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Pigs Can Fly!: The Sins Of Legal Scholars – Above the Law

(Image
via
Getty)

This
is
an
article
about
academic
dishonesty,
both
with
one’s
audience
and
with
oneself. It
is
about
the
goal
of
academia
being
advancement
of
knowledge
and
the
making
of
a
better
world. To
the
extent
other
things
are
sought,
such
as

external
validation
,
the
result
can
be
a
bastardization
of
that
which
we
ought
to
be
doing
and
perhaps
making
the
discipline
worse
off
deliberately
or
negligently.

Throughout
this
blog
post,
assume
an
author
has
written
an
article
about
pigs
flying. It
sounds
ridiculous. But
consider
how
an
author
could
tantalize
you
with
an
article
title
like
“On
the
Prospect
of
Porcine
Flight:
Rethinking
the
Impossible”
or
“Porcine
Aviation:
The
Politics
of
the
Previously
Unthinkable”
or
“Pigs
and
the
Potential
of
Porcine
Bumble
Bees.” Now
you’ve
got
something
to
tantalize
the
law
reviews!

Now,
how
to
write
that
article
as
quickly
and
with
maximum
splash
as
possible. Let’s
start
with
how
it
is
all
too
often
done:


  1. Misleading
    Title
    Clickbait.

    “Can
    Pigs
    Fly?
    The
    Truth
    Will
    Shock
    You!” No,
    it
    won’t,
    and
    the
    author’s
    claimed
    signal
    of
    excitement
    is
    misrepresentation. The
    asking
    of
    the
    question
    also
    misleads,
    as
    it
    suggests
    there
    is
    an
    open
    question
    worthy
    of
    an
    article.  

  1. Lying
    About
    Facts.
     “Pigs
    can
    fly.” “I’ve
    seen
    pigs
    fly.” No,
    they
    don’t. And
    no,
    you
    have
    not. You
    may
    have
    seen
    an
    image
    of
    a
    pig
    jumping
    in
    a
    lake,
    but
    that
    isn’t
    flight.
    (Note:

    Michael
    Sowa’s

    famous
    painting
    is
    called
    “Köhlers
    Schwein
    mit
    Ente”
    not
    “flying
    pig.”) Making
    up
    facts
    is
    perhaps
    the
    most
    dangerous
    and
    self-destructive
    thing
    you
    can
    do
    as
    a
    scholar. It
    can
    get
    you
    fired. It
    could
    get
    you
    sued,
    depending
    on
    your
    funding
    and
    the
    subject
    of
    your
    paper. And
    you
    might
    be
    the
    last
    person
    to
    know
    when
    your
    sin
    is
    discovered. But
    worse,
    you
    do
    real
    damage
    to
    the
    discipline.  

There
are
a
couple
of
prominent
examples.

Francesca
Gino
,
a
professor
at
Harvard
Business
School
who
studied
unethical
behavior,
was
called
into
question
for

falsifying
data

and
lost
tenure.
Eric
Stewart
at
FSU

similarly
lost
tenure

for
questions
about
data.

Ward
Churchill

was
fired
at
UC
Boulder
for
making
up
facts
as
well. But
his
story
runs
deeper,
as
information
he
claimed
was
true
about
himself
turned

out
to
not
be
provable


namely,
that
he
hailed
from
a
Native
American
background,
a
claim
genealogy
research
failed
to
prove
and
which
no
tribe
recognized.
Authors
have
even
been
accused
of

stealing
someone
else’s
story

as
their
own.  

Bottom
line,
once
you
publish
an
article
that
is
factually
untrue,
expect
your
scholarly
reputation
to
tank. You
might
be
read,
you
might
even
be
published,
but
you
won’t
be
trusted. And
that’s
the
best-case
scenario.  


  1. Misstating
    Theory.

    It
    might
    be
    intentional,
    but
    it
    might
    be
    based
    upon
    the
    limited
    knowledge
    of
    the
    author. This
    happens
    quite
    a
    bit
    when
    an
    author’s
    sources
    are
    not
    original
    sources. Namely,
    the
    author
    has
    read
    what
    others
    have
    said
    about
    some
    tome
    but
    failed
    to
    read
    the
    tome
    itself. This
    happens
    quite
    often
    in
    economics,
    where
    frequently
    few
    have
    bothered
    to
    read
    Marx
    or
    Marshall
    but
    have
    read
    quite
    a
    bit
    by
    others
    who
    claimed
    to
    have
    read
    them.  

Take
for
example
someone
citing
an
article
that
says,
“the
court
in

Brooks
v.
Foglio

took
judicial
notice
that
pigs
could
fly,
at
least
in
theory.” And
the
cited
article
even
quotes
the
case:
“The
Court
thus
takes
judicial
notice
of
the
following
facts:
pigs
can
fly
and
hell
has
frozen
over.”

Brooks
v.
Foglio
,
No.
CIV.A.
13-2504
JEI,
2013
WL
3354430,
at
*1
(D.N.J.
July
2,
2013). 
But
if
you
look
at
the
case,
this
pigs
statement
is
preceded
with:
“In
what
is
almost
certainly
the
first
lawsuit
of
its
kind,
Plaintiff
Marjorie
Brooks
alleges
that
her
insurance
company
paid
her
too
much
money
after
her
home
was
damaged
by
Hurricane
Sandy.” So
no,
that
doesn’t
mean
pigs
can
fly. More
on
this
later
when
I
write
about
the
heroic
assumptions
people
ignore.


  1. Not
    Citing
    Literature.

    “There
    is
    no
    literature
    that
    suggests
    pigs
    cannot
    fly.” “There
    are
    no
    serious
    studies
    that
    suggest
    pigs
    cannot
    fly.” These
    statements,
    flat-out
    ignoring
    literature,
    might
    impress
    those
    who
    publish
    your
    work,
    but
    to
    true
    scholars,
    you
    look
    like
    an
    idiot
    who
    has
    not
    done
    the
    most
    basic
    literature
    search. It
    is
    too
    common
    that
    authors
    do
    not
    realize
    there
    are
    other
    disciplines
    that
    have
    thought
    about
    these
    issues
    for
    longer,
    and
    are
    happy
    to
    limit
    their
    search
    only
    their
    own
    literature,
    where
    they
    are

    most
    comfortable
    .

Not
engaging
with
literature
that
contests
your
own
thinking
is
as
anti-intellectual
as
it
comes. This
often
leads
to
other
failures,
such
as
making
heroic
assumptions. And
it
is
often
based
on
the
next
sin
discussed,
not
reading
the
literature.

An
author
might
not
cite
literature
because
it
disproves
their
theory. An
author
might
not
cite
literature
because
they
stole
someone’s
idea
and
wants
to
claim
they
came
up
with
it
on
their
own. Both
are
sins
of
misrepresentation.


  1. Not
    Reading
    Literature. 
    Suppose
    the
    author
    cites
    a
    NASA
    study
    of
    zero
    gravity
    pigs
    on
    the
    International
    Space
    Station. But
    the
    author
    doesn’t
    read
    the
    paper,
    which 
    reveals
    that
    the
    pigs
    aren’t
    flying,
    they
    are

    technically
    free
    falling
    . The
    fact
    the
    author
    has
    failed
    to
    read
    the
    literature
    shows

    to
    those
    who
    have
    read
    the
    literature,
    although
    it
    might
    impress
    law
    students
    and
    other
    fellow
    travelers
    of
    the
    school
    of
    being
    an
    ignorant
    academic. By
    the
    way,
    “Pigs
    Can
    Fly”
    and
    Why
    Pigs
    Must
    Fly

    are
    legit
    articles. They
    just
    aren’t
    helpful
    here,
    because
    they
    are
    using
    the
    metaphor
    and
    are
    not
    speaking
    of
    pigs
    literally.

Moreover,
the
conditions
upon
which
the
pigs
are
doing
the
“flying”
are
quite
limited. One
does
not
often
encounter
pigs
on
the
Space
Station. And
those
conditions
rarely
hold
true
even
under
the
most
generous
(and
wrong)
definition
of
flying.  

As
a
corollary,
reading
requires


thinking

about
the
literature. That
means
not
immediately
rejecting
it
without
first
understanding
the
article’s
perspective. Using
a
sports
analogy:
Before
you
attempt
to
score
points,
you
should
probably
figure
out
the
rules
of
the
game
and
the
strengths
and
weaknesses
of
the
other
players.  

What
happens
in
the
academy
is
often
the
equivalent
of
what
children
do:
Side
by
side
or
parallel
play. Children
of
an
immature
age
will
play
near
but
not
with
one
another. “I’m
building
a
house,”
says
one. “I’m
drawing
a
house,”
says
another. And
that’s
it. This
is
what
happens
all
too
often
in
academia
as
well. Not
even
a
glance
over
at
the
other
professor’s
house
drawing
or
building. There
is
hubris
in
that:
“What
I
have
to
say
is
so
important
that
what
others
have
couldn’t
be
useful”
should
not
be
a
thing
in
academia.  

Lastly,
as
this
section
was
inspired
by
a
Bluesky
post
of
Professor
Josh
Sheppard
at
the
University
of
Colorado,
“Do
not
cite
an
academic
paper
unless
you’ve
read
it.”
Be
wary
of
citing
without
reading
for

AI
reasons

as
well.  


  1. Misciting
    Literature
    . Suppose
    the
    author
    cites
    a
    paper
    called
    “Pigs
    in
    Space:
    The
    Flight
    of
    Peppa.” Absent
    reading
    the
    article,
    the
    author
    has
    no
    idea
    that
    this
    is
    a
    (completely
    made
    up)
    children’s
    book. One
    example
    of
    my
    own
    is
    that
    I
    have
    a
    blog
    post
    titled

    “Use
    Racial
    Slurs
    In
    The
    Classroom!”
     The
    unscrupulous
    might
    cite
    me
    as
    a
    proponent
    of
    doing
    so,
    but
    even
    a
    quick
    glance
    shows
    that
    I’m
    dead
    set
    against
    it,
    and
    was
    mocking
    professors
    who
    were
    in
    favor
    of
    it.   

  1. Making
    Grandiose
    Claims.
     Many
    of
    the
    failures
    to
    access
    literature
    can
    lead
    to
    grandiose
    claims
    about
    scholarly
    contributions. 
    “My
    article
    is
    the
    first
    to…” No,
    it
    isn’t. Others
    have
    done
    similar,
    and
    the
    author
    is
    not
    narrowly
    defining
    their
    contribution.
    Making
    grandiose
    claims
    is
    easier
    to
    do
    with
    the
    ignorance
    of
    a
    poor
    literature
    search.

  1. Heroic
    Assumptions
    That
    Are
    Unrealistic. 
    “Pigs
    could
    fly. That
    requires
    some
    evolution
    for
    the
    pig
    to
    grow
    wings. The
    literature
    has
    already
    contemplated
    this:
    Numerous
    images
    throughout
    history
    show
    pigs
    with
    wings.” Okay,
    no. First,
    pigs
    having
    “wings”
    does
    not
    mean
    pigs
    could
    fly. Allow
    me
    to
    introduce
    you
    to
    the
    “flying
    squirrel.” You
    might
    think,
    “Well,
    allow
    me
    to
    introduce
    YOU
    to
    the
    bumble
    bee!,”
    but
    that
    ignores
    pigs
    are
    not
    in
    the
    same
    family
    (let
    alone
    genus)
    as
    pigs
    (look
    up
    bumble
    bees,
    flight
    vortex,
    and
    Bernoulli’s
    principle).
    Second,
    you’ve
    only
    accounted
    for
    lift,
    not
    weight,
    thrust,
    and
    drag. Third,
    there
    is
    no
    realistic
    evolutionary
    progression
    that
    allows
    for
    pigs
    to
    have
    wings. In
    short,
    no
    matter
    how
    complex
    your
    argument,
    it
    is
    bullshit. And
    often,
    laying
    it
    on
    thick
    with
    verbose
    text
    creates
    the
    ruse
    of
    intelligent
    thought. But
    it’s
    still
    bullshit.

Heroic
assumptions
often
happens
in
economics,
too. People
will
speak
of
how
easy
it
is
to
assume
a
zero-income
effect. But
there’s
enough
literature
out
there
(if
you
read
it)
to
recognize
if
you
do
this
you
are

assuming
a
spherical
cow
. Law
reviews
might
buy
it,
but
you
are
not
furthering
knowledge.  


  1. Asskiss
    Cites.
     These
    are
    cites
    designed
    to
    sway
    people
    who
    are
    big
    names
    in
    your
    field,
    but
    do
    not
    include
    the
    other
    folks
    who
    have
    written
    on
    it. And
    just
    dropping
    those
    names
    without
    engaging
    in
    the
    flaws
    or
    weaknesses
    of
    their
    theories
    clearly
    demonstrates
    you
    are
    citing
    them
    for
    the
    same
    reason
    a
    monkey
    holds
    a
    lightbulb


    not

    for
    illumination!

One
of
the
reasons
this
is
problematic
is
that
someone’s
reputation
is

not
an
argument
. “I
know
this
person
and
they
are
famous
and
therefore
are
correct”
is
anti-intellectual:
Many
famous
people
are
often
wrong,
and
there
is
no
law
professor
exceptionalism. Have
doubts? Look
up
how
many
famous
law
professors
made
very
bad
COVID-19
predictions.  

And,
merely
because
someone
has
become
famous
does
not
mean
that
the
quality
of
their
work
is
consistent
throughout
time
or
subject
matter.
Whether
the
work
trends
upward
or
downward
(“reputational
enshittification?”

sorry,
Cory
Doctorow)
depends
on
an
appraisal
of
the
work,
not
the
person.


  1. Sacrificing
    Accuracy
    For
    Speed.

    Doing
    scholarship
    correctly
    takes
    time.
    I’m
    grateful
    to
    Professor

    Anthony
    Kreis

    at 
    Georgia
    State
    for
    observing 
    the
    “hurry
    up”
    problem.
    Often,
    doing
    scholarship
    (and
    legislation,
    for
    that
    matter)
    right
    runs
    contrary
    to
    the
    desires
    of
    those
    who
    seek
    to
    make
    the
    world
    a
    worse
    place. Sloppy
    is
    fast
    and
    potentially
    popular
    and
    done
    right
    may
    not
    come
    in
    time
    to
    undo
    the
    damage. But
    it
    is
    invaluable
    to
    criticize
    that
    which
    is
    not
    done
    right,
    whether
    it
    is
    flawed
    assumptions,
    completely
    made-up
    facts,
    improper
    historical
    analysis,
    flawed
    methodologies,
    or
    other
    things
    that
    detract
    from
    the
    purposes
    of
    scholarship.  

Hey,
did
you
notice
none
of
these
long-standing
sins
have
much
to
do
with
AI? I
mean,
they
could,
but
the
problem
is
more
enduring
and
more
human.

Maybe
I
should
have
written
this
column
in

Pig
Latin.  





LawProfBlawg
 is
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