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Saturday, August 18, 2012

Intellectual Context

The bar was raised on Prawfsblawg this week! with substantive and thoughtfully framed posts by Profs. Chiang, Godsoe, Madeira, and Moller.  They put to shame my casual and verbose efforts from the perspective of a law-review Submissions Editor.  So I reenter the forum glad that it's a weekend, and that people may be looking for topics besides law itself.

Despite the meatiness of this week's posts, I return to the questions of presentation and audience:  Emily Post matters, rather than Julia Child matters; the garnish rather than the roast.  At the Cleveland State Law Review, we have been well nourished this month, and are grateful to the chefs.  Here (to exhaust the metaphor) are a couple of thoughts about plating, atmosphere, and service.

Chronologically, the first audience for your article is (as I keep insisting) the law student.  Hence the "intellectual context" for its scholarly impact is, at a minimum, fourfold:

1) your research:   the scholars you have read and are responding to, following the footsteps of masters you admire and chastise (cf. Inferno 23.148).

2) your colleagues:  the matrix of ninety professors out there who care about your work because it changes the scholarly conversation in certain particular ways.

3) your ultimate audience:  the judges, policy-makers, and future practitioners who may find your ideas useful in a context of cases, controversies, debates, or transactions.  

AND, as a threshold matter,

4) August and September of the 3L year of an eighty-fifth-percentile law student, 2012.

If #4 seems to you a sadly picayune and uninteresting consideration, you're missing out in two small but significant ways.  

In the first place, if you're not thinking about the immediate target audience who receives law-review e-mails, you're neglecting to deploy a valuable skill set you've been developing over the years.  

As a teacher, you know how to tailor your presentation to a particular audience.  You know how to start a third-year antitrust or advanced-crim-pro course, and how that differs from the opening of a second-semester contracts or crim law course.  You know how to introduce people to a topic in a way that flatters their previous knowledge and challenges it, with some fast learning rewards and the right kind of promise of some slow ones.  You have respect for the abilities of your students -- to a point, and not beyond.  You show a sense of humor.  

Why would you keep all that powder dry when presenting an article to law-review editors?

In the second place, if you're unaware of your initial readers' context, you're missing the fact that the beginning of the 3L year is (for many of your target students) a rich and exciting time to be alive.  The textures of identity, and of the world of affairs, have changed.  However small these students might have felt during 1L year, and however intimidated they were by the legal cultures they began to enter 2L year, they entered a new mode in July.  Do you remember what it was like?

The question of the day:  How much do you tailor your article introductions, initial footnotes, and cover letters for the reader who has just finished his or her first real hitch in the service -- as a summer associate, public-law intern, or similar?  And:  shouldn't it be more?

There are two points to make about the intellectual context created by August of the 3L year, for the type of students who read and evaluate your work.  

The first is that, after their summer jobs, they feel they are entering a highly practical and results-oriented world.  Discovery disputes, reams of business documents for review, the thorny caselaw that lies behind what seem the simplest research questions:  all of these things, they are becoming aware, are driven by the needs of a client.  That client may be a big business or the public interest, but the effect is the same.  Law has real-world effects, and is a tool for doing things besides itself.

The second amazing thing about the summer job before 3L year (the context for your article) is that, by and large, against all odds, law school actually prepared them for it.  

Even as we marvel at the way legalities interlock with the business context, we marvel just as much at the fact that the real world interlocks with the law you have taught us.  We see your abilities in a new way, against a larger civic background.

Overall, the summer before 3L year feels like the beginning of a kind of intellectual adulthood, the start of a lifelong task of linking an intellectual framework with real-world problems.  Such linkage gives traction on both.  The framework of law (and law-teaching) has new kinds of value as a result, and the journal editor has a new kind of respect for it.

None of this is meant to suggest that abstract or philosophical work is not appreciated in the journal office.  On the contrary, the summer has re-grounded our confidence in the worth of law-professors' efforts, especially when it comes to seemingly small or obscure doctrinal matters.  We know that cases can hinge on a single verbal twist to an idea, or a single side fact that triggers some kind of immunity.

What I do want to suggest, in a nutshell, is that the presentation of a law-review article -- whether in a cover letter or in the first few pages -- should include some example of how it impacts the world of laypeople.  This does not mean telling us that certain types of people will be affected by an idea:  it means showing us how this happens, in a particular case, whether real or hypothetical.

The rhetorical work you do to situate your article in the context of actual civic life impresses us enormously, because now -- having spent two months intensely immersed in a practice setting -- we have a strong sense that interlocking the abstract with the practical is the point of the legal profession.  We know such interface is challenging, and we have a heightened double respect:  on the one hand, for doctrinal development, and on the other, for imaginative engagement with potential constituencies, clients, and functional entities from the municipal to the international.

In a word:  as you present your idea and your argument, give us AN EXAMPLE up front.  Even in the most purely doctrinal article, an example is the key garnish.  I can count on one hand the number of cover letters this summer that have included an example of a doctrine in action.  

(The next best thing, incidentally, is to highlight in your cover letter, along with the rigor and coherence of your ideas, your five to thirty years' experience as a practitioner in a particular field.)

One other word about this parochial context of law-review editing, in anticipation of my next post.  

The summer before the 3L year, beginning with the end of exams in May, is a time when students begin to read and watch the news in a new way.  The things going on in Congress begin to look like the first draft of legislative history, and the stories about civil disputes and prosecutions seem less banal as we understand the work that goes into hashing them out.  This year in particular has been special, as the most abstract and apparently useless doctrines of con law (including that old-hat dead letter, the commerce clause) have mattered a very great deal in the political and economic life of the country.

This summer, in a word, legal academia hit the big time.  There has been no shortage of commentary, but it is worth considering the particular effect this had on law students.  I intend to argue, in an upcoming post, that in July Chief Justice John Roberts made a very significant intervention in the development of this law student cohort's civic self-understanding.  This too is part of the context of your article presentations, and it is the context for your first few classes as well.  

I welcome reminiscences about, or challenges to, the end of the 3L summer as I have described it.  As always, I hope it is bracing and not discouraging to realize that your work initially faces such an idiosyncratic audience as my colleagues and me.

Posted by Jim von der Heydt on August 18, 2012 at 07:56 AM | Permalink

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