Monday, February 23, 2015

Using Articles to Advance but not Preempt the Book

If you are a legal historian in a law school, writing articles as well as a book is likely a tenure requirement. Even if you don’t face institutional pressures to publish articles, you should consider doing so because they can help your book. But in either case, you need to be careful not to preempt your book in the process. This can happen if your articles leave a publisher concerned that everything important in the book has already been said. By the time my book appeared, I had published two articles, one book chapter, and two symposium pieces related to the book. They fell into three types, the benefits and potential pitfalls of which I discuss below.

(NB: this is a long post—perhaps as a result of failing to do this—so I’ve bolded the article types for anyone who wants to skim for them and skip the detailed article descriptions.)

The first type of article I’ll call “substrata.” These articles lay important ground for the book that for whatever reason (space, audience, etc.) doesn’t belong in the book itself. Two of my pieces played this role.
A recent symposium piece, “A Revolution at War with Itself? Preserving Employment Preferences from Weber to Ricci,” did some critical heavy lifting. In the last chapter of the book, I argue that affirmative action complicated civil rights advocates’ position on the state action doctrine. In the 1960s and 1970s, these advocates argued that affirmative action vindicated equal protection and sought to expand the state action doctrine to bring affirmative action policies to ostensibly private workplaces. Once the Supreme Court found that affirmative action violated equal protection, a narrow state action doctrine instead protected private employers’ affirmative action policies.
The 1979 decision United Steelworkers of America v. Weber involved an affirmative action program at a private employer, Kaiser Aluminum. The Supreme Court decided Weber one year after Regents of the University of California v. Bakke, the case most lawyers think of as the Court’s first anti-affirmative action opinion. Weber found that private employers could adopt affirmative action policies more liberally under Title VII of the 1964 Civil Rights Act than it would find public employers could do under equal protection.

In the book, I wanted to say about Weber: “Private sector affirmative action policies were nonetheless safe, at least so long as they were not evaluated under the equal protection clause.” (245) This made intuitive sense, but substantiating this claim actually required constructing a very complicated doctrinal argument and a convoluted counterfactual. Queue the substrata article. It just so happened that this counterfactual was also useful to the argument I was making in my symposium piece. As a result, I was able to use several pages of the article, including some incredibly long footnotes, to construct a counterfactual and doctrinal argument I could not fit in the book.

Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present” was another substrata article. Over half the book’s chapters are about agencies’ constitutional deliberations and policies. You’d think there wouldn’t be more I needed to say on this subject, but there was. “Race, Sex, and Rulemaking” used my historical material to make a theoretical claim: that the burgeoning literature on the Constitution outside of the courts had overlooked a pervasive site of constitutional interpretation and implementation, administrative agencies.

It’s not that scholars didn’t realize that agencies had to consider constitutional constraints on administration. But most scholars had assumed that all agencies did with the Constitution was dutifully apply Supreme Court precedents. In order to make the case that administrative constitutionalism merited the attention of scholars interested in constitutional meaning making, I had to convince them otherwise. This meant delving into the details of administrators’ constitutional positions to demonstrate that they diverged in notable ways from those of the Supreme Court. It also meant establishing the subject’s novelty within the literature on extra-court constitutionalism. Both of these tasks would have bogged down the book terribly. With all that accomplished in the article, however, I could focus in the book on those aspects of administrators’ constitutional interpretations that moved my argument and narrative along. And I could send interested readers to the article to substantiate the introduction’s claim that my focus on these interpretations was a novel contribution to constitutional history and theory.

Using book material for a pre-book article raises the self-preemption problem, however. To avoid this, I focused in the article on just two agencies, the Federal Communications Commission and the Federal Power Commission, which are the subject of only two of the book’s seven agency-focused chapters. The other agency-focused chapters are about a different agency, the National Labor Relations Board; cover an earlier period, starting in the 1940s; and examine the phenomenon in the context of agency adjudications rather than rulemaking. As a result, the NLRB chapters expand my prior account of administrative constitutionalism along a number of axes. I was also careful in the book to focus on aspects of the FCC and FPC story that were not addressed in the article, including the policies’ effects as well as their interaction with grassroots mobilization and evolving Supreme Court doctrine.

Another genre of article I’ll call “ground staking.” These are articles that lay out key arguments the book will make. By their nature, they run the greatest risk of preempting the book. But staking your historiographic ground is sometimes well worth the risk and there are a number of things you can do to mitigate the risk this poses. I would put two of my pieces in this category (“Race, Sex, and Rulemaking” is a borderline case that could go here as well).

My first article, “Hotspots in a Cold War: The NAACP’s Postwar Workplace Constitutionalism, 1948-1964” was a ground-staking effort. I argued that the NAACP, including what became the Legal Defense Fund, Inc., did not abandon constitutional claims on behalf of black workers in the 1950s.

Getting the argument out there early made sense. This argument was where my project started…literally: “Hotspots” began as a seminar paper. It responded to historiographic debates very much of that moment. Most broadly, it intervened in debates catalyzed by Jacquelyn Dowd Hall’s 2005 presidential address to the OAH, “The Long Civil Rights Movement and the Political Uses of the Past” (gated access). More narrowly, it responded to a claim Risa Goluboff made in a law review article and later in her inspirational and influential book The Lost Promise of Civil Rights: that the NAACP’s lawyers stopped bringing suits on behalf of black workers in the late 1940s.

When “Hotspots” was published in 2008, my book was still 6 years in the future. With the passage of so much time, the debates the article intervened in have cooled and the field has moved on. Whatever splash my argument could make, in other words, had an expiration date. If you have an argument that is of the moment in your book's early stages, it likely has an expiration date too. This makes it a prime candidate for a ground-staking article.

You can mitigate the preemption risks of publishing a ground-staking article. With, “Hotspots,” as with “Race, Sex, and Rulemaking,” I knew that the book would be much broader, covering civil rights litigators other than the NAACP, and longer, stretching from the 1930s through the 1970s. I also knew that it would involve not only the agency adjudications that were the focus of “Hotspots” but also litigation in the courts. As a result, while “Hotspots” staked historiographic ground, the book is what fully develops and supports my claim to that ground.

Ground-staking articles can also help you engage scholars who will help you refine your argument as you write the book. “Hotspots” had this advantage, stimulating productive conversations with Goluboff as well as a number of other scholars whose work influenced the book. My chapter “Whose Rights? Litigating the Right to Work, 1950-1980” played a similar role. The chapter argues that the right-to-work movement pioneered during the late 1960s a tactic associated with late-twentieth century conservatives: tempering an ultraright image by aligning the movement with black workers and with African Americans’ civil rights struggle.

The chapter started as a conference paper and is not developed much beyond that. Indeed, I discovered a lot more about the history of the right-to-work movement after writing the chapter. As a result, the book not only expands on the chapter, but also revises a couple of its claims (for instance, the book argues that the movement forged this tactic much earlier). But getting the chapter’s argument out early was hugely beneficial in terms of engaging more senior scholars working on the history of conservatism. They were extremely helpful and generous as I worked on the book. And while correcting your published self is not ideal, it is most forgivable with regards to a conference piece. Besides, correcting yourself has the ancillary benefit of mitigating concerns about preempting yourself!

Let’s call the last genre “cutting room floor” articles. Sometimes there’s something you really want to say in the book but it just doesn’t fit. These are great prospects for a cutting-room-floor article. My symposium piece “A Signal or a Silo? Title VII’s Unexpected Hegemony” fits this description. It’s hard not to read the history of the NLRB’s tentative forays into antidiscrimination policy during the 1940s and ’50s without wondering what would have happened if the Board had been more aggressive? What if the Board had not allowed the modern, post-New Deal labor movement to build up thirty years of racially segregated jobs, seniority, and promotion? Perhaps then the labor movement could have avoided the fissuring debates over affirmative action and the crippling antidiscrimination lawsuits of the 1960s and beyond. In “A Signal or a Silo?” I use the history of the NLRB’s late foray into more aggressive antidiscrimination policies to suggest this path may not have turned out as these “what if?” ponderings would have it. This is because the most aggressive users of the NLRB’s beefed-up antidiscrimination policies in the 1970s were employers for whom they were an effective means to delay and defeat unionization drives.

Legal history is an inherently cross-disciplinary endeavor. As a result, there will always be opportunities, if not imperatives, to translate your work across the disciplinary divide. Sometimes that may mean using your historical work to make contributions to legal scholarship, as I tried to do with “Race, Sex, and Rulemaking.” Other times it will be using your knowledge of the law to participate in historiographical debates, which is how I saw “Hotspots.” Articles beckon as a way to take advantage of these translation opportunities, whether they lay substrata, stake ground, or clean up the cutting room floor for the book. And if done with care and foresight, you won’t preempt yourself.

Are there genres of book-related articles I’ve overlooked or other strategies you’ve used to avoid preempting yourself?