or “foreignness.”
The storytelling movement met with major resistance from traditional theorists. Stories, said the opponents, are not an appropriate method of legal scholarship. They posed problems of reliability and validity, and they are incendiary. But critical theorists persisted and pointed out that, really, everyone tells stories, except that, as Catharine MacKinnon says, “[d]ominant narratives are not called stories. They are called reality.”
What was the outcome of the narrative battle?
In important dimensions stories changed the way legal academics thought about scholarship. Law professors began to understand something scholars in other disciplines had known for a long time—interdisciplinarity—that people comprehend events in narrative form.
Cognitive psychologists have demonstrated that stories are the way people understand the world. People retain about 20 percent of what they read, but will remember about 80 percent of the images they form in their minds. Stories are recalled much better than sterile facts because stories are essentially remembered as symbols or images. Stories also provoke interest and encourage empathetic imagination.
Storytelling is a fertile area of scholarly innovation, built on knowledge from other disciplines, that shifts the lens, and encourages exploratory spin-offs. But, frankly, you can’t just tell stories—that is not sufficiently analytical scholarship. And I use narrative as just an example of the criteria about innovations.
So how can you move toward writing at the cutting edge?
Let me shift gears here—and move from criteria of innovative scholarship to the mechanics of scholarship production, with an eye toward innovation.
1. Know the rules.
Review your law school’s promotion and tenure guidelines. Know the number of publications required for promotion and tenure, and any qualitative requirements, such as “three scholarly works which can be regarded as significant contributions to the knowledge of the field.” Be aware of the particulars: for instance, whether articles published (or written) before the candidate arrives at the tenuring institution will count toward tenure. Also, find out if the standards require that each article must already be in print at the time of the candidate’s consideration for tenure or promotion, or simply be completed or accepted for publication.
There may be some the unwritten requirements as well. A very important consideration on most faculties—but one that is only rarely spelled out in the governing rules—is the importance of a steady stream of publications (rather than the same amount of work done at the last minute). Tenuring bodies are looking for indications that candidates are interested in writing and will be productive scholars over an academic lifetime.
Talk to the more senior faculty in your school about what the school’s expectations mean in practice—about what “counts” as legal scholarship. And try to meet the general expectations in the field. You may want to change institutions at some point in your career. This is one reason why garnering mentors at other schools is important.
2. Size matters.
Do not begin by writing op-eds and do not begin with a book. Too often, newer writers think that their launch must be a breathtaking magnum opus. Dean Donald Weidner urges new faculty to avoid what he calls “the Moby Dick syndrome, the tendency to assume that your first article must be of monumental length and significance.” For those who prefer sports over literary analogies, don’t set out to hit a home run. That can be paralyzing. You’ll never want to go to the plate. Just make contact and get a single. Put the ball in play.
3. Topic selection.
You may already have a “scholarly agenda.” But what if multiple areas interest you?
In a prominent defamation case, Jeffrey Masson sued the New Yorker writer who said he had called himself an “intellectual gigolo.” I thought it was a compliment. Is intellectual promiscuity really a bad thing?
Many advisors urge beginning writers to develop a body of work by building on the writer’s own prior works. Publishing in one area or a series of related areas creates proficiency more quickly than developing expertise in far-flung arenas. The writing can be more efficient, since you’ll already have familiarity with many of the basic themes in the field. Developing expertise in a particular area is also a way to become known and obtain invitations to conferences, and it makes peer review easier. On the other hand, being more of a generalist may create a stronger foundation.
The political reality is that, at least initially, your school’s promotion and tenure standard may dictate whether you can indulge in more eclectic intellectual pursuits.
The best advice is to write about something that truly interests you; if you try to force it or comport with what you think you should be writing rather than following your interests, you may find you lack both motivation and inspiration in your work.
4. Build the interdisciplinary foundation for your work
Shelf-read at a general university library or a specialized science library. Just skim to see what currents in the sciences or social sciences relate to your thesis. Walk down the aisles housing the latest periodicals in related disciplines and browse some of the recent scholarship. For instance, if you write in the area of feminist legal theory, look at some of the latest issues of Signs, Feminist Studies, Journal of Marriage and the Family, or Psychology of Women Quarterly. Look at economics, sociology, anthropology, and political science journals as well.
You don’t even have to walk over to a general university library, since you can now research and electronically shelf-read under many law schools’ agreements with a database aggregator, such as Serials Solutions.
5. Make friends with your librarians.
Tap the wonderful resource of reference librarians. Law libraries support faculty scholarship in numerous ways, and the nature of librarianship is changing. Many libraries provide specialized training about information technology and ways to use electronic research tools and document repositories. A number of libraries have programs to train research assistants. Some libraries ask reference librarians to provide more targeted research assistance directly to professors.
6. Seek feedback.
Although writing is a solitary venture, you will probably find much more support for feedback on and editing of your scholarship than you might expect.
Asking colleagues at your home law school or mentors from other schools to review a draft of your article is a good idea. Professor Ron Wright offers the excellent tip to seek friendly and supportive advice first, and then later seek more critical advice on a piece. Different law schools have varying customs about how complete an idea or paper needs to be for presentation at a faculty colloquium or writers’ workshop.
A theme running through my comments is the importance of communication and seeking the advice of mentors on your faculty and among the wider community of scholars. You will probably find a very supportive community willing to engage your ideas, provide useful criticism, and offer feedback on drafts. You will just need to ask. It is like one of the last lines in the book that sparked an interest in law for many of us, To Kill a Mockingbird, when Atticus confirms Scout’s discovery that “[m]ost people are” essentially kind and helpful “when you finally see them.”
* Curators’ and Edward D. Ellison Professor of Law, University of Missouri-Kansas City School of Law and co-author, with Douglas O. Linder, of The Happy Lawyer: Making a Good Life in the Law, available at http://www.amazon.com/Happy-Lawyer-Making-Good-Life/dp/0195392329 .
Portions of pages 3-6 of the following material are excerpted from Nancy Levit, Scholarship Advice for New Law Professors in the Electronic Age, 16 Widener L.J. 947 (2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=939007.
 Nancy Levit, Defining Cutting Edge Scholarship: Feminism and Criteria of Rationality, 71 Chi.-Kent L. Rev. 947 (1996).
 See, e.g., Kathryn Abrams, Hearing the Call of Stories, 79 Cal. L. Rev. 971 (1991); Richard Delgado, Campus Antiracism Rules: Constitutional Narratives in Collision, 85 Nw. U.L. Rev. 343 (1991); Richard Delgado, On Telling Stories in School: A Reply to Farber and Sherry, 46 Vand. L. Rev. 665 (1993); Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 Mich. L. Rev. 2411(1988); William N. Eskridge, Jr., Gaylegal Narratives, 46 Stan. L. Rev. 607 (1994); Charles Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431; Mari J. Matsuda, When the First Quail Calls: Multiple Consciousness as Jurisprudential Method, 11 Women’s Rts. L. Rep. 7 (1989); Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320 (1989).
 Catharine A MacKinnon, Law’s Stories as Reality and Politics, in Law’s Stories: Narrative and Rhetoric in the Law 232 (Peter Brooks & Paul Gewirtz eds., 1996).
 Nancy Levit & Allen Rostron, Calling for Stories, 75 UMKC L. Rev. 1127, 1128 (2007).
 Michael Berman, A Few Words on Story-telling, Humanizing Language Teaching Mag., May 2003, available at http://www.hltmag.co.uk/may03/pubs4.htm (“Storytelling uses the left brain’s functions (language, a story line, sequences of cause and effect) to speak the right brain’s language of symbolic, intuitive, imaginative truths.”).
 Nancy Levit, Expository Writing Across the Curriculum—Legal Storytelling: The Theory and the Practice, 15 Legal Writing: J. Legal Writing Inst. 253 (2009).
 Devon W. Carbado & Mitu Gulati, Tenure, 53 J. Legal Educ. 157, 160 (2003) (stating that tenure requires “between two and four articles in roughly five years at most schools”). See, e.g., Emory University Office of the Provost, Emory Law School Procedures and Criteria for Appointment, Promotion and Tenure (1997), available at http://www.emory.edu/ PROVOST/tenurepromotion_files/tp_law.htm#VIII (“[R]arely will a candidate who produces not more than the equivalent of two law review articles during the period of limited appointment be recommended for continuous appointment . . . . ”); Washington & Lee University, Law School Faculty Appointment, Tenure and Promotion Procedures, § V.C.2., available at http://thecollege.wlu.edu/ administration/handbook/law-pt.htm#Evaluation (last visited Mar. 17, 2007) (“Ordinarily, at least one piece of substantial scholarship and one other writing that reflects at least a significant scholarly effort, although of lesser scope, will be required in order to meet the standard for scholarship.”).
 Carbado & Gulati, supra note 7, at 160.
 The University of Missouri-Kansas City School of Law offers an example of both quantitative and qualitative dimensions. The quantitative standards of the UMKC Promotion and Tenure By-Laws require “three scholarly works which can be regarded as significant contributions to the knowledge of the field” for tenure. UMKC Tenure Committee, Bylaws of the Promotion and Tenure Committee 18 (1997), available at http://www.umkc.edu/provost/documents/policies/promo_tenure/Units/School%20of%20Law%20by-laws.doc. The notes to the bylaw elaborate:
The focus of scholarship may deal with numerous aspects of the legal spectrum such as statutes, case law, policy, government, educational techniques, history, jurisprudence, and interdisciplinary linkages. Likewise, the range of scholarly methods is broad and may include empirical research, analysis, synthesis, and innovation; it can involve the practical as well as the abstract or creative. Writing for practitioners can be relevant for tenure or promotion considerations but candidates are advised that such writing should show depth, analysis, synthesis, or organization that is distinctive. Articles published in reputable academic journals other than law reviews may be treated as equivalent to articles published in law reviews.
Id. at 16 n.1.
 Donald J. Weidner, A Dean’s Letter to New Law Faculty About Scholarship, 44 J. Legal Educ. 440, 443 (1994).
 Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 502 (1991).
 Kathleen M. Sullivan, Foreword: Interdisciplinarity, 100 Mich. L. Rev. 1217, 1225 (2002).
 See Margaret A. Leary, Library Support for Faculty Research, 53 J. Legal Educ. 192, 193-96 (2003).
 Ronald Wright, Delivering the Ideas: Comments for New Legal Scholars, at 60 (2005), available at http://www.aals.org/nlt2005/RonaldWright Outline.pdf (an outline of an address given before the Association of American Law Schools’ New Teachers’ Conference, June 23-26, 2005).
 Harper Lee, To Kill a Mockingbird 281 (First Warner Books Prtg. 1982) (1960).