Conflict and Legal Scholarship

Conflict is essential to fiction.  The classic Aristotelian framework for drama is based entirely on conflict: conflict between two people, between nations, between the protagonist and the forces arrayed against her.   Non-fiction also thrives on conflict: witness the crop of successful reality shows or documentaries (penguins vs. the elements).  Even legal scholarship requires conflict.  Most law review articles begin by setting forth a problem, a puzzle, a circuit split.  The article then endeavors to resolve the conflict by providing a new insight or creating the proper path to resolution.

With that being said, I think the Yale Law Journal's embrace of conflict has good intentions but a problematic execution.  In their "Call for Debate", the YLJ editors solicit a set of articles that are "engaged in a dialogue on a single compelling topic."  Noting that they want two pieces that "speak to each other," the editors encourage the submission of an incomplete paper and a matching prospectus so that the articles can develop together more organically.   They offer two examples: the Manning-Eskridge debate over statutory interpretation, and the Sunstein & Vermeule-Steiker-Donohue & Wolfers debate concerning empirical studies about the death penalty.

Articles and responses are certainly not new to legal scholarship.  What is new, or at least uncommon, is a solicitation of a matching pair at the same time.  My co-Blawger Paul thinks this is an excellent idea.  In the interest of further conflict, however, I must disagree.

In the traditional law review article-and-response, the article is sent out, read, and then responded to by another academic.  If the responder got the article pre-publication, the response could presumably be in the hopper before the article was published.  But the original author did not pick her interlocutor; the review did.  I am curious about how the Manning-Eskridge and Sunstein & Vermeule et al. debates came to life.  Did these teams present themselves as pre-arranged duels?  Or did the Stanford and Columbia editors choose the responses or the responders to the original article?

If the "debate" comes as a pre-arranged set, I worry that it will be "conflict for show."  Like a musty vaudeville act, the combatants will have all their moves choreographed ahead of time.  ("Two law professors walk into a talent agent's office . . . .")  Having chosen each other, the two sides have to have some degree of agreement.  The natural human tendency will be to pick a sparring partner who is good but doesn't level any really dangerous punches.  Knowing this, the two sides will be encouraged to amp up the level of combat, at least on the surface, to make it look sufficiently contentious.  In the end, the debate will be less like a true match and more like pro-wrestling: it will look really bad but the whole thing will be scripted ahead of time.

If the Yale editors want a real debate, they will probably have to pick the two sides themselves.  That may not be too hard, and an author may even be helpful in proposing potential debaters.  But I fear that a pre-packaged debate will not be a true debate at all.