The irrelevance of Kagan's modest scholarly record

Why the Supreme Court Justice nominee's 350 pages of legal works, cited 600 times, don't matter

Published May 11, 2010 10:20PM (EDT)

This was originally posted in Concurring Opinions

How many scholarly articles (five, four or three) has Elena Kagan, the President’s Supreme Court nominee, published? How many years had she been an academic before becoming Solicitor General last year (eight, eighteen or something in between)? What does it matter?

In her career, Kagan has written a total of about 350 pages of legal scholarship that has been cited a total of about 600 times. People seem to disagree about what this scholarly oeuvre adds up to: close to nothing (e.g., Paul Campos), something quite substantial (e.g., Eugene Volokh), or not particularly remarkable in either direction (e.g., Erin Miller).

People also disagree about which of her various pieces count as major articles (the foregoing commentators count three, four and five, respectively) and even disagree about how to define her years in the academy (eight, netting out all government and decanal service, or as many as 18, dating from her first appointment).

There is no mystery about what Kagan has published—a full list including every sort of piece appears at the SCOTUS site; a more selective one appears at the Harvard Law site; another appears below. Disagreement concerns what it means—like the couple receiving marriage counseling in Woody Allen’s Annie Hall.

In my view, as a scholarly record, though it warranted awarding promotion and tenure to a junior faculty member, it would not warrant offering Kagan a lateral tenured appointment at most national law schools in the country today. But that opinion and the record are simply irrelevant to the question of her qualifications to serve as Associate Justice of the Supreme Court of the United States.

The scholarly part of Kagan’s career can be summarized briefly (and legal scholars familiar with how legal scholarship is usually placed will notice absence of any indication that Kagan is familiar with that process):

(1) Kagan’s tenure file consisted of: a modest Supreme Court Review piece in 1992 to start her career, a book review in a non-traditional journal in 1993, two modest pieces in her home school’s law review in 1993 and 1995, and a culmination of those two in that same home journal in 1996; and

(2) post-tenure, after service in government, Kagan returned to academia—to Harvard—where her record consists of two 2001 pieces, an impressive co-authored piece in Supreme Court Review and a wildly-ambitious and successful piece in her home school’s law review (where she was then moved to serve as Dean).

That is a perfectly fine scholarly record but not exactly one to which young legal academics should aspire. The tenure file may have been satisfactory but was not overwhelming. And the aggregate today would not count clearly favorably toward an appointment as a lateral tenured faculty member at most national law schools. True, Kagan’s public service and administrative record likely would count favorably for an appointment (and many Deanships will await Kagan if her current ambitions disappoint) but the net scholarship now is light.

Yet it does not matter that appointment as a lateral tenured law professor on this scholarly record would be uncertain. What it takes to be considered a successful law professor is totally different from what it takes to succeed as a judge or justice (or Dean, for that matter).

Elena Kagan’s Law Review Articles (Reverse Chrono Order)

Presidential Administration, 114 Harvard Law Review 2245 (2001) (when she was a professor at Harvard; 122 pages; cited 306 times)

Chevron’s Nondelegation Doctrine, 2001 Supreme Court Review 201 (2001) (co-authored; journal edited and published by Chicago law faculty, where she previously taught; 56 pages; cited 80 times)

When a Speech Code is A Speech Code, 29 UC Davis Law Review 957 (1996) (8-page symposium piece; cited 4 times)

Private Speech, Public Purpose The Role of Governmental Motive in First Amendment Doctrine, 63 Chicago Law Review 413 (1996) (when she was a professor there; this paper builds on the two listed below discussing the R.A.V. case; 82 pages, cited 119 times)

Confirmation Messes: Old and New, 62 Chicago Law Review 919 (1995) (15-page book review, while she was a professor at Chicago; cited 10 times)

A Libel Story, 18 Law and Social Inquiry 197 (1993) (21-page book review) (cited once)

Regulation of Hate Speech and Pornography after R.A.V., 60 Chicago Law Review 873 (1993) (23 pages; cited 27 times)

The Changing Face of First Amendment Neutrality: R.A.V. v. St. Paul . . ., 1992 Supreme Court Review 29 (1992) (cited 30 times)

By Lawrence Cunningham

Lawence Cunningham is a Professor of Law at the George Washington University Law School.

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Elena Kagan