Research is something we all do. Some research is a necessary evil, some a delightful passage, some unmitigated drudgery. Our general concern this evening is to hone the concept of legal research, at least as it is manifested by law professors and lawyers. More specifically, how does academic research and advocacy research differ in the world of law and what unique obligations might such differences suggest for the law professoriate? The general issue is the difference, perhaps conflict, between research aimed primarily at discovering truth and expanding knowledge versus research aimed primarily at mounting an argument to achieve victory for a client or some law reform goal. Academic research permits the researcher to define the topic and the important points to be studied, and encourages the researcher to report everything found of any value to the field. Advocacy research typically begins with a narrowly drawn topic and issue, and the researcher is encouraged to report only the findings which bolster the advocate\u27s primary argument, either greatly discounting or remaining conveniently silent about conflicting evidence

Streib, Victor L.

English

Cleveland-Marshall College of Law

Cleveland State UniversityEngagedScholarship@CSUCleveland State Law Review Law Journals1988Academic Research and Advocacy ResearchVictor L. StreibCleveland- Marshall College of LawFollow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrevPart of the Legal Writing and Research CommonsHow does access to this work benefit you? Let us know!This Article is brought to you for free and open access by the Law Journals at EngagedScholarship@CSU. It has been accepted for inclusion inCleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact library.es@csuohio.edu.Recommended CitationVictor L. Streib, Academic Research and Advocacy Research, 36 Clev. St. L. Rev. 253 (1988)available at https://engagedscholarship.csuohio.edu/clevstlrev/vol36/iss2/5ACADEMIC RESEARCH AND ADVOCACY RESEARCHVICTOR L. STREIB*I. PERSONAL EXPERIENCE .............................. 253II. ACADEMIC RESEARCH BY LAW PROFESSORS ................ 255III. ADVOCACY RESEARCH BY LAWYERS ..................... 256IV. IMPLICATIONS FOR LAW PROFESSORS ..................... 256V. So How ARE WE DOING? . . . . . . . . . . . . . . . . . . . . . . . . . . . .  258VI. EPILOGUE: CONFESSIONS OF A SINNER .................... 258R esearch is something we all do, whether for buying a new car,choosing a favorite wine, or agreeing to marry an attractive lover.Some research is a necessary evil, some a delightful passage, someunmitigated drudgery. Our general concern this evening is to hone theconcept of legal research, at least as it is manifested by law professors andlawyers. More specifically, how does academic research and advocacyresearch differ in the world of law and what unique obligations mightsuch differences suggest for the law professoriate?The general issue is the difference, perhaps conflict, between researchaimed primarily at discovering truth and expanding knowledge versusresearch aimed primarily at mounting an argument to achieve victory fora client or some law reform goal. Academic research permits theresearcher to define the topic and the important points to be studied, andencourages the researcher to report everything found of any value to thefield. Advocacy research typically begins with a narrowly drawn topicand issue, and the researcher is encouraged to report only the findingswhich bolster the advocate's primary argument, either greatly discount-ing or remaining conveniently silent about conflicting evidence.I. PERSONAL EXPERIENCELet me provide fair warning about my personal goals in this inquiry. Ihave thought about this issue for most of my seventeen years as aprofessor, occasionally defending the adversarial tone of my scholarlywriting, often admiring the attempts at value-neutral writing by other* B.S. Auburn University; J.D., Indiana University; Professor of Law, Cleveland-Marshall College of Law, Cleveland State University. This commentary was delivered as theSecond Annual Faculty Lecture at a program entitled "A Celebration of Scholarship" heldat Cleveland-Marshall College of Law at Cleveland State University on February 18, 1988.1Published by EngagedScholarship@CSU, 1988CLEVELAND STATE LAW REVIEWscholars, and condescendingly ridiculing the thinly-veiled adversarialgoals of most law review articles.During the past two years I have had to face this issue more directly inmy own work. For over a decade, beginning in 1976, my professorialresearch and writing largely concerned the issue of the death penalty forjuvenile offenders. I began with the goal of discovering everything aboutits history and current practice as well as the relevant law and policyissues. As I carefully documented this phenomenon, I fought against myinclination to roundly condemn it as barbaric, unamerican, and otherwiseoutrageous. I continued to remind myself that my obligation was to reporteverything-the good, the bad and the ugly.A year and one half ago I was finishing the final edit of my book' on thissubject. As I painstakingly checked and double checked each footnote,each statistic, I also reworded any text that revealed too baldly my truefeelings about the need to end this practice. I did allow my adversarialside relatively free rein in the final chapter 2 but otherwise tried to hewthe work to the idealistic model of the detached, uninvolved academicresearcher.A few weeks after finishing the final edit of the book I was invited tobecome involved as co-counsel for a juvenile actually on death row.3 1 hadrepeatedly refused such requests in the past, fearing that the role ofadvocate with my client's very life on the line would render even moredifficult my efforts to live up to the value-neutral model of the academicresearcher. But the academic research and writing was over, the case wasa particularly good one for appellate review, and I thought the experiencewould be a good refresher for me on the real world of lawyering.As many of you know, I did agree to serve as co-counsel. I worked forseveral weeks on the petition for certiorari and then worked for severalmonths on the briefs. The case was argued before the United StatesSupreme Court on November 9, 1987, and the decision may be handeddown any day now.4 My six months of intensive advocacy research andwriting on that case made clear to me the real world differences betweenadvocacy research and academic research and the schizophrenia suchdifferences induce in the lawyer/law professor who attempts both.Before continuing with the tale of my personal saga down thistreacherous path, let me return to some fundamental principles andguideposts for these two quite different endeavors.1 V. STREIB, DEATH PENALTY FOR JUVENILES (1987).2 Id. at 184-89.' Thompson v. Oklahoma, 56 U.S.L.W. 4892 (U.S. June 29, 1988), vacating andremanding 724 P.2d 780 (Okla. Crim. App. 1986).4 Editor's note: The case was decided on June 29, 1988. See Thompson v. Oklahoma,108 S. Ct. 2687 (1988).[Vol. 36:2532https://engagedscholarship.csuohio.edu/clevstlrev/vol36/iss2/5ACADEMIC AND ADVOCACY RESEARCHII. ACADEMIC RESEARCH BY LAW PROFESSORSWe are law professors and lawyers. While trained primarily, and in mycase solely, to be attorneys at law pursuing the interests of clients invarious adversarial or quasi-adversarial settings, we find ourselves in therole of university professors whose subject happens to be law. Universityprofessors in other disciplines typically are not only well-trained in theirfields, but are socialized in their graduate programs to fulfill the researchand writing expectations of university professors. By and large, lawprofessors do not have that experience. We are trained advocates func-tioning in an academic world that values non-adversarial exposition andinquiry.Law professors' professional lives are continually drawn in a variety ofdirections. First, they are expected to teach beginning and advanced lawstudents the rudiments of law in the particular areas of expertise claimedby the professors. Effective, indeed acceptable, law teaching requiresresearch to develop new courses, improve current courses, prepareteaching materials and textbooks, and more generally just to stay abreastof new statutes, cases, and ideas in the subject matter of the courses weteach.Another expectation of law professors is that they regularly provide arange of services to the law college, the university, the profession, thelegal system, and the society-at-large. The various specific service obli-gations may be in academic governance, law reform, or continuing legaleducation. Many of these service areas may require specialized researchjust to understand the issues involved and the appropriate alternativesolutions to be considered.The third obligation of the law professor is the focus of this paper. Thisis the expectation of scholarship, typically manifested in written papers,articles, monographs and books, either expanding the frontiers of knowl-edge or providing particularly insightful analyses of existing knowledge.It is in this function that the professor, law or otherwise, has an almostunique role to play.At least in theory, the law professor is afforded a generous portion ofthe work week, perhaps twenty to thirty percent, with no narrowlydefined job tasks and no target billable hours. The law professor is simplyadmonished to "seek truth" and "to go where no mind has gone before."And, as all of us in this business soon discover, our success in thisacademic research, particularly as manifested by research publications,is the primary determinant of our success as law professors.So we write. We use our legal training and experience, as well as theadvocacy mindset issued to us as law students and lawyers, to do theresearch upon which this scholarly writing must be based. We can hardlybe blamed for falling back on our previous research and writing efforts toprovide a model for our continuing work. For almost all of us, thatprevious research and writing experience comes from our writing of briefs198813Published by EngagedScholarship@CSU, 1988CLEVELAND STATE LAW REVIEWand papers in law school and the writing of motions, briefs, and similardocuments as practicing lawyers. Therein lies the problem, and the targetof our inquiry this evening.III. ADVOCACY RESEARCH BY LAWYERSPracticing lawyers function in a world quite different from the univer-sity, certainly in the context of the individual case. The case comes to thelawyer as an undifferentiated jumble of contested facts, arguable law,and often intense emotions. The lawyer's role is fairly clear-to achievethe best results for your client. For a criminal defense attorney, forexample, those results typically are (1) to minimize the chances ofconviction and, failing that, (2) to obtain the least severe sentence.The research limitations on the lawyer advocate are often severe,particularly for the criminal defense attorney. Little time, less assis-tance, and even less encouragement often lead the advocate to what canonly be described as a "quick and dirty" foray into the primary lawsources. Beckoning sidetrips must be shunned, and background readingof law review articles is an extravagant luxury. Trial judges, and evenappellate courts, give little encouragement for the Brandeis Brief or evenexposition of the argument beyond the primary statutes and case hold-ings.But the most serious problem stems from the role of the lawyer asadvocate. No motivation exists to expand knowledge or produce insight-ful critiques of existing knowledge unless this would serve to gain thedesired results for the client. Since cases primarily require diligentuncovering of the facts and presentation of those facts in the mostpersuasive manner possible, the knowledge expanded and being critiquedis simply what happened on the night in question. While this may becrucial to the client's case, it is seldom of interest beyond the confines ofthat case.So the advocate is often in a mad rush from tree to tree, forced to grabat facts and law that help the client but with no time, and perhaps noinclination, to wander and enjoy the forest. A steady diet of such advocacyresearch may well lead the participants to believe that this is whatresearch is all about and to be skeptical toward and unappreciative of lessgoal-oriented, real world, practical research. Perversely, it can appeal tothe characteristic cynicism of lawyers and bolster their belief that no onedoes or should pursue research unless there is something in it for theadvocate's cause.IV. IMPLICATIONS FOR LAW PROFESSORSIf the general sense of these positions can be accepted at least in part,what are the implications for law professors' research and writing?[Vol. 36:2534https://engagedscholarship.csuohio.edu/clevstlrev/vol36/iss2/5ACADEMIC AND ADVOCACY RESEARCHShould we follow our natural inclination to pursue advocacy goals,arguing for some law reform measure or for some new direction? I say no,or at least not always.Two primary reasons lead me to this conclusion. First, expansive,exhaustive, unrestricted, far-reaching explorations of important topics inlaw are of undeniable value to the legal profession. Few issues have onlytwo sides; more commonly, issues impact a wide variety of people andprinciples, most of which are unrepresented in advocacy settings. If weare simply to understand where we have been, where we are, where weare going, and where we might go if things were different, we must befurnished with information and analyses which cover the waterfront andwhich are as objective and value-neutral as humanly possible.Second, law professors are the only ones who can or will perform thisservice. Practicing attorneys lack the mindset, the resources, and theethical latitude, certainly as far as such an unrestricted inquiry mightnot further their clients' interests. Appellate judges are restricted in theiropinions to the advocacy briefs of the parties, their own limited researchand that of their clerks, and the issues presented in the case before them.Legislators considering legal reform may attempt a broader inquiry butare not immune to the efforts of political action groups or the wishes oftheir constituents, and in any event they do not enjoy the protections ofacademic tenure. University professors in fields other than law, nomatter how closely allied with law, seldom have the depth of legalanalytical ability to satisfy this need, at least by themselves.So it is up to law professors. Indeed, it is part of their contract with theuniversity, the profession, and society. They are paid a reasonablefull-time salary to work a full work week and are assigned only a fewteaching hours and a few service commitments. The rest of their workweek is left open for precisely the kind of endeavor described above. Theyhave almost no restrictions, even no guidelines, as to the appropriatetopics to be explored, research questions to be addressed, conclusions to bedrawn, or values to be served. Ignoring for the moment the predilectionsof student law review editors to whom our finished products are submit-ted, law professors don't even have to be relevant.Certainly in comparison to practicing lawyers and judges, lawprofessors have almost no firm deadlines or page limits. For theadvocate, the brief is due on Monday regardless of the condition of thedraft. Academic professionals can, and most do, put the still uncookedpiece on the shelf for a while until we work through the parts thattrouble us, that still need more research, or that we can't seem to getquite right. Yes, we may face approaching tenure or promotion decisionsbut even then the restraints are quite loose.Many issues will never be researched in any scholarly manner if not bylaw professors. These include issues that can not, or at least have not forcenturies, found their way into justiciable cases. They have not been and1988]5Published by EngagedScholarship@CSU, 1988CLEVELAND STATE LAW REVIEWwill not be addressed by legislative committees. Either they are notparticularly relevant to the law of today, they are not at all ripe forpresentation to adjudicative bodies, or they are based upon unproven andcurrently unprovable facts. Only the curious law professor will have thetime, freedom, and inclination to follow that thread wherever it may lead.V. So How ARE WE DOING?If there is at least some obligation for the law professoriate to fill thisniche, how well have we done? How many law review articles, forexample, simply explore all of the nooks and crannies of a legal issue andavoid any strongly worded moral at the end of the story? How easy is itto distinguish between the law professor's article and the lawyer's brief inany measure other than format? How often do law professors use theirfreedom to research and their access to law reviews simply to launch yetanother manifesto to further their own pet cause? Shouldn't they feelsome obligation to provide a neutral, objective exploration and presenta-tion of all the issues and let the readers decide for themselves whatconclusions should be drawn? Finally, might this not tone down the toocommon shrill pettifoggery language of so much legal scholarship?VI. EPILOGUE: CONFESSIONS OF A SINNERHaving roundly chastised the law professoriate for researching andwriting advocacy pieces rather than academic pieces, let me now turn thespotlight on my own efforts. Was I able to follow the righteous path inwriting about the juvenile death penalty, or do my published pieces readlike advocates' briefs? Mea culpa, mea culpa.I tried from the beginning to do the right thing, but the human side ofme, long repressed but with a faint pulse still discernible, occasionallyovertook the legal scholar side of me. As I examined the facts aboutexecuted child after executed child, describing them in a detail unat-tained since my ninth grade laboratory report on the dissection of a frog,I could not suppress the outrage boiling within me.I confess. The part of the brief I contributed for the Supreme Court casewas a thinly disguised reprint of my law review article5 and bookchapter finished the year before. Even before I was officially an advocatefor a juvenile on death row, I was writing advocacy pieces and unflinch-ingly sending them off to law review editors. I tried to tell the whole' Streib, The Eighth Amendment and Capital Punishment of Juveniles, 34 CLEV. ST. L.REv. 363 (1986).6 V. STREm, supra note 1, at 21-40.[Vol. 36:2536https://engagedscholarship.csuohio.edu/clevstlrev/vol36/iss2/51988] ACADEMIC AND ADVOCACY RESEARCH 259story, the good, the bad, and the ugly. But even a friendly reading cannotavoid picking up on my point of view.I promise to do better. I promise to think about the things I have saidin this little talk and to try to walk the better path. Won't you join me?7Published by EngagedScholarship@CSU, 19888https://engagedscholarship.csuohio.edu/clevstlrev/vol36/iss2/5

Academic Research and Advocacy Research

EngagedScholarship @ Cleveland State University

Cleveland State University
EngagedScholarship@CSU
Cleveland State Law Review Law Journals
1988
Academic Research and Advocacy Research
Victor L. Streib
Cleveland- Marshall College of Law
Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev
Part of the Legal Writing and Research Commons
How does access to this work benefit you? Let us know!
This Article is brought to you for free and open access by the Law Journals at EngagedScholarship@CSU. It has been accepted for inclusion in
Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact library.es@csuohio.edu.
Recommended Citation
Victor L. Streib, Academic Research and Advocacy Research, 36 Clev. St. L. Rev. 253 (1988)
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol36/iss2/5
ACADEMIC RESEARCH AND ADVOCACY RESEARCH
VICTOR L. STREIB*
I. PERSONAL EXPERIENCE .............................. 253
II. ACADEMIC RESEARCH BY LAW PROFESSORS ................ 255
III. ADVOCACY RESEARCH BY LAWYERS ..................... 256
IV. IMPLICATIONS FOR LAW PROFESSORS ..................... 256
V. So How ARE WE DOING? . . . . . . . . . . . . . . . . . . . . . . . . . . . .  258
VI. EPILOGUE: CONFESSIONS OF A SINNER .................... 258
R esearch is something we all do, whether for buying a new car,
choosing a favorite wine, or agreeing to marry an attractive lover.
Some research is a necessary evil, some a delightful passage, some
unmitigated drudgery. Our general concern this evening is to hone the
concept of legal research, at least as it is manifested by law professors and
lawyers. More specifically, how does academic research and advocacy
research differ in the world of law and what unique obligations might
such differences suggest for the law professoriate?
The general issue is the difference, perhaps conflict, between research
aimed primarily at discovering truth and expanding knowledge versus
research aimed primarily at mounting an argument to achieve victory for
a client or some law reform goal. Academic research permits the
researcher to define the topic and the important points to be studied, and
encourages the researcher to report everything found of any value to the
field. Advocacy research typically begins with a narrowly drawn topic
and issue, and the researcher is encouraged to report only the findings
which bolster the advocate's primary argument, either greatly discount-
ing or remaining conveniently silent about conflicting evidence.
I. PERSONAL EXPERIENCE
Let me provide fair warning about my personal goals in this inquiry. I
have thought about this issue for most of my seventeen years as a
professor, occasionally defending the adversarial tone of my scholarly
writing, often admiring the attempts at value-neutral writing by other
* B.S. Auburn University; J.D., Indiana University; Professor of Law, Cleveland-
Marshall College of Law, Cleveland State University. This commentary was delivered as the
Second Annual Faculty Lecture at a program entitled "A Celebration of Scholarship" held
at Cleveland-Marshall College of Law at Cleveland State University on February 18, 1988.
1Published by EngagedScholarship@CSU, 1988
CLEVELAND STATE LAW REVIEW
scholars, and condescendingly ridiculing the thinly-veiled adversarial
goals of most law review articles.
During the past two years I have had to face this issue more directly in
my own work. For over a decade, beginning in 1976, my professorial
research and writing largely concerned the issue of the death penalty for
juvenile offenders. I began with the goal of discovering everything about
its history and current practice as well as the relevant law and policy
issues. As I carefully documented this phenomenon, I fought against my
inclination to roundly condemn it as barbaric, unamerican, and otherwise
outrageous. I continued to remind myself that my obligation was to report
everything-the good, the bad and the ugly.
A year and one half ago I was finishing the final edit of my book' on this
subject. As I painstakingly checked and double checked each footnote,
each statistic, I also reworded any text that revealed too baldly my true
feelings about the need to end this practice. I did allow my adversarial
side relatively free rein in the final chapter 2 but otherwise tried to hew
the work to the idealistic model of the detached, uninvolved academic
researcher.
A few weeks after finishing the final edit of the book I was invited to
become involved as co-counsel for a juvenile actually on death row.3 1 had
repeatedly refused such requests in the past, fearing that the role of
advocate with my client's very life on the line would render even more
difficult my efforts to live up to the value-neutral model of the academic
researcher. But the academic research and writing was over, the case was
a particularly good one for appellate review, and I thought the experience
would be a good refresher for me on the real world of lawyering.
As many of you know, I did agree to serve as co-counsel. I worked for
several weeks on the petition for certiorari and then worked for several
months on the briefs. The case was argued before the United States
Supreme Court on November 9, 1987, and the decision may be handed
down any day now.4 My six months of intensive advocacy research and
writing on that case made clear to me the real world differences between
advocacy research and academic research and the schizophrenia such
differences induce in the lawyer/law professor who attempts both.
Before continuing with the tale of my personal saga down this
treacherous path, let me return to some fundamental principles and
guideposts for these two quite different endeavors.
1 V. STREIB, DEATH PENALTY FOR JUVENILES (1987).
2 Id. at 184-89.
' Thompson v. Oklahoma, 56 U.S.L.W. 4892 (U.S. June 29, 1988), vacating and
remanding 724 P.2d 780 (Okla. Crim. App. 1986).
4 Editor's note: The case was decided on June 29, 1988. See Thompson v. Oklahoma,
108 S. Ct. 2687 (1988).
[Vol. 36:253
2https://engagedscholarship.csuohio.edu/clevstlrev/vol36/iss2/5
ACADEMIC AND ADVOCACY RESEARCH
II. ACADEMIC RESEARCH BY LAW PROFESSORS
We are law professors and lawyers. While trained primarily, and in my
case solely, to be attorneys at law pursuing the interests of clients in
various adversarial or quasi-adversarial settings, we find ourselves in the
role of university professors whose subject happens to be law. University
professors in other disciplines typically are not only well-trained in their
fields, but are socialized in their graduate programs to fulfill the research
and writing expectations of university professors. By and large, law
professors do not have that experience. We are trained advocates func-
tioning in an academic world that values non-adversarial exposition and
inquiry.
Law professors' professional lives are continually drawn in a variety of
directions. First, they are expected to teach beginning and advanced law
students the rudiments of law in the particular areas of expertise claimed
by the professors. Effective, indeed acceptable, law teaching requires
research to develop new courses, improve current courses, prepare
teaching materials and textbooks, and more generally just to stay abreast
of new statutes, cases, and ideas in the subject matter of the courses we
teach.
Another expectation of law professors is that they regularly provide a
range of services to the law college, the university, the profession, the
legal system, and the society-at-large. The various specific service obli-
gations may be in academic governance, law reform, or continuing legal
education. Many of these service areas may require specialized research
just to understand the issues involved and the appropriate alternative
solutions to be considered.
The third obligation of the law professor is the focus of this paper. This
is the expectation of scholarship, typically manifested in written papers,
articles, monographs and books, either expanding the frontiers of knowl-
edge or providing particularly insightful analyses of existing knowledge.
It is in this function that the professor, law or otherwise, has an almost
unique role to play.
At least in theory, the law professor is afforded a generous portion of
the work week, perhaps twenty to thirty percent, with no narrowly
defined job tasks and no target billable hours. The law professor is simply
admonished to "seek truth" and "to go where no mind has gone before."
And, as all of us in this business soon discover, our success in this
academic research, particularly as manifested by research publications,
is the primary determinant of our success as law professors.
So we write. We use our legal training and experience, as well as the
advocacy mindset issued to us as law students and lawyers, to do the
research upon which this scholarly writing must be based. We can hardly
be blamed for falling back on our previous research and writing efforts to
provide a model for our continuing work. For almost all of us, that
previous research and writing experience comes from our writing of briefs
19881
3Published by EngagedScholarship@CSU, 1988
CLEVELAND STATE LAW REVIEW
and papers in law school and the writing of motions, briefs, and similar
documents as practicing lawyers. Therein lies the problem, and the target
of our inquiry this evening.
III. ADVOCACY RESEARCH BY LAWYERS
Practicing lawyers function in a world quite different from the univer-
sity, certainly in the context of the individual case. The case comes to the
lawyer as an undifferentiated jumble of contested facts, arguable law,
and often intense emotions. The lawyer's role is fairly clear-to achieve
the best results for your client. For a criminal defense attorney, for
example, those results typically are (1) to minimize the chances of
conviction and, failing that, (2) to obtain the least severe sentence.
The research limitations on the lawyer advocate are often severe,
particularly for the criminal defense attorney. Little time, less assis-
tance, and even less encouragement often lead the advocate to what can
only be described as a "quick and dirty" foray into the primary law
sources. Beckoning sidetrips must be shunned, and background reading
of law review articles is an extravagant luxury. Trial judges, and even
appellate courts, give little encouragement for the Brandeis Brief or even
exposition of the argument beyond the primary statutes and case hold-
ings.
But the most serious problem stems from the role of the lawyer as
advocate. No motivation exists to expand knowledge or produce insight-
ful critiques of existing knowledge unless this would serve to gain the
desired results for the client. Since cases primarily require diligent
uncovering of the facts and presentation of those facts in the most
persuasive manner possible, the knowledge expanded and being critiqued
is simply what happened on the night in question. While this may be
crucial to the client's case, it is seldom of interest beyond the confines of
that case.
So the advocate is often in a mad rush from tree to tree, forced to grab
at facts and law that help the client but with no time, and perhaps no
inclination, to wander and enjoy the forest. A steady diet of such advocacy
research may well lead the participants to believe that this is what
research is all about and to be skeptical toward and unappreciative of less
goal-oriented, real world, practical research. Perversely, it can appeal to
the characteristic cynicism of lawyers and bolster their belief that no one
does or should pursue research unless there is something in it for the
advocate's cause.
IV. IMPLICATIONS FOR LAW PROFESSORS
If the general sense of these positions can be accepted at least in part,
what are the implications for law professors' research and writing?
[Vol. 36:253
4https://engagedscholarship.csuohio.edu/clevstlrev/vol36/iss2/5
ACADEMIC AND ADVOCACY RESEARCH
Should we follow our natural inclination to pursue advocacy goals,
arguing for some law reform measure or for some new direction? I say no,
or at least not always.
Two primary reasons lead me to this conclusion. First, expansive,
exhaustive, unrestricted, far-reaching explorations of important topics in
law are of undeniable value to the legal profession. Few issues have only
two sides; more commonly, issues impact a wide variety of people and
principles, most of which are unrepresented in advocacy settings. If we
are simply to understand where we have been, where we are, where we
are going, and where we might go if things were different, we must be
furnished with information and analyses which cover the waterfront and
which are as objective and value-neutral as humanly possible.
Second, law professors are the only ones who can or will perform this
service. Practicing attorneys lack the mindset, the resources, and the
ethical latitude, certainly as far as such an unrestricted inquiry might
not further their clients' interests. Appellate judges are restricted in their
opinions to the advocacy briefs of the parties, their own limited research
and that of their clerks, and the issues presented in the case before them.
Legislators considering legal reform may attempt a broader inquiry but
are not immune to the efforts of political action groups or the wishes of
their constituents, and in any event they do not enjoy the protections of
academic tenure. University professors in fields other than law, no
matter how closely allied with law, seldom have the depth of legal
analytical ability to satisfy this need, at least by themselves.
So it is up to law professors. Indeed, it is part of their contract with the
university, the profession, and society. They are paid a reasonable
full-time salary to work a full work week and are assigned only a few
teaching hours and a few service commitments. The rest of their work
week is left open for precisely the kind of endeavor described above. They
have almost no restrictions, even no guidelines, as to the appropriate
topics to be explored, research questions to be addressed, conclusions to be
drawn, or values to be served. Ignoring for the moment the predilections
of student law review editors to whom our finished products are submit-
ted, law professors don't even have to be relevant.
Certainly in comparison to practicing lawyers and judges, law
professors have almost no firm deadlines or page limits. For the
advocate, the brief is due on Monday regardless of the condition of the
draft. Academic professionals can, and most do, put the still uncooked
piece on the shelf for a while until we work through the parts that
trouble us, that still need more research, or that we can't seem to get
quite right. Yes, we may face approaching tenure or promotion decisions
but even then the restraints are quite loose.
Many issues will never be researched in any scholarly manner if not by
law professors. These include issues that can not, or at least have not for
centuries, found their way into justiciable cases. They have not been and
1988]
5Published by EngagedScholarship@CSU, 1988
CLEVELAND STATE LAW REVIEW
will not be addressed by legislative committees. Either they are not
particularly relevant to the law of today, they are not at all ripe for
presentation to adjudicative bodies, or they are based upon unproven and
currently unprovable facts. Only the curious law professor will have the
time, freedom, and inclination to follow that thread wherever it may lead.
V. So How ARE WE DOING?
If there is at least some obligation for the law professoriate to fill this
niche, how well have we done? How many law review articles, for
example, simply explore all of the nooks and crannies of a legal issue and
avoid any strongly worded moral at the end of the story? How easy is it
to distinguish between the law professor's article and the lawyer's brief in
any measure other than format? How often do law professors use their
freedom to research and their access to law reviews simply to launch yet
another manifesto to further their own pet cause? Shouldn't they feel
some obligation to provide a neutral, objective exploration and presenta-
tion of all the issues and let the readers decide for themselves what
conclusions should be drawn? Finally, might this not tone down the too
common shrill pettifoggery language of so much legal scholarship?
VI. EPILOGUE: CONFESSIONS OF A SINNER
Having roundly chastised the law professoriate for researching and
writing advocacy pieces rather than academic pieces, let me now turn the
spotlight on my own efforts. Was I able to follow the righteous path in
writing about the juvenile death penalty, or do my published pieces read
like advocates' briefs? Mea culpa, mea culpa.
I tried from the beginning to do the right thing, but the human side of
me, long repressed but with a faint pulse still discernible, occasionally
overtook the legal scholar side of me. As I examined the facts about
executed child after executed child, describing them in a detail unat-
tained since my ninth grade laboratory report on the dissection of a frog,
I could not suppress the outrage boiling within me.
I confess. The part of the brief I contributed for the Supreme Court case
was a thinly disguised reprint of my law review article5 and book
chapter finished the year before. Even before I was officially an advocate
for a juvenile on death row, I was writing advocacy pieces and unflinch-
ingly sending them off to law review editors. I tried to tell the whole
' Streib, The Eighth Amendment and Capital Punishment of Juveniles, 34 CLEV. ST. L.
REv. 363 (1986).
6 V. STREm, supra note 1, at 21-40.
[Vol. 36:253
6https://engagedscholarship.csuohio.edu/clevstlrev/vol36/iss2/5
1988] ACADEMIC AND ADVOCACY RESEARCH 259
story, the good, the bad, and the ugly. But even a friendly reading cannot
avoid picking up on my point of view.
I promise to do better. I promise to think about the things I have said
in this little talk and to try to walk the better path. Won't you join me?
7Published by EngagedScholarship@CSU, 1988
8https://engagedscholarship.csuohio.edu/clevstlrev/vol36/iss2/5


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