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Tuesday, June 19, 2012

Two Cheers for the "Undertheorized" Critique in Legal Scholarship

I've written a few posts of my own in recent weeks expressing frustration with some of the typical bits of jargon and standard arguments used in law review articles; my own hobby-horse is the overuse, or questionable use, of "originality" claims. Dan's post below adds to that list the standard argument in law review articles that some area is "undertheorized." I'd like to add two observations. 

I have used the "undertheorized" line myself; I guess most of us have. I agree with Dan that 1) it is overused; 2) its use is itself often "undertheorized"; and 3) it raises fun questions about what constitutes adequate theorization. That said, I think it's not just jargon or a standard gambit to get an article published (which is what his commenters largely focus on). It's a standard critique because it's a common problem. Some of this has to do with the particular nature of legal scholarship, which toggles (sometimes in the same piece) between more abstract and more practical or doctrinal concerns. We can, in time-honored fashion, question whether abstract theoretical pieces are of any use to anyone. But the "useful" pieces, the ones that stick close to doctrine, are often problematic as solutions precisely because they make a raft of questionable theoretical assumptions. And, of course, undertheorization is endemic to judicial opinions. So if you're going to write about either judicial doctrine or doctrinal scholarship, questioning the adequacy of the theoretical assumptions in or basis for a line of law or proposed legal reform seems to be an excellent place to start. Doubtless there are times when "undertheorized" is the wrong word--when what you mean is "badly theorized," or where one's real problem with the work one is attacking is not the theory at all but the doctrine itself. But I think the undertheorization critique can make perfect sense, and in fact is often applicable to legal scholarship.

One additional observation. I have read a lot of well-placed articles recently by fellows, juniorish professors at non-top-ten schools, and so on--that is, people who would not inevitably expect to be published by top journals but succeeded in doing just that. I would say that many of these articles succeeded splendidly at playing the game: they were chock-full of claims of total originality (but with the inevitable "but see" footnote), the devastating nature of some existing doctrine or the utopian promise of their own fix, claims that everyone else is "undertheorized" or has "surprisingly neglected" something or other, and so on. I thought, once all this superstructure and gaming was stripped away, that some of these pieces were still fantastic and others were, shall we say, overplaced. If I were advising others (or myself!) without any concern for the broader values of scholarship, I would find it hard not to recommend that the author play all these cards. In the best articles, these kinds of things ultimately seem unnecessary; in the worst, they seem hackish, and one ends up thinking there is no there there once the superstructure is stripped away. But they seem to be, not a guarantee of good placement, but a requirement for consideration for good placement.

If I were advising editors at top (or other) law reviews, I would tell them they are still prone to being taken in too much by these sorts of things, and advise them to ask how good the article is once all the gamespersonship is stripped away. If I were advising authors, I would tell them 1) not to believe all of their own PR and 2) to consider, in the bowels of Christ, that what helps them succeed individually may not be good for the scholarly enterprise itself. But if I were offering purely cynical strategic advice, I would find it difficult not to tell them to go ahead and play the game, alas.   

Posted by Paul Horwitz on June 19, 2012 at 08:26 AM in Paul Horwitz | Permalink

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Should we use the term "overtheorized" more often? I think quite a few areas of the legal universe are perhaps overtheorized and would benefit from a little bit of weeding out the useful from the useless. I wonder how a law review editor (or article reader) would respond to the overtheorized claim. On the other hand, one might think that "undertheorized," when contrasted with overtheorized, is simply a point-of-view claim: this area of law has yet to be subjected to my theoretical point of view, and so (from that perspective) is undertheorized. It could, of course, be the case that some areas have little theory applied to them from any point of view. Is the undertheorization claim disingenuous if an area of law is theorized, but not from the author's theoretical point of view? (That is, must the author tell the whole truth? Or just the truth about her theory?).

Posted by: Eric J. Miller | Jun 22, 2012 7:04:09 AM

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