* Assistant Professor, The John Marshall Law School. I am grateful to members of the Steering Committee of the First National Meeting of the Regional People of Color Legal Scholarship Conferences for the opportunity to share my thoughts on scholarship.
1 LANGSTON HUGHES, The Need for Heroes, 48 THE CRISIS 184, 184 (1941).
2 I use the terms “King’s English” and “King’s Court” as metaphors for the Legal Academy (The Academy) and traditional modes of communicating within The Academy (e.g., the Socratic and lecture methods of instruction).
3 See generally Randall L. Kennedy, Racial Critiques of Legal Academia, 102 Harv. L. Rev. 1745 (1989) (evaluating the concern that contributions of scholars of color are often wrongfully ignored or undervalued); Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 Stan. L. Rev. 807 (1993) (evaluating the merits of the use of narrative by critical race scholars).
4 See Heather Meeker, Stalking the Golden Topic: A Guide to Locating and Selecting Topics for Legal Research Papers, 1996 Utah L. Rev. 917, 921. Although law reviews publish essays and articles that fall outside the scope of the traditional functions (e.g., book reviews, narratives, letters, and symposia presentations), my comments in this paper are centered around the more traditional law review article.
5 “Professors who publish, even those whose publications are trivial and mediocre, will earn more, get promoted faster, and migrate to the more ‘prestigious’ universities.” Roger C. Cramton, Demystifying Legal Scholarship, 75 Geo. L.J. 1, 14 (1986). See also Donald J. Weidner, A Dean’s Letter to New Law Faculty About Scholarship, 44 J. Legal Educ. 440, 441 (1994) (noting that “[b]eing a scholar is part of the job” and becoming a complete academic involves “produc[ing], on a regular basis, scholarship that is read and relied on by people who work in your area”).
6 This advice was given to me collectively by colleagues and friends upon my entry into law teaching. It is not intended to suggest that a lack of scholarship will be the only basis for a denial of tenure. For example, the submission of scholarship deemed to be weak by members of the tenure committee at an institution may also be detrimental to one’s longevity as a professor.
7 This statement does not apply, however, to those scholars of color who are teaching at historically black institutions.
8 Computerized legal research tools will include the “Hot Topic” file of LEXIS and the Westlaw counterpart, InfoTrac or LawTrac.
9 Although law review editors and their staffs will comprise the initial audience for legal scholarship, the final audience will consist of legal academics, practitioners, and judges. Members of this final audience, like the members of the initial audience, want to be informed of something “new and illuminating.” See Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students: Seminar Papers, Law Review Notes and Law Review Competition Papers 16 (1995).
10 See Richard Delgado, How to Write a Law Review Article, 20 U.S.F. L. Rev. 445, 448 (1986). Professor Delgado offers the following advice given by a leading law review to its members on choosing comment topics:
[F]ind one new point, one new insight, one new way of looking at a piece of law, and organize your entire article around that. One insight from another discipline, one application of simple logic to a problem where it has never been made before is all you need. The article states in the introduction what that new thing is, and the rest of the article argues, illustrates, defends it in the face of possible objections, showing how it would work in practice.
Id.
11 For example, New York University Review of Law & Social Change’s process for screening book reviews involves an initial review by either of the two book review editors who perform a “crayon test”—a brief skim of the review. See e-mail from Jeremy Telman, Book Review Editor, N.Y.U. REV. L. & SOC. CHANGE (Oct. 23, 1998) (on file with the author). Should the review capture the interest of these editors and pass the initial screening, it is then passed on to two staff editors who perform a more careful reading. See id.
12 See C. Steven Bradford, As I Lay Writing: How to Write Law Review Articles for Fun and Profit, 44 J. Legal Educ. 13, 15 (1994) (noting that topicality and originality are important considerations to law review editors). See also Fajans & Falk, supra note 9, at 16.
13 See generally Kevin Hopkins, Back To Afrolantica: A Legacy of (Black) Perseverance?, 24 N.Y.U. Rev. L. & Soc. Change 447 (1998) [hereinafter Hopkins, Back To Afrolantica] (reviewing Derrick Bell, Afrolantica Legacies (1998) and critiquing the author’s arguments on such topics as black emigration, a property interest in whiteness, affirmative action, and black-Jewish conflicts); Kevin L. Hopkins, A Gospel of Law, 30 J. Marshall L. Rev. 1039 (1997) [hereinafter Hopkins, A Gospel of Law] (reviewing Derrick Bell, Gospel Choirs: Psalms of Survival in an Alien Land Called Home (1996)). See also Bradford, supra note 12, at 15 (suggesting that law review editors are likely to recognize a topic as topical if several law professors have recently written about it).
14 See generally Kevin Hopkins, Law Firms, Technology and the Double-Billing Dilemma, 12 Geo. J. Legal Ethics 95 (1998) [hereinafter Hopkins, Law Firms]. That essay won first place in the Georgetown University Law Center’s Third Annual W.M. Keck Essay Contest in Legal Ethics. It discusses the technological changes in the practice of law and their effect on hourly billing and advocates a change in the ethics rules to expressly allow for the billing of recycled work product to compensate for losses due to technology. See generally id.
15 Preemption is the refusal of a law review to publish an article because its topic has already been addressed and published by another scholar or because the issue has been resolved by judicial opinion. See Meeker, supra note 4, at 933–34; see also Michael D. Stokes, How to Get Your Article Published by a Law Review, A.B.A. J., Oct. 1985, at 144, 144; Delgado, supra note 10, at 449.
16 See Bradford, supra note 12, at 15 (discussing originality of topics).
17 Stokes, supra note 15, at 144.
18 See Bradford, supra note 12, at 15.
19 See id.
20 See generally, e.g., Gloria J. Banks, Traditional Concepts and Nontraditional Conceptions: Social Security Survivor’s Benefits for Posthumously Conceived Children, 32 Loy. L.A. L. Rev. 251 (1999) (considering whether to extend social security benefits to posthumously conceived children).
21 Examples of such titles include Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 Cal. L. Rev. 953 (1996) and Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995).
22 E.g., Regina Austin, Nest Eggs and Stormy Weather: Law, Culture, and Black Women’s Lack of Wealth, 65 U. Cin. L. Rev. 767 (1997).
23 See Bradford, supra note 12, at 17.
24 E.g., Hopkins, Back to Afrolantica, supra note 13; Hopkins, A Gospel of Law, supra note 13; Hopkins, Law Firms, supra note 14. Although I have limited my discussion to contests and reviews, one might also consider selecting and expanding upon a legal topic researched and explored while in practice or during a judicial clerkship.
25 For example, in my review of Professor Derrick Bell’s Afrolantica Legacies, I specifically focused on and critiqued just a few of the many themes raised. See generally Hopkins, Back to Afrolantica, supra note 13.
26 See Delgado, supra note 10, at 448 (noting that producing the typical law review article will take “at least 150 hours from start to finish”).
27 See Fajans & Falk, supra note 9, at 16.
28 Unfortunately, there is no other way to avoid the problem of preemption than to read everything that may be pertinent or related to the issue.
29 See supra note 15 (discussing preemption). Even if others have already written on the topic, it is still possible to develop an original conclusion.
30 In teaching research and writing, I inform my students that consulting a legal encyclopedia or treatise is a good way to acquire a basic working knowledge in a specific area of law. Also, these authorities may provide references to primary authorities and other legal periodicals that may have some bearing on the topic.
31 It should be noted, however, that the cases and sources cited in a law review article are only as current as the date of the article’s publication. Therefore, it is important to Shepardize the cases and statutes and to consult the pocket-parts of all secondary sources to insure that all of the cited materials are still valid.
32 The narrative or storytelling approach has achieved prominence in the writings of critical race scholars and feminists. In the past decade, many law professors have utilized storytelling as a medium to discuss racial issues and concepts that might not be as effectively discussed through the use of traditional legal scholarship. See generally Derrick Bell, Afrolantica Legacies (1998); Patricia J. Williams, The Alchemy of Race and Rights (1991).
33 See generally Farber & Sherry, supra note 3 (evaluating the merits of the use of narrative by critical race scholars); Alex M. Johnson, Jr., Defending the Use of Narrative and Giving Content to the Voice of Color: Rejecting the Imposition of Process Theory in Legal Scholarship, 79 Iowa L. Rev. 803 (1994); Reginald Leamon Robinson, Race, Myth and Narrative in the Social Construction of the Black Self, 40 Howard L. J. 1 (1996) (evaluating the Farber-Sherry critique).
34See Robinson, supra note 33, at 23. Professor Robinson has used the term “voice of color” as a metaphor to refer to the “manifold experiences of civil disability, political inequality, and social injustice” of blacks in America. See id.
35 See id. at 20; see generally Peter C. Alexander, Silent Screams from Within the Academy: Let My People Grow, 59 Ohio St. L.J. 1311 (1998) (discussing institutionalized silencing of minority law professors in American law schools).
36 See Hopkins, A Gospel of Law, supra note 13.
37 See Hopkins, Back to Afrolantica, supra note 13.
38 See Hopkins, A Gospel of Law, supra note 13, at 1057–58 (discussing some of the criticisms against the use of storytelling and narrative).
39 See id. at 1058–59.
40 I am aware that some scholars of color might disagree with this advice and caution the pre-tenure professor to save racial issues for post-tenure scholarship. This decision requires gauging the specific faculty’s response to non-traditional methods of scholarship or willingness to accept such scholarship. On the other hand, I have concluded that one must write about those things that provide intellectual stimulation and excitement.
41 The biggest challenge in critiquing Professor Bell’s books was to identify within the fiction a legal issue or theme that would provide a significant basis for a traditional analysis.
42 Probably the most obvious is the First National Meeting of the Regional People of Color Legal Scholarship Conferences where the speeches and comments of the speakers will be printed by the Boston College Third World Law Journal, the California Western Law Review, and the John Marshall Law Review.
43 See Butler, supra note 21, at 678–79 (including a narrative of the author’s experiences as a federal prosecutor at the Justice Department); Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1710–12 (1993) (including a narrative of the author’s grandmother’s experiences in “passing” as white as a result of the fairness of her skin). As alluded to earlier in this piece, in most cases, the publication of non-traditional scholarship in a law review or journal at a prestigious institution will validate the piece as scholarly.