If Research Agenda Were Honest.

• Author: Tran, Jasper L.

Had da Vinci been alive today, he would unquestionably say that a scholar "who loves practice without theory is like the sailor who boards ship without a rudder and compass and never knows where he may cast." (1) Accordingly, it is unsurprising that aspiring scholars are often asked: What is your research agenda? (2) In my field of intellectual property law, for example, the proper response may be that my research interests, informed by my education (3) and experience, (4) are in patents and litigation. In particular, my next three research projects may be along the lines of: (1) efficiencies and trade-offs between ex ante patent regulation and ex post litigation, (5) (2) the nexus among patent, litigation reform, and separation of powers, and (3) litigation's role in the U.S. innovation economy. (6)

While these research areas in and of themselves (7) appear terribly interesting (at least on paper), the research agenda, needless to say, comes with the usual implied caveat that it may very well change--or perhaps become more refined--in light of the unearthed research, (8) or potential future changes in law, (9) either by legislation (10) or by courts. (11) Indeed, if Sisyphus were a scholar, his field would be patent law. (12)

But if my research agenda were honest, (13) my response would unapologetically (14) be that I have no research agenda (15) and that I, like Toni Morrison and possibly many others, mostly write about what I want to read that has yet to be written. (16) To wit, I do what I like--write what I like to read, read what I like to write, praise the readings I like, and criticize the readings I dislike. (17) Instead of writing for the public (or more precisely, for legal academics) or for editors, I write for myself. (18) Rather than asking "What does the public want?" or "What do the editors want?" I ask "What do I want to say? What is there in my heart craving for expression? What have I lived or felt or thought that is my own, and has its root in my inmost being?" (19) As one's own ideas, especially on perspective and whole view, change as she gains experience,* (20) her writings after all become just little fragments of her fleece left upon the hedges of life. (21)

To turn this footnote-heavy (22) essay (23) into publishable scholarship, (24) it should also have a roadmap paragraph like a proper law review paper. (25) Without further ado, (26) Part I traces the historical origin of requesting research agenda in higher education institutions, including law schools, (27) to make certain noncontroversial and thus obvious claims that are esoteric but well-cited; it has been removed for clarity's sake. (28) Part II explains the rationale behind the traditional imperatives of the research agenda's requirement, their essentially unreadable verbosity, and their unnecessarily long format. (29) "This part is so dense and yet flaky it has swallowed itself in a Dough-Boy vortex and is now believed to be part of a legal theory pound cake, inferentially observed only by occasional citation from authors attracted to its buttery goodness." (30) Part III is the sole original thought in this entire essay, but it appears both underdeveloped and fairly trivial when compared to the general tradition of legal scholarship. (31) This part basically amounts to arguing that drafting a research agenda that may eventually be scrapped not only is pointless but also tends to suck; it too has ultimately been omitted for lack of support. (32) Part IV briefly--but not tautologically--concludes. (33)

IV. If Research Agenda Were Serious and If Judges Were Honest (34)

A proper conclusion to any work of scholarship ought to say something insightful (35) about potentially fruitful avenues for further research. (36) To that end, if my research agenda were 34 35 36 serious, this essay might (37) merely be the first in a series (38) on, for example:

* if-the-law-was-honest, (39)

* if-law-schools-were-honest, (40)

* if-law-reviews-were-honest, (41)

* if-law-students-were-honest (or if-law-review-editors-were-honest (42)),

* if-intellectuals (43)--were-honest (44) (or if-law professors-were-honest (45)),

* if-judges-were-honest (46) (or if-judicial-opinions were-honest (47)),

* if-lawyers-were-honest (48) (or if-associates-were-honest), (49)

* if-state-bars-were-honest, (50)

* if-law-firms-were-honest (51) (or if-partners-were-honest (52)),

* if-secretaries-were honest, (53)

* and if-clients-were-honest (54) (including if-defendants-were-honest and if-plaintiffs-were-honest).

But (55) that was only if I were being completely honest. (56)

Actually, the intellectually fearless Richard A. Posner (who is eminently more qualified) has already written a whole book on the topic of if-judges-were-honest, (57) so I would just read his book and probably skip this one. Consider some (58) of his potentially nonobvious professions (or more precisely, confessions), observations, or generalizations of how he, as a judge, thinks if he were to be honest about it:

* "Most judges who oppose abortion rights do so because of religious belief rather than because of a pragmatic assessment of such rights." (59)

* "A judge in a nonjury proceeding who has to decide whether to believe a witness's testimony will often have formed before the witness begins to testify an estimate of the likelihood that the testimony will be truthful." (60)

* Judges are more inclined to convict a criminal defendant than jurors because "judges learn that prosecutors rarely file cases unless the evidence against the defendant is overwhelming." (61)

* "[J]udges whose background is law teaching rather than private practice tend to be harder on the lawyers who appear before them." (62)

* "Appellate judges promoted from the trial court may be more likely than other appellate judges to vote to affirm a trial judge." (63) And "a former trial judge promoted to the court of appeals may be more likely to focus more on the 'equities' of the individual case ... and less on its precedential significance than would his colleagues who had never been trial judges." (64)

* "Most judges blend the two inquiries, the legalist and the legislative, rather than addressing them in sequence." (65)

* "Accustomed to making nonlegalist judgments in the [nonroutine cases], the judge is likely to allow nonlegalist considerations to seep into his consideration" of the routine case. (66) Yet, "many, maybe most, judges would if asked deny that they bring preconceptions to their cases[.]" (67)

* "Intuition plays a major role in judicial as in most decision making." (68) In fact, "most judges are (surprisingly to nonjudges) unmoved by the equities of the individual case," and "few judges are fully inoculated against the siren song of an emotionally compelling case." (69)

* "Judges like to refer to" the other two branches "as the 'political branches,' as if the federal judiciary itself were not a politically powerful branch of government." (70) Put succinctly, "judging is 'political.'" (71)

How about the following entries from a representative sample of other judges, the first of which was Posner's colleague?

* Judge Diane Wood: "Justices who publish separate opinions are always addressing the future--maybe the distant future, maybe the immediate future, but never the immediate outcome of the case before the Court. That battle has been waged and resolved." (72)

* Judge Dennis Jacobs: "[T]he problem at bottom is really a lack of respect by lawyers" and judges for laypersons. (73) "Judges need a heightened respect for how nonlawyers solve problems, reach compromises, broker risks, and govern themselves and their institutions." (74) To wit, judges and "lawyers lack humility in approaching great matters" of "the moral imagination; the scientific method; the practical arts of healing, politics, and entrepreneurship; the promptings of loyalty, faith, and patriotism; and the experience and expertise found elsewhere and among others." (75)

* Justice Roger Traynor: "The fiction that a court does not make law is now about as hallowed as a decayed and fallen tree" because "a modern judge is quite aware that his customary language indeed makes law." (76)

* Justice Robert H. Jackson: "[D]ispassionate judges" are "mystical" beings, just like "Santa Claus or Uncle Sam or Easter Bunnies." (77)

It should be clear by now that I could go on, but life is short, (78) time is limited, and less often means more (79)--though literally speaking, less also means less. (80) Enough has been said about my research agenda. The point should have been not only easy to see but also impossible to express in just several words. (81) To say any more would probably spoil it. (82) I shall therefore neither test your patience nor doubt your intelligence. (83)

Nonetheless, in thinking about what is, and is not, properly a research agenda, I want to leave you Gentle Reader (84) with something to pore over and chew on--a story "about the boy who had an irrational fear of kreplach, a Jewish dumpling that makes many mouths water. His mother, determined to overcome the problem, showed him the ingredients" of just dough and meat. (85) He observed with equanimity as she "folded one corner of the dough over the meat, and then a second and a third. Then the mother folded over the final corner. The boy's face turned red. 'Kreplach!' he screamed, and ran in terror from the room." (86) Now, "[t]hree folds make an interesting exercise, but they only bring us to the periphery of the problem; until the fourth fold, the meat and dough just aren't kreplach." (87) The ultimate question is whether this honest essay has successfully garnered that last fold and turned into a research-agenda kreplach. (88)

Jasper L. Tran ([dagger])

([dagger]) Jasper L. Tran is an associate at Milbank LA. The usual obligatory (throat-clearing) disclaimers apply, including those you, Gentle Reader, typically use or are thinking of.

(1) See Leonardo da Vinci Fellowship Research...