Seven habits of a highly effective scholar.

• Author: Israel, Jerold H.
• Position: Testimonial

Yale Kamisar has been my friend and colleague for almost forty years now, and my first inclination was to write about those relationships, which have meant so much to me. But I know that other friends and colleagues participating in this tribute issue can bring to the description of those relationships far greater skill and far greater eloquence. I have been Yale's coauthor for roughly thirty-five years on his professional "pride and joy"--Modern Criminal Procedure (1)--and that is another relationship that I could describe with warmth and affection. But Wayne LaFave, who has shared this same role, is also contributing to this issue, (2) and I know better than to compete with his wit, wisdom, and lexical expertise) There is, however, one relationship I have shared with Yale that is unique to the two of us. For most of Yale's time on the Michigan faculty, I have been his primary "sounding board" on matters of criminal procedure (as he has been mine). (4) I was his coauthor-in-resident, the primary person with whom he divided Michigan's criminal procedure curriculum, (5) and perhaps most importantly, the one person certain to challenge his views (whether or not I actually disagreed with him). (6) Since both of us learn best from an oral exchange of viewpoints, these circumstances led to endless discussions/debates in a variety of different places within the confines of the Cook Law Quadrangle. (7) Very often, these discussions focused on something Yale was writing or had written. (8) Prior to my taking on the responsibilities of treatise-writing, our discussions centered most often on substantive matters, as I was able to keep up, in a general fashion, with major developments in the law regulating police practices, although my research and writing dealt largely with other aspects of the criminal justice process. Keeping a treatise current, however, made that more and more difficult, and our discussions often turned to another very interesting (and often potentially contentious) topic--why Yale was writing about a particular topic and how his viewpoint would be presented. This was a natural offspring of our discussions over the years of the role and character of law review articles (particularly in connection with the question of which articles should be noted in Modern).

The end result is that, of all his colleagues and coauthors, I probably stand in the best position to describe Yale Kamisar's modus operandi in the realm of scholarship. I initially hesitated to take on this topic because of the risks involved. I knew that I would miss some nuances here and there, and on some points, might even be "dead wrong." With Yale's penchant for setting the record straight, (9) I ordinarily would expect a published response that would rip my description to shreds, and in the process, double the number of my footnotes. (10) But I have been assured by the editors that a Kamisar response will not be a part of this issue, and that assurance (although it unfortunately does not extend to future issues) has given me sufficient fortitude to proceed with the venture. Besides, I actually look forward to the many hours Yale and I will spend over the next several months in discussing/debating whether I have it "right."

My format for presenting Yale's modus operandi is borrowed from Stephen Covey's Seven Habits of Highly Effective People. (11) Here, of course, I am describing seven habits of a "highly effective scholar." That Yale has been a highly effective scholar is beyond dispute. His various academic awards, (12) the citations to his publications in both academic literature (13) and judicial opinions (14) (including many that arguably suggest an actual influence on the court's reasoning (15)), and many other indicators of his influence (16) readily earn him that appellation. More troublesome is the question of which of Yale's publications should be considered in describing the habits of his "scholarship."

Yale's portfolio of writings goes far beyond traditional scholarship. It includes close to forty magazine articles, appearing in both publications aimed at lawyers generally (e.g., The National Law Journal) and publications aimed at the general public (e.g, The Nation). (17) It also includes somewhere between fifty and a hundred op-ed pieces, (18) written primarily for the New York Times and the Los Angeles Times-Washington Post. These writings are important to Yale (his second ranked career choice, after law, was newspaper columnist (19)), and have been most successful in expanding the audience for his ideas. Three of his magazine articles were key contributions to special magazine issues that won the ABA's Silver Gavel Award, (20) and Time cited Yale's "many articles for magazines and newspapers" as one of his major accomplishments, when including him in its list of ten law professors who would "shape the future." (21)

These writings, however, although they may have contributed to Yale's effectiveness as a scholar, (22) clearly fall outside even a liberal definition of "scholarship," and my focus here is on the habits that have shaped Yale's scholarship. Certain other parts of Yale's portfolio, such as articles in publications written for criminal practitioners, (23) and encyclopedia entries, (24) might be described as scholarship, but they are aimed at a different audience than the more traditional scholarship and reflect somewhat different habits. My focus is on the modus operandi that shapes the paradigm of legal scholarship--law review articles and essays published elsewhere that are similar to law review articles. (25) For Yale, that is a hefty body of writing, consisting of roughly fifty articles, published in academic law reviews and collections of essays aimed at an academic audience. (26) Although it does not provide a perfect fit, I will also make occasional reference to how the same habits are reflected in Modern. (27)

Of course, focusing on only seven of the habits that contribute to Yale's scholarly writings also is somewhat arbitrary (although seven apparently is the magic number for best sellers of the self-improvement genre). (28) To stay within that limit, I have excluded the habits that are common to almost all successful scholars, such as extensive research and lucid writing. I have focused instead on habits which, although not unique to Yale Kamisar, clearly reflect his personality and his vision of the role of a scholar. The selected seven are presented not in order of significance, but in a sequence designed simply to reflect their interrelatedness.

1. Concentrating on a small group of basic issues. All but a handful of Yale's law-review-type articles deal with one of five basic issues: "mercy-killing"; the legitimacy and appropriateness of the Fourth Amendment's exclusionary rule; the disadvantages that the criminal justice system imposes upon the indigent; the criticism (particularly on efficiency grounds) of the Supreme Court's regulation of police practices; (29) and, of course, police interrogation and confessions. (30) Yale took on each of these subjects early in his career (31) and decided basically to stay with them and not branch out into other aspects of criminal law and criminal procedure (32). This was not due to a lack of interest in other areas. His op-ed pieces have dealt with a far broader range of criminal procedure issues, and even such basic First Amendment issues as school prayer. (33) His chapters in Modern extend substantially beyond the four criminal procedure topics that have been his law review specialities, and he has often called my attention to issues briefly noted in those chapters which, in his view, desperately needed better treatment in the literature.

   Yale often was tempted to take on additional issues, but he recognized that, with his mode of research, that could well keep him from getting back to his specialties as often as needed. For when Yale looks at an issue for the first time, his research agenda, simply put, is "to leave no stone unturned." (34) He takes the cases as far back as they will go, scours the literature for anything of possible relevance, and where the occasion calls for it, even reviews the trial record that eventually led to a major Supreme Court ruling. The end result is that he has far more basic information than can possibly be crammed into a single article. Of course, information which is excluded as not directly relevant to the current article is not thereby lost. It remains in Yale's notes and in his memory, and he usually will find a place for it in his next article on a slightly different aspect of the issue or in revisiting the issue in light of some later development. Simply put, after one or two articles on an issue, Yale has a tremendous research investment, and if a new project would stand in the way of future use of that investment, it will be rejected no matter how tempting that project. (35)

2. Acknowledging personal values and personal engagement. Yale Kamisar has never remotely suggested that he writes from a neutral, detached perspective. Yale acknowledges the Learned Hand model of the analyst who strips himself of the convictions that are a product of his past, (36) but he views that model as contrary to human nature (at the least, his human nature). (37) The better path is to openly acknowledge the overarching value judgments that guide the writer's analysis. Yale acknowledges that his own background leads him to be suspicious of governmental authority, particularly when that authority is exercised in low-visibility settings. (38) Thus, he quite naturally finds appealing a view of the Fourth, Fifth, and Sixth Amendments as provisions that impose broad restraints upon governmental authority, and thereby protect individual liberty. For him, the function of the Supreme Court, in particular, is to ensure that these restraints are applied in their basic thrust to new settings. The Supreme Court, he has noted, cannot...