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The Federal Bias In Criminal Law Scholarship

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3 Responses

  1. Bubba says:

    I too have noticed that the criminal scholarship circulating in the law review realm is overwhelmingly federal. It seems like there would be almost a “trickle down” effect as state decision makers are able to refer only to the federal-centric commentary. I agree that there needs to be more state-focused scholarship. If there really is a trickle down effect, I think the beneficial side effects of our federalist system will be suppressed…

  2. Seth R. says:

    Academics focus on the federal level because they tend to be a bit elitist.

    All that runny-nosed populism at the state level disgusts them and they’re hoping that the federal system will step in and protect them from the raving barbarians.

    They’re really no different from the Sierra Club in this respect.

  3. bjr says:

    One potential explanation for the dearth of state-specific criminal law scholarship is the limited journal market for these articles. Many states, whose own law schools will be the primary market for state-specific pieces have a very small number of law schools, and therefore law reviews. This may decrease the odds of acceptance. (I am assuming that editors at the University of Washington Law Review is unlikely to be especially interested in an article focusing on the criminal law of Idaho) Moreover, some of these geographically isolated journals are not highly ranked, dereasing the rewards of acceptance.

    The prospect of writing for such a small market, with the limited rewards that come from what may be perceived as mediocre placements, therefore operates as a disincentive to expend the time and energy writing state-specific criminal law articles. (My feeling is that the bulk of this scholarship takes the form of sudent notes.)

    The answer may lie in broadening the applicability of the topic. There are two obvious ways to do this: (1) conduct a comparative anaysis or state survey, or (2) link the state issue back to a federal issue. I am currently attempting to do the latter, but I still worry about acceptance by the two journals in my geographical target audience (although quality of placement is less of an issue here, there is an inverse relationship to the prospect of acceptance) and the limited specialty journals whose editors might be interested.

    In sum, I believe that until the journal editors who comprise the first audience for whom scholars must write either solicit or prove willing to accept articles on state criminal law on a regular basis, we will not see an increase in such scholarship.