Does It Matter What We Say About Legal Interpretation?

Abstract

Despite a common interest in justifying their scholarly output, legal academics have resisted seeing how their work is molded by the institutional environment in which it is produced, and not just by legal doctrine, ideology, or individual perspectives. This paper presents a case study from this neglected perspective, considering the shape of scholarship on legal interpretation in light of the social conditions of its production. After a brief discussion of the debates over whether scholarship (and which scholarship) matters, the paper explores how such concerns are addressed in various academic accounts of scholars' textual practices. It then offers some initial conclusions from an original study of the 154 most-cited articles on legal interpretation published in American law reviews. Early framings of the subject shaped later work in familiar ways. But the patterns disclosed by the citation relationships among the articles suggest some surprising conclusions. Scholars working in the area seem to understand their contributions in a way that is at odds with the institutional dynamics of their efforts. These patterns further indicate that legal academics' failure to develop a specifically legal scholarly discourse, in some respects a strength of legal scholarship, may carry seldom-noted risks in work on this topic.

Legal fictions and the limits of legal language

“…A few legal scholars have adopted similar approaches, especially to citation analysis, but legal scholars have not paid much attention to most of this work (see Petroski, 2012, pp. 368, 371, 374–78).…”