Osler's Razor

In response to my post about legal scholarship, my former Baylor student Jeremy Masten posted something that was better than my own musings (the same can be said of David Best's comment on last week's Political Mayhem Thursday).  As background, you should know that Jeremy wrote an excellent law review piece about Queso's Law.  For those of you who have forgotten (or never knew), Queso was a cat who lived behind the La Fiesta restaurant in Waco and was abused by some Baylor students.  Here is what Jeremy had to say:

There is a problem with the thesis. Law reviews are not "the primary repositories of legal scholarship." (Unless you tautologically define legal scholarship as the stuff in law reviews.) Nor should they be. The life of the law has not been logic, and all that. It seems to me that the primary repositories of legal scholarship are judicial opinions (which, I would argue, have the most effective peer-review system out there). Just about every appellate court in America has some scholar-in-robes yearning to be Marshall or Cardozo (and usually doing alright at it).

Practice guides are a close second. (But maybe that's like saying that medical journals are a close second to the hospital wards as repositories of medical scholarship.)

So what are law reviews good for? I think two things: (1) criticizing ideas that have escaped review for some reason and (2) predicting ideas that haven't been reviewed yet. (I might cite to a clever analysis of Queso's law in Texas, but that would only be self-aggrandizing.)

Besides, according to Westlaw, my article has exactly 0 citations. But my email has in it somewhere a nice note from a justice of the Texarkana Court of Appeals thanking me for my concise explanation of the Texas version of the ban on cruel or unusual punishment.

So there.