By Rob Natelson* – October 23, 2022 – Independence Institute.org
This posting relates some experiences from my long career writing for legal academic journals. It was triggered by Professor Gregory Ablavsky’s response to my “Cite Check” of his article, Beyond the Indian Commerce Clause (“Beyond”), and I use features of that response for some of my examples. But if you are interested only in a shortcut telling you who is being accurate in the Natelson-Ablavsky exchange, then I recommend the following:
* Read his quoted extracts from Beyond and from his Fifth Circuit appeals court brief. They are in the Cite Check, which cites to the original documents so you can verify the accuracy of my reproductions.
* Next, read the quotation in the original source. These also are reproduced in the Cite Check.
* Compare the original source with how Ablavsky represented it. The differences should be apparent to any fair minded person. And the reasons behind the differences should be obvious.
The Larger Context: The Cult of Advocacy
That said, the fundamental problem addressed here goes far beyond selective quotation. It is that much—likely most—law review writing is not scholarship at all; it is advocacy in scholarly drag.
The passionate desire to “prove the case” creates incentives to engage in selective quotation. It also fosters other questionable practices: enlisting irrelevant evidence, ignoring and manipulating relevant evidence, and substituting word play for more substantial material. More rarely, you find what appears to be outright plagiarism, as I discovered recently in a law professor’s article in American University Law Review.
The cult of advocacy encourages commission of such misdemeanors, and they are further enabled by how legal academia hires law professors, defines their jobs, and operates law journals.
First Experiences
In 1971, I was a second year law student beginning a stint on the Cornell Law Review. One day a senior editor (i.e., a third year student) assembled us newbies and told us we should start working on our student notes. (A note is a short article on a legal topic by a student law journal staffer.) He handed us a list of suggested topics prepared by the senior editors. Most or all of the topics explicitly prescribed our conclusions. The one I (reluctantly) accepted read something like, “Explain why the New York courts should grant summary judgment more readily in personal injury cases.”
After researching every relevant case, I concluded that, in fact, New York State courts should not grant summary judgment more readily in personal injury cases. I reported this to a senior editor, and that proved to be one step in the deterioration of my relationship with the editorial board.
Another step occurred when I was sent to the library to edit an article by a law professor from another school. The text of the article was substantially complete, but the footnotes contained many gaps. Quite a few featured the instruction, “Student: Find sources to support text.” When I inquired as to why we had accepted such an unfinished and obviously biased article, a member of the editorial board told me the…
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About the Author
Robert G. Natelson is a nationally known constitutional scholar and author whose research into the history and legal meaning of the Constitution has been cited repeatedly at the U.S. Supreme Court, both by parties and by justices. For example, justices have cited his works 17 times in five different cases since 2013. During the Supreme Court term ending in June, 2016 parties referenced his work in 12 different briefs and petitions for certiorari. He is is widely acknowledged to be the country’s leading scholar on the Constitution’s amendment procedure and among the leaders on several other topics.
He was a law professor for 25 years, serving at three different universities, where among other subjects he taught Constitutional Law, Constitutional History, Advanced Constitutional Law, and First Amendment. Professor Natelson is currently the Senior Fellow in Constitutional Jurisprudence at the Heartland Institute in Arlington Heights, IL, the Independence Institute in Denver, Colorado, and the Montana Policy Institute in Bozeman, Montana. He heads the Independence Institute’s Article V Information Center.
Professor Natelson’s articles and books span many different parts of the Constitution, including groundbreaking studies of the Necessary and Proper Clause, federalism, Founding-Era interpretation, regulation of elections, and the amendment process of Article V. In addition to his authorship of law journal articles and legal books, he has written the highly influential Article V Handbook for state lawmakers, the popular book, The Original Constitution: What It Actually Said and Meant, and numerous shorter pieces for media outlets. Recent contributions have been published by the Washington Post, the Washington Times, the Denver Post, the American Spectator, the Wall Street Journal, Barron’s, Townhall.com, the American Thinker, CNSNews, and the Daily Caller, among others.
Professor Natelson is especially known for his studies of the Constitution’s original meaning. His research has carried him to libraries throughout the United States and in Britain, including four months at Oxford. The results have included several break-though discoveries.
His publications are too numerous to list; the bibliography listed here is just a sample. In addition to his articles on the U.S. Constitution, he created the first online guide to “originalist” research (now partly duplicated here); created the database the Documentary History of the Ratification of the Montana Constitution; and in conjunction with his eldest daughter Rebecca, edited the first complete Internet versions of the Emperor Justinian’s great Roman law collection (in Latin).
There are several keys to Professor Natelson’s success as a scholar. Unlike most constitutional writers, he has academic training not merely in law or in history, but in both, as well as in the Latin classics that were the mainstay of Founding-Era education. He works to keep his historical investigations objective. He also has the benefit of lessons and habits learned in the “real world,” since prior to entering academia he practiced law in two states, ran his own businesses, and worked as a journalist and at other jobs.
For about a decade, Professor Natelson had a career in public life in his “spare time.” He created and hosted Montana’s first statewide commercial radio talk show; became the state’s best known political activist; led, among other campaigns, the most successful petition-referendum drive in state history; and helped push through several important pieces of legislation. In June 2000, he was the runner-up among five candidates in the party primaries for Governor.
Recreation? he loves to spend time in the great outdoors, where he enjoys hiking and skiing with his wife and three daughters. He also likes travel, science fiction, and opera. He is active in the Denver Lyric Opera Guild.