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Tuesday, May 16, 2017

Connecting the Law Review Dots

I quite enjoyed Benjamin's post on the overused "under-theorized" line in law review articles. As his link to an old post of mine suggests, it is on a topic dear to my obsessive little heart.

I have no great quarrels with his post, but I would suggest that there is no actual paradox at work. Perhaps there would be if calling something under-theorized were sincere and accurate most of the time that this language is used. But I suspect that it isn't. Sometimes, calling a topic under-theorized is just throat-clearing. Often, it's strategic rhetoric for purposes of placement. Much of the time, it is somewhere in between that and a slightly but importantly inaccurate way of defending one's decision to write about a particular topic. If, instead of the standard and ostensibly impressive-sounding--the less impressive the more often you see it; paragraphs that could be saved as boilerplate are not really impressive, but they are aimed at 24-year-olds who have not seen them hundreds of times before--"under-theorized paragraph," authors wrote what they actually mean, and in plain English, we would more often see something like the following: "[X] is an interesting topic. Plenty of interesting things have been said about it, but they have not exhausted interest in the issue (my interest, at least). Even if they have, I have a few things to say about it too." I would welcome that sort of candor, and less standard-issue academic verbiage. 

Benjamin's post is also arguably connected to Andrew's post about "game-changing" law review articles, as a commenter on that post suggests. And it is connected to another pet peeve of mine, also noted in the comments: the equally standard-issue "novelty paragraph." Law professors routinely write about issues that have been written about before--quite understandably, in my view, since little is new under the sun and people often like to write about old but big and interesting questions. But law professors also like fancy placements and the credentialization, platform, and opportunities for advancement that come along with them. There are three standard strategies for trying to satisfy both urges. First, one can claim--usually ridiculously--that this is the very first article to deal with X, or something of the sort. That's the novelty strategy. Usually and amusingly, the sentence asserting that an article is The First Article on a topic is accompanied by a footnote along the lines of, "Of course, there are honorable exceptions..." That footnote then lists some of the prominent prior articles that, as it turns out, also address the topic that this article is supposed to be the very first to address. Authors, it seems, are willing to do both things--to claim that an article is The First, and to cite prior articles on the same topic--and law review editors are willing not only to stomach this, but to reward them for it.

There appear to be few credible limits to this strategy. But in some cases, either the evidence of prior treatment is overwhelming, or the author has a reasonable amount of shame or integrity. In those cases, the thing to do is break out the second strategy: the "under-theorized" strategy. Yes, lots of people have written about X before. But X remains "under-theorized." And that is this article's reason to exist and claim its own share of the spotlight. The under-theorized paragraph is thus arguably a sub-category of the novelty paragraph. Or perhaps it could be seen as an alternative strategy for instances when a novelty paragraph would be glaringly false.

A third strategy, one that I think is increasingly popular but less noticed as such, is what we might call the taxonomical or Clever Label strategy. It bears some relation to the other two strategies. Yes, X has been written about before. Yes, it has already been "theorized" plenty. But this article offers a remapping of the well-covered territory, in a way that makes better sense of all those other articles that have come before. That's the standard taxonomical approach. Sometimes, the author will place such implicit stock in the new Clever Label that he or she will not even bother to concede that the territory has already been marched into dust. The implicit claim will not be that the new article is valuable because it offers a way of making sense of the issue that takes into account and builds on the earlier literature, but that the new Clever Label is so great that the label is the novelty. I love some of these articles; hey, the best of them really are clever, and sometimes really do usefully place the earlier literature in a new light, putting different approaches into conversation with each other in a new way. But I am extremely leery of those articles that, TED-talk-like, treat neat new labels and snappy, no-colon-and-subtitle-needed titles as genuinely new and profound substance. They often place well, however. So long as they do, they're not going away.

All of these are strategies for placing articles well, not for placing them as such. It is not hard to place an article somewhere. Rather, these are efforts to convince a young editor at a well-placed law review that the article under submission is not just a fine and creditable discussion of something that has been discussed before but merits continued discussion, but that it adds something sufficiently new and terrific to the mix that it deserves prestigious placement. Most scholars, if they're lucky, turn out singles and doubles, along with the occasional pop fly. Claiming that your article is the first, or the first to properly "theorize," or that it provides the niftiest new labels, is a way of trying to convince editors that everything you do is at least a triple, if not a home run. And that's the connection to Andrew's post on game-changing articles, and the comments on it. If the legal academy and its publishing arm were functioning reasonably well, we would look for a lot more singles and doubles--and in hiring new scholars, we would look for evidence that they could turn out a long succession of solid base hits. But entry-level scholars have for some time now been trained by their schools to turn out articles that at least look like triples or home runs. In reality, many or most of those articles are actually either easily fielded fly balls or carefully disguised singles. All those paragraphs up top--whether they involve novelty claims, "under-theorized" claims, or Clever Labels--are ways of making us think otherwise. It's far from clear to me that this is the best way to encourage good habits or sound scholarship.  

Note that I say "making us think otherwise." Usually, with legal scholarship being the comic and reformist industry that it is, this would be the point for someone to write about how peer review would solve all our problems, by putting into place a system that would not require scholars to aim all these strategies at easily cozened 24-year-old law review editors. That might be true in especially sober or empirically based disciplines. Articles like this make me doubt it is true for all disciplines. Much depends on the soundness of one's peers. And I think there are at least two problems with law as far as this is concerned. First, we appear to be impressed by these strategies. Authors of grandiose articles that provide the illusion of clearing the bleachers, and that place well, do well on the hiring market. It's not the 24-year-olds doing the hiring, so I don't think we can fob off our problems on them alone. Second, all this has been going on long enough that I fear we have internalized all these tactics. If we insist on hiring through the fellowship process, and if fellows are being trained in the use of these strategies, and if they then succeed on the hiring market and mentor and judge the next generation of applicants, then I see little reason to hope that peer review alone will save us from our own sins.

It might save us, if one adopted the cynical view that everyone realizes that these strategies are just that, and that many novelty claims and other such boilerplate should be disregarded in favor of a focus on the substance. But in a field in which everyone on the faculty judges specialist articles when voting on hiring, it's hard to judge soundly on the substance rather than the bells and whistles. And I think this is actually a somewhat naive, first-order form of cynicism. It assumes that everyone is smart enough to know better, and that they are also strong enough to act better when they know better. A more convincing cynical view, to my mind, would conclude that we are not always smart enough to know better; that we suffer from the same cognitive defects as everyone else, and thus are likely to fall for the same tricks as everyone else, especially if we have profited from and internalized those tricks; and that even when we know better, we may lack the strength of will to resist in the face of professional norms, the praise of recommending professors at big schools, and the votes and voices of other members of our own faculty. Even if I am usually aware enough of and peeved enough by the kinds of things I have written about here to spot them when candidates come calling, I am sure I am not always strong enough to stick to my objections in the face of those influences, especially when I know that the strategies work in the wider world and I would like my law school to enjoy enhanced prestige. And I do not think I am significantly weaker-willed than most of my colleagues. So I have little good cheer to offer, other than the faint suggestion that we ought to be spending more of our time looking for solid base hitters than for long-ball hitters. 

Posted by Paul Horwitz on May 16, 2017 at 06:18 PM in Paul Horwitz | Permalink


I think I agree with everything Paul says, and would just add that part of this may be a byproduct of the legal academy embracing VAPs and fellowships in the last 15 years. That move has led to a increasing standardization in the form of junior scholarship, as entry-level scholars often have been formally "trained" in the way to write an article as they prepare their first works to go on the market.

Posted by: Orin Kerr | May 16, 2017 8:06:40 PM

Someone needs to begin compiling a list of these types of tropes in law review articles and then put together something that is completely gibberish but which makes all the right moves. Basically a Sokal Hoax for law reviews.

What are the odds that an article which says nothing, but says it in the right way, could get published in a tier 1 school's law review?

Posted by: Derek Tokaz | May 16, 2017 11:51:08 PM

I love the novelty paragraph! In fact I wrote a whole article that exists solely to justify it: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2928263. Now I am kicking myself for not claiming that the phenomenon was under-theorized before Paul came along and wrote the definitive blog post.

Posted by: Chris | May 17, 2017 1:55:00 PM

I think Orin's got the explanation for this (above).

Posted by: Rick Garnett | May 18, 2017 8:37:40 AM

Modest proposal: hiring committees should be blind to the name of the law journals in which candidates' publications appear. (Maybe the chair looks first to make sure there aren't garbage publishers in there.) Since we know law review "ranking" is bullshit, and since we know it encourages this kind of unethical behavior, why not mechanically remove the incentive like we do with other sources of stupid bias?

Posted by: Paul Gowder | May 18, 2017 9:59:29 AM

Excellent suggestion, in part because of the fun of watching people scream about it.

Posted by: Paul Horwitz | May 18, 2017 10:59:44 AM

Of course I agree with Orin too, and hope my discussion in the (typically long and over-stuffed) post makes the same point. As I've written, there are lots of reasons why this model has taken hold, and I think it has its good points. We can rely on the standard practitioners-vs-academic-types arguments to be made; lots of people have discussed that. But beyond that I would like to see more, and more searching, public discussions of the downsides to this model. That would include some candid public discussion by those who run the most prominent fellowships and train many of the successful entrants into law teaching; but I haven't seen much of that so far. As I said in the post, given not only the actual positive aspects of the model but the fact that many of us and our colleagues reasonably want their hires to make a splash and be successful in the eyes of the reputation-forming community, and/or have internalized the criteria by which these sorts of candidates do well, people who have some concerns about the current model are swimming upstream right now.

Posted by: Paul Horwitz | May 18, 2017 11:09:06 AM

I agree with Paul when Paul says he agrees with Orin saying he agrees with Paul.

Posted by: Derek Tokaz | May 18, 2017 4:18:05 PM

Paul's first sentence of his last paragraph is correct. Everyone has written "that paragraph" (probably several different times in the traditionally over-stuffed law review article) where you sat back, read it, and said, "that's such bullshit. But it sounds good. And I have to write it."

Personally, I'd love to have it be ok that I left out the bullshit paragraphs. That's what they are, after all. We might as well call them what they are.

Posted by: YesterdayIKilledAMammoth | May 18, 2017 11:35:28 PM

I love this post. I like the idea of an "on base percentage" for law review articles. I was watching my son's little league game today, and one of the better hitters kept striking out. His mom said he was so determined to hit a home run that he'd altered his swing. So they told him they'd give him some money for every single - no credit for extra bases. A brilliant idea.

I suppose I agree with Orin's explanation. I was a fellow, though I had been a law partner before that and developed my own writing style at that point (and thus resisted some mentoring - I suspect to my detriment). But I once put the "novelty" claim in my opening paragraph on advice of a colleague who said I could take it out after acceptance. Stanford sent it out for peer review, and the reviewer rightfully called BS on it. I was so embarrassed I've never done it again - at least not so blatantly.

Posted by: Michael Risch | May 21, 2017 8:54:38 PM

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