For years, I’ve suspected it, but now there’s finally confirmation. There’s a reason why law review articles written by professors of law are both painful and almost invariably useless: that’s how they are taught to write them.
Dan Markel at Prawfsblawg offers Advice for Beginning Scholars. If you respect and admire the intellect and scholarship of lawprofs, as I do, you may not want to read any further. It’s like watching sausage being made. It isn’t pretty.
Dan offers three suggestions for those practitioners hoping to break into the Academy. The first is benign enough: use footnotes rather than endnotes. This hardly seems worth saying, since footnotes are easy enough to do these days, unlike the days when I went to law school and papers were typed on typewriters. Back then, footnotes were a major pain to produce, and endnotes were so much easier. With a computer, that problem has been totally eliminated.
The second suggestion is a preview of what’s to come:
The overwhelming burden is to demonstrate to law professors that you think and write like a law professor, not a practitioner. Be careful, therefore, about not falling into a practitioner’s trap of using case cites to support empirical assertions. If you are making an empirical assertion, one needs empirical data, or one needs to weaken the point, like “courts are still struggling with the issue.”
I like that, the “practitioner’s trap.” But he is, of course, quite correct. Practitioners are constrained by precedent, and its mere existence is reason enough to rely on a decision for an empirical assertion. If the court says so, then so it is. From a scholar’s perspective, however, this is lazy and inadequate. The fact that a court ruled that the sun rises in the west doesn’t make it so, and no self-respecting scholar is going to rely on such an decision.
But it’s Dan’s third point that is most telling.
Remember your audience. It’s not judges or practitioners. It’s other law professors. Pure doctrinal work nowadays [is a risk] without sufficient theoretical or social science orientation for a hiring committee to say “whoa, now there’s a practitioner who really gets it.”
First of all, every suggestion that begins with the words “Remember the . . . ” is bound for greatness. It may not be original, but it works every time. You may not have a clue what happened to the “Maine”, but you remember the battle cry, right?
Seriously, this is where the rubber hits the road. We practitioners have suffered from our own self-absorption in thinking that law review articles were written to serve some purpose relative to the law. Whether to inform lawyers, or persuade judges, to impact and improve the way in which the law served society. How selfish we are. How egocentric to think that scholars were talking to us.
Law review articles are a conversation amongst themselves. Colloquially, perhaps they are best thought of as a circle-jerk, where neither judge nor practitioner is allowed to rub up against any tweed-covered elbow. Dan’s suggestions are meant for those practitioners, and I use that word in the broadest possible sense because most have about 12 minutes of practical experience under their belt, who find life in the well of the court distasteful and are looking for a different environment. Dan’s trying to teach wannabe lawprofs how to shift gears.
For so many of us, Dan’s words come as an epiphany. Who knew that this was all a big set-up? Who knew that law review was never meant for the working stiffs, whether in blue pinstripe or black robes, but to curry favor with a secret society of scholars for whom the internal debate was the sole and exclusive end? I didn’t. I always thought that these articles were intended to have some application to the law. I thought that they were meant to actually do something for real people. I am such a maroon.
And as an aside to all those law students who were deluded by the glossy law porn into believing that their tuition was tendered in exchange for their being taught how to be lawyers, pay careful attention. The first thing the Academy demands of your “teachers” is that they disconnect themselves from anything having any connection to the law and prove their mettle by devolving into theoreticians of some extra-legal, multi-disciplinary voodoo designed to never serve any purpose for humanity. No wonder you come out of law school lacking any marketable skills.
I can’t help but wonder whether Jim Chen subscribes to this as well. Is it really true that entry into the Academy requires the shedding of all semblance of social or legal utility? Is that the price of scholar-hood? Is this the best we can do for those students who will some day be expected to actually practice law, an idea so filthy as to bring to a screeching halt any practitioner’s hope of passing along his knowledge and experience to those who will follow in his footsteps?
Update: Heard from Dan Markel, who informs me that the three points were from Jeff Lipshaw, about whom Dan says:
FWIW, Jeff is someone who was in practice for 25 years as a partner and GC at a major company b/f he became a professor and wrote those comments.
Now that’s really weird.
Update 2: Heard from Jeff Lipshaw who, with tongue partially fixed in cheek (I think), mentioned something about people in glass houses. He reminded me that lawyer writing is similarly viewed by the public as a tad, oh, incomprehensible. So is it the same?
I don’t think we’re living in the same glass house. For one thing, many of us in the blawgosphere are constantly advocating for better lawyer writing, less legalese and painfully outmoded language, and just better, clearer writing in general. Second, when we write briefs or motions, it’s done for the purpose of persuading judges because people pay us to do so. In other words, the brief isn’t the end in itself, but a means to an end. We write for a greater purpose.
If lawprofs are writing solely for the benefit of acceptance by other lawprofs, then that’s where the game ends for them. What bothers me most about this is not its insularity, but the waste of so many good minds and so much effort without any greater purpose. Practitioners try to help one client, and in the process may help many. Lawprofs could offer so much more, by changing the course of the law. Why not try to do so? Wouldn’t they feel pretty good if people were still talking about the “[insert lawprof surname] Rule” one hundred years from now?
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Great post. I enjoy reading law review articles, but have to work hard to translate the gibberish into things of practical use. The real irony is that the overwhelming majority of law professors aren’t trained in the disciplines from which they borrow. Hence, most of their production is mere dilettantism. Yet they cite one another so much they’ve created a discipline of misapplied, half-baked and non-utile material fit only for tenure-hunting wannabes who’d wet themselves if ever they confronted a jury or judge in open court.
What never ceases to amaze me is the deliberate antagonism between practical and theoretical ideas. Why they are so determined to keep the real world at arm’s length, lest they lose their sense of distinction and entitlement.
Scott, this post is mis-directed and the tone is juvenile (circle-jerk–really)?.
On the merits, there are two points worth addressing:
regarding what to cite to, there’s nothing wrong with saying that the standard for what counts as evidence of a phenomenon should go beyond just citation to a number of cases and instead look at what empirical social science would say about a particular trend. You seem to acknowledge that.
Second, your argument that the discussion law profs want to have is just a circle-jerk with no broader effect in mind is misplaced. The point Jeff was making and which I seconded is that it’s important for a good law review article to explain why something matters beyond just having the courts clarify some particular aspect of doctrine. If one can’t persuade a law professor who studies the issue that one’s got a problem worth studying and spending more time on than just a few hours of reading and synthesizing the cases, then there’s not much comparative advantage between law professors and competent third year associates.
Bear in mind also that a lot of professorial work product is more than just interpretive and therefore not necessarily directed at courts and practicing lawyers: often it is directed to legislative bodies or executive policy-makers. So there’s no reason for you to take umbrage at being excluded from the conversation if your only reason for reading these pieces is to find out how it will help your client in litigation.
Last, some law professors are writing purely for knowledge’s sake and not to advance a public policy change. Think legal history of a defunct law–what might that tell us about culture then? That might seem like a circle-jerk to you but that inference requires a rather shallow conception of what university professors do if they are required to come before your tribunal of the contemporary and relevant!
So loosen up, and let a thousand flowers bloom. Many professors care about the social utility of their work while some don’t. But all care that the work being produced bears independence of thought and carefulness with the scope of claims.
Dan, I appreciate that you’ve chosen to make a marked shift in your position in order to conform your original post to your current argument. It shows that you have far more flexibility than your denigration of “circle-jerk,” invoking the stereotypical approach to avoiding “juvenile” language in favor of professorial-sounding language suggests. As a practitioner, I have no such need to remain aloof. I can use language that conveys an image or idea without fear that I will be shunned by the academy for being juvenile. Indeed, I can accomplish quite a bit with one juvenile allusion, as demonstrated by your using it twice in your counter-effort. See how well the image worked?
It’s unclear why you raise the point of using empirical data rather than case citations, since I agreed with Jeff and you completely on that point. As to my confusing the fact that these three points were originally Jeff’s pearls, rather than yours, I changed the attribution as soon as you brought it to my attention. At the outset of your post, it failed to grab me sufficiently to pay that close attention. My fault entirely, but to attribute it to “blind rage” takes a little too much literary license than ordinarily allowed. I would not call it disingenuous, however, since it makes your responsive post sound far more interesting at the outset, which was the failing of your original post. Had you been so hyperbolic in the first place, I would likely have paid closer attention to the details.
Your second point, however, is where this gets more interesting. You’ve now changed your point substantially to meet my criticism, and, defensiveness aside, our views are now more aligned:
Originally, your point was:
You affirmatively state that the audience is law professors, and no one else. Now you say that the purpose includes judges, practitioners, legislative bodies and executive policy makers. That’s great! Even though you don’t want to admit it, you’ve now broken away from the circle-jerk and conceded that law review articles should have a purpose aside from impressing the chorus.
No one said that the “only reason for reading these pieces is to find out how it will help your client in litigation” (although this sounds like an awfully good reason to me), but you argued that this was a bad reason, a reason that would be frowned upon, bordering on worthless. Now that you’ve opened your mind to the possibility that law review articles can have some social utility rather than serve only to impress the hiring committee by use of the most popular big words in the academy du jour, perhaps there’s hope yet. Talk about “loosen up,” maybe those grand ideas would have an impact if someone outside the academy had a clue what you’re trying to say. Loosen up, indeed.
Don’t eschew the notion of law review articles being relevant. Even historical perspectives of laws can be relevant (see Heller, for example). There’s nothing wrong with writing something that actually adds to the body of useful knowledge, as opposed to instructing wannabe lawprofs to avoid relevance at all costs.
Now that you’ve shifted away from the preclusive audience of law professors into the world where these ideas might do some actual good, whether to win in litigation, illuminate concepts for judges or sway lawmakers (those people who you said are affirmatively not the audience), perhaps all this hard work will have a payoff greater than getting hired or tenure, and add to the collective wisdom of the law.
Glad to see you come on board.
Law Reviews as an Academic Circle Jerk?
Simple Justice picks up the ball, and PrawfsBlawg runs with it.