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 . . .).
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