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Why the Sunstein Pick is Good For Legal Academics:
Like my co-bloggers, I'm delighted that Cass Sunstein has been selected to serve in the Obama Administration. I also wanted to point out that this is terrific news for other legal academics. Cass currently writes about 120 law review articles a year, all of which place in top journals, amounting to about 30% of the total placed articles in those journals. With Cass working full-time in Washington, I'm betting that his scholarly productivity will plummet. He might write as few as 20 articles a year! That means that there will be 100 more non-Cass placements free every year for the next few years for the rest of us, which gives other scholars a great opportunity to place their articles while Cass is working in government.
Dave N (mail):
Did Posner's output drop when he joined the federal bench? Just curious.
1.8.2009 7:03pm
Sunstein Skeptic:
Yeah, but all the ghostwriters who apparently have been drafting those 120 articles a year for Sunstein will then be hired by other professors to write the articles, meaning no net decrease in articles written.

Seriously -- see my posts, the rather meager defense of Sunstein against the charge of using ghostwriters offered by Prof. Frank Cross, and the comments of "Big Posner Fan," all under an earlier post, here:

http://volokh.com/posts/1231420422.shtml

I emphasize I have no direct evidence that Sunstein uses ghostwriters, but I've heard opinions to that effect from professors who've personally worked with him and it would be easy for him to deny it (as have, e.g., Posner, and Tushnet to a large degree, both in blog posts) if it wasn't true. It looks like the ball is in Sunstein's court on the issue. Again, see the informative comments from various people on the earlier thread before you dismiss the prospect that Sunstein's a heavy user of ghostwriters.
1.8.2009 7:20pm
CDR D (mail):
Professor Kerr,

While your post appears to be "tongue in cheek", and while I can understand that Professor Sunstein's colleagues and friends are delighted with his appointment, I have to be concerned because of his rather ambivalent position with regard to his fellow citizens' right to keep and bear arms.

In my view, anyone who does not trust his fellow citizens is himself not worthy of trust.

In that light, I view him in the same category as Eric Holder.

JMHO.
1.8.2009 7:24pm
Sunstein Skeptic:
JMHO,

If Sunstein's wrong on the 2d Am., I can see why that's an important issue if he's nominated to the Supreme Court, but why does it make him less qualified to review the pros and cons of particular kinds of economic regulations? I doubt he's going to be setting gun policy in this position.
1.8.2009 7:28pm
Steve:
In my view, anyone who does not trust his fellow citizens is himself not worthy of trust.

Why do you bear arms if you trust your fellow citizens? Afraid of getting mugged by a non-citizen?
1.8.2009 7:31pm
Hadur:
Sunstein Skeptic: this may shock you, but nobody in the real world cares if a law professor uses ghost writers. The use of ghost writers is well accepted in American society -- many famous authors use ghostwriters, as do virtually all celebrities who write books.

There is nothing illegal about using ghostwriters either.
1.8.2009 7:37pm
chicago grad:
Sunstein Skeptic: I had Prof. Sunstein for Administrative Law at Chicago and in class one day he came up with some theory about some of the cases we were reading. The next class — a few days later — he had written it up into ten pages or so of the beginnings of a law review article. (I believe it became his Virginia Law Review article "Chevron step zero".)

I never heard anything at Chicago about him using ghost writers, and I knew a few of his research assistants, who presumably would have known about it. He may have had people help him with citations, but that isn't unusual in the legal academy, and anyway, from my experiences with him in class he knew the cases off the top of his head, so I'd be surprised if he did too much of that.

Do you have any reason to think he takes credit for others' work other than his amazing productivity?
1.8.2009 7:46pm
CDR D (mail):
Why do you bear arms if you trust your fellow citizens? Afraid of getting mugged by a non-citizen?


Well, Stevie Smartass, I don't believe I claimed that I "bear arms".

I'd like to know I had the choice, though.
1.8.2009 7:49pm
HoyaBlue:
Jesus. 120 a year? Assuming that he doesn't work on the weekends (probably false, but for sake of argument) and that he takes 2 weeks vacation per year, that means he writes at a pace of almost an article every other day.

That does stretch the limits of plausibility. But if true, I feel very, very lazy right now.
1.8.2009 8:00pm
Guest101 [filling in for Sarcastro]:
Clearly anyone who fails to share 100% of my policy preferences is patently unfit to hold public office.
1.8.2009 8:00pm
Cornellian (mail):
Cass currently writes about 120 law review articles a year

120 per year??? That's more than two every week on average, with zero vacation. I don't see how that's humanly possible unless he's just dictating them, stream of consciousness style, and letting other people do all the research, editing, cite checking etc. Even then, it's an amazing, Posneresque level of output. Let's hope it's something in the water at U of Chicago and that Obama picked up a similar energy level from working there.
1.8.2009 8:01pm
Bob from Ohio (mail):

Do you have any reason to think he takes credit for others' work other than his amazing productivity?


You know, I saw dog tracks in the snow this morning. I didn't actually see the dog but he had been there.

He writes a law review article good enough for publication in a major journal every three days. Plus, a book a year. Plus teaching.

Some people will believe anything.
1.8.2009 8:09pm
Not120:
The 120 is clearly a joke, but he has appeared to have written 226 articles that show up in the Westlaw JLR database (searching au(cass &sunstein). He has 115 since 2000 alone - which is still a ridiculous amount, considering he has also published numerous books and contributed to several textbooks.
1.8.2009 8:12pm
Volokh Groupie:
@Cornellian

The post seems to be tongue in cheek. Otherwise Sunstein would be to publishing what santa claus is to gift giving.
1.8.2009 8:14pm
tarheel:
I'm pretty sure Orin was kidding about the 120 articles thing (and really the whole post, for that matter). Might be wrong, but I'm thinking it was a joke.
1.8.2009 8:14pm
Bill Dyer (mail) (www):
Soon enough, Prof./Czar Sunstein will be writing almost exclusively for bound volumes in U.S. Reports (and before they're published, their counterpart volumes of the Supreme Court Reporter). Then he'll not only no longer compete for law journal space, but constantly generate new topics for other legal academics to write about. Truly The One is bringing about the Best of All Possible Worlds.
1.8.2009 8:31pm
wolfefan (mail):
Bob from Ohio, among many others, seems to be the one who will believe anything....
1.8.2009 8:51pm
BGates:
nobody in the real world cares if a law professor uses ghost writers.

I look forward to reading that sentiment again in Barack Obama's foreword to the 2012 edition of "Dreams From My Father" by Bill Ayers.
1.8.2009 8:54pm
wt (www):
In defense of people who believed the number "120," there's nothing in the post itself that indicates that number to be tongue-in-cheek. I just assumed Sunstein was writing a lot of the shorter articles that appear in Greenbag or other law review articles sometimes.
1.8.2009 9:16pm
Jon Roland (mail) (www):
You guys are missing the key points. Now he will have a government department full of ghostwriters, and he can have them write not just law review articles, but pleadings. Keep up with that!

The second point is that you guys are going to have to get to work writing your own articles. What are you doing wasting your time blogging? :)
1.8.2009 9:23pm
Jon Roland (mail) (www):
By the way, if yuou need ideas for law review articles I've got a few hundred I can spare. My problem is that ill health makes it difficult for me to get to or spend a lot of time in the law library to do the cite research.
1.8.2009 9:41pm
AlanO:
I've always wondered about professors who publish enormous quantities of research - do their students truly benefit? Could Prof Sunstein do better by spending more time teaching and mentoring than writing articles that will only be read by a tiny minority of lawyers?
1.8.2009 9:46pm
Thales (mail) (www):
I mentioned this in the other thread, but Skeptic has presented nothing but rumor and innuendo to support his allegations of Sunstein's scholarly borrowing or fraud . .. got anything more Skeptic? If not, I think it's high time to drop it.
1.8.2009 9:50pm
Steve Donohue (mail) (www):
By all accounts, Sunstein is a mediocre or worse lecturer.
1.8.2009 9:50pm
Katl L (mail):
120 per year??? That's more than two every week on average, with zero vacation
Well, recycling alows you to do that. if you have read one article you have read almost the 120. They are more or less the same.
Copy and paste will also help you.
And of course using a ghost writtter is cheating, illegal or not. And he gained tenure by his works. We are not taking about Jenna Jameson or Paris Hilton Memoirs. BTW, they ackowledged the ghost writter
1.8.2009 9:58pm
Hauk (mail):

Why do you bear arms if you trust your fellow citizens? Afraid of getting mugged by a non-citizen?

Well, Stevie Smartass, I don't believe I claimed that I "bear arms".

I'd like to know I had the choice, though.

Nonresponsive. Instruct the witness to answer the question.
1.8.2009 10:08pm
Hauk (mail):
And, incidentally, with respect to the topic of whether it's feasible to write 120 articles a year: as a former law review editor, I've seen the sorry state that some articles arrive in before they're massaged into something passable. While 120 a year stretches the limits of credulity, it's not hard for me to imagine that a respected (and talented) law professor could type up a rough draft of an article in a couple of days and get it accepted at a law review where the student editors polish it off.
1.8.2009 10:13pm
David Warner:
Sunstein Skeptic: this may shock you, but nobody in the real world cares if a law professor uses ghost writers. The use of ghost writers is well accepted in American society -- many famous authors use ghostwriters, as do virtually all celebrities who write books.

There is nothing illegal about using ghostwriters either.

Hadur? Who's that?
1.8.2009 11:15pm
David Warner:
Sunstein's got nothing on this guy.
1.8.2009 11:18pm
Hoosier:
120 per year??? That's more than two every week on average, with zero vacation. I don't see how that's humanly possible unless he's just dictating them, stream of consciousness style, and letting other people do all the research, editing, cite checking etc.

Yep.

I think that this total is definitely bad for legal academics. 30% of articles in top journals by one man? Say it ain't so, Joe!

If this is correct, my estimation for the scholarship of law professors has plummeted tonight. There is no way that this would be possible in a rigorously "policed" field.

In my fieled, four or five articles in good journals during a single year would be hugely impressive. Two would keep any dean happy.

Granted, we also have to write books, so that eats up time. But counting chapters as roughly equivalent to articles in terms of effort required, that gets a superstar to perhaps nine or ten.

How thoroughly disturbing.
1.8.2009 11:23pm
Hutz:
I've edited a Sunstein article while working on a law review. I can't imagine why he would need ghost writers, he's got law review editors.

If my experience was typical, and I have no reason to doubt that it was, the "articles" that Sunstein sends to law reviews are really:

1) 5-10 pages of well-written introduction expressing an interesting idea. The introduction tends to take the form of an essay, with fairly few citations. It is followed by,

2) The body of the article, which, on second read, sounds like stream of consciousness with lots of citations. On second read, it is a mix of (a) stream of consciousness with few if any citations and (b) concepts and citations lifted directly from other articles he's written.

Law reviews accept his articles because he's Sunstein and the well-written introduction reassures student editors that they've got something hot. Even if one notices (2) at the time of submission, it's still a Sunstein article.

Just to be clear, I think he's a brilliant guy, but not because he has the ability to churn out great, carefully written articles in quantity. Instead, it's because he's got so many great ideas that can blossom into strong articles with the care and tending of diligent student editors.
1.8.2009 11:24pm
Hoosier:
David Warner:
Sunstein Skeptic: this may shock you, but nobody in the real world cares if a law professor uses ghost writers.


By "real world" I assume you mean outside academe. But Sunstein has not been out of academe. Which is the point, because the use of ghostwriters raises issues of academic integrity in the "unreal world" in which Sunstein is currently employed.

I couldn't care less if my postman uses steroids. But I do care if Barry Bonds does so.
1.8.2009 11:27pm
a knight (mail) (www):
LOL
1.9.2009 12:27am
man from mars:
I've written a lot of blog comments.
1.9.2009 5:12am
Public_Defender (mail):

I'm pretty sure Orin was kidding about the 120 articles thing (and really the whole post, for that matter). Might be wrong, but I'm thinking it was a joke.

A year or two ago, I seem to remember a post by Volokh about the dangers of sarcasm in web posts. Sometimes you just can't tell. I initially thought that Kerr was serious, but the silliness of saying someone wrote a law review article every other working day is pretty clear once you think about it.

That said, this is how Internet rumors get started. I can see Fox and Friends and Hanity starting diatribes with, "It's said that Sunstein wrote 120 law review articles a year. . . ."
1.9.2009 5:45am
Hoosier:
Public

I have clearly been pwned.
1.9.2009 7:08am
David Warner:
Hoozsche,

Hate to pile on, but I wasn't being serious either. I was merely hiring an unwitting Hadur as my ghostwriter, evidently unbeknownst to you - which illustrates my point.
1.9.2009 7:24am
Hoosier:
Well, in my defense, may I just point out that I'm an idiot.

And that Orin Kerr is my sock puppet. Which makes my response to his thread rather more incomprehensible.
1.9.2009 8:22am
krs:
My biggest complaint about the Bush Administration over the past 8 years is that it hasn't generated enough law review articles. Its record on that score is abysmal and shall live in infamy. Cass Sunstein at OIRA represents change we can believe in. And lots of footnotes.
1.9.2009 8:55am
f.d.rizzle:
If law reviews used blind submissions, half the "articles" Sunstein submits in any given year wouldn't get picked up. Anywhere.

On the other hand, if Sunstein focused on writing three articles a year instead of, say, twenty, I imagine that each of those three would be spectacular and worthy of publication in HLR/YLJ in their own right.

For some reason, a number of UChicago profs follow the Sunstein model and submit articles that look like the product of a twenty minute conversation over coffee rather than workshopped and well researched scholarship.
1.9.2009 9:51am
Patrick216:
Sunstein:

The SG does a lot more than simply don his morning coat and go argue in the Supreme Court. The SG coordinates the Government's appellate efforts as a whole, and is an extremely public policy-oriented position. If Sunstein hates gun rights, he may very well push every appellate issue hard that results in a contraction of gun rights.
1.9.2009 9:52am
Bob from Ohio (mail):
I just fired the ghostwriter who wrote my first comment.
1.9.2009 9:56am
Sol:
"amounting to about 30%"

Come on, that's hilarious. Almost as funny is that people fell for it.
1.9.2009 10:25am
Sol:
If he is ever a Judge, with statistics like that, can you even imagine the size of the case reporters.
1.9.2009 10:29am
Sara:
"That said, this is how Internet rumors get started. I can see Fox and Friends and Hanity starting diatribes with, "It's said that Sunstein wrote 120 law review articles a year. . . ."

Not that that's a bad thing. When people run with a "fact" like that, it exposes them to the ridicule they deserve.
1.9.2009 10:46am
Anon321:
The SG does a lot more than simply don his morning coat and go argue in the Supreme Court. The SG coordinates the Government's appellate efforts as a whole, and is an extremely public policy-oriented position. If Sunstein hates gun rights, he may very well push every appellate issue hard that results in a contraction of gun rights.

If Sunstein had been nominated to be the Solicitor General, that might be a relevant point. But he wasn't. He was nominated to be the head of the Office of Information and Regulatory Affairs, where he will have no discernible role in setting the federal government's litigating positions.
1.9.2009 11:16am
Thales (mail) (www):
Sara writes: "Not that that's a bad thing. When people run with a "fact" like that, it exposes them to the ridicule they deserve."

Often true, but Hannity persists in having a prime time show with a multimillion dollar salary and loyal audience, despite his numerous documented lies and inconsistencies, patently subpar intelligence and vacuous and brutish personality. So he may get the deserved ridicule from some people, but not the deserved consequences of winding up the victim of a televised fraud.
1.9.2009 2:40pm
Bleepless:
The book Manipulated Science was an interesting look at the USSR. One section on bureaucratic fraud mentioned some desk jockey who allegedly wrote or co-wrote on average one science article every six days for years. What a man!
1.9.2009 6:07pm
CDR D (mail):
Why do you bear arms if you trust your fellow citizens? Afraid of getting mugged by a non-citizen?

Well, Stevie Smartass, I don't believe I claimed that I "bear arms".

I'd like to know I had the choice, though.


Nonresponsive. Instruct the witness to answer the question.



Well, yer 'onor, it's like this...

The questions which were posed are nothing more than a shabby attempt to lead the witness by resorting to flawed premeses.

a) I do do not "bear arms" in public places;

b) I am not "afraid" of being "mugged"; and

c) I do not consider "muggers" to be my "fellow citizens", certainly not in any moral sense.

If that's not responsive enough for yer 'onor, well, yer 'onor will just have to lump it.
1.9.2009 6:46pm
CDR D (mail):
Clearly anyone who fails to share 100% of my policy preferences is patently unfit to hold public office.


Oh, that's not really clear at all. It's just that certain fundamental issues are sine qua non.
1.9.2009 7:00pm
Retired LEO (mail):
I'm sure there important work in the Office of Information and Regulatory Affairs for a scholar to do.

Does anyone know what the OIRA is? From the org chart description, if the gentleman is as good as his reputation, he is overqualified. His 1st recommendation should be to abolish the OIRA.
1.10.2009 11:11pm

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