Legal scholarship v. blogging

The recent blogosphere discussion on this topic -- the unread (and largely unreadable) status of most conventional, law review-bound legal scholarship versus blogging and other less-traditional media as alternative outlets -- pushes an old button of mine, enough to finally give this alternative medium a try myself . . . . 

The original post was by Rosa Brooks on LawCulture, here and her follow-up here; Doug Berman has recently compiled the relevant posts (and added his own characteristically reasonable two bits, too) here.  I think that the posts by Paul Horowitz and Jessica Silbey, in different ways, get to the heart of the matter. 

Horowitz's thesis is simple -- conventional legal scholarship "is what we do, what we like, who we are, and that's that":

Now, it seems to me that the answer to Brooks's question -- who do we law professors write to and why? -- is that we write legal scholarship largely for ourselves and largely because it is part of the role orientation of law professors -- and, usually, for no other or better reason.  It is what we do, what we like, who we are, and that's that. To quote Rodell, "diddling while Rome burn[s]" is a perfectly adequate description of legal scholarship; whatever some legal scholars may tell themselves or others, legal scholarship is generally not about "solving the myriad of problems of the world" -- it's about doing what legal scholars do.  Except in some utilitarian sense, that's just fine or, at least, just life.  Some may find this perspective a little grim; I'm not sure I really do.

Would that it were so.  The problem with this perspective isn't that it's grim -- in fact, I think it's legal scholarship's only hope of salvation -- it's that it's false, or at least not true enough enough of the time.  "[W]hat we do, what we like, who we are" is a wonderful description, from the perspective of the writer (there are other perspectives), of good writing of any kind qua writing  -- fiction or non-fiction, poetry or prose or legal scholarship.  As Walter Benjamin put it, "[n]o poem is intended for the reader, no picture for the beholder, no symphony for the listener" (to which Horowitz might add, no law review article is intended for the student editor).  The real problem with legal scholarship is that so very little of it is writing in just that sense.  Instead, it is "intended" for someone else, and generally the worst possible auditor from the perspective of style, content, and general legibility -- the student editor.  Legal scholarship is overwhelmingly (obviously there are notable exceptions) addressed to the rigid and fearful expectations of people who have little or no understanding of the (often technical) substance of the papers they select and re-write.  "Rigid and fearful" because too often -- again, there are exceptions, but because the problem is inherent in the institution they are rare -- student editors compensate for their lack of substantive knowledge by zealously attacking the author's grammar and style.  A student editor may not know much about the Enmund/Tison mental state requirement under the proportionality element of the Eighth Amendment, but by golly, she sure does know how to keep the author from splitting her infinitives (and, worse yet, how to make that author -- if she wants to get published -- spell out in excruciating detail everything the editor doesn't know about the subject along the way, regardless of the article's particular topic or slant).  Where that editor is the target audience, is it any wonder that law review scholarship rarely counts as writing in Horowitz's sense?

That is not to put the blame on student editors, I hope it is clear, since they can hardly do otherwise, at least to the extent that we have burdened them with the title of "editor."  The problem is not in our student editors, but in ourselves.   As Daniel Solove put it in his recent post, "we professors haven't pushed enough to modify the genre."  I couldn't agree more (although I do worry about turning the truism that "[m]ost ideas can be stated clearly and in an accessible manner" into a new shibboleth for publication -- in fact, regardless of whether or not stated in "lively and accessible prose," the most important ideas are often going to be heavy sledding; no one ever said (nor should they) that reading ought not to be work as well as pleasure).  All that's required is that we decline to don the stylistic straitjacket that we unthinkingly put on every time we start thinking about publishing in a student-edited journal.  The students will follow suit if we do, and as Doug Berman points out, there are more and more peer-reviewed and edited journals to turn to as well. 

Why is this debate happening now?  Without extending what's become an over-long post, I think Jessica Silbey comes closest to an answer in her post by posing a series of unanswered and probably unanswerable questions, culminating with "what do you think 'scholarly' mean in the legal context?"  There was a time when people at least thought they knew the answer to that question, when law was an insular, hermeneutical discipline in which the notion of scholarly merit was inextricably bound up with its consistency with normative authority, and that authority itself was tightly bound to the easily ascertainable and tightly hierarchized materials of the legal tradition, in the form of U.S. Supreme and lower court holdings and opinions.  As Silbey points out, that model no longer holds (or at least its grip has been dramatically loosened), not only by the influx of Ph.D.s whose scholarly qualifications in very different disciplines call into question the traditional legal conceptions of scholarship, but also and relatedly from within the legal academy itself, in its "interdisciplinization" in the form of the various "Law &" movements. 

In any event, to return to the topic at hand, this situation is ripe for us (in the words of Daniel Solove's mild call to action) to "push to modify the genre."  So legal scholars of the world, unite!  We have nothing to lose but our chains (we certainly don't have many readers to lose, at least . . .). 

Comments

[old]

welcome to the blogosphere! I was directed here by Jodi at I Cite, recognizing the name from the comment box to my last post over at the weblog. I did a year of law school at Duke before getting married and deciding that the theology portion of my joint degree was a far better medium for pursuing the critical legal work in which I was most interested. I don't know how many of my posts you've seen at the weblog, but I'm still more than a little interested in all kinds of legal matters and cases. I look forward to further posts from you. Cheers.

[AT]

Thanks, Old. You made the right career choice if you're after critical thinking -- I confess that your recent Paul commentary on the Weblog make me rather jealous of that choice! I've been working on Paul recently after teaching Romans last semester, and your posts are hugely helpful. Very much looking forward to learning more from you --