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Saturday, May 02, 2009

The Review Essay (or, Against Novelty)

The review essay is widely deemed an inferior piece of legal writing to the full-fledged article or even to the essay full-stop.  I have often wondered why.  I think the review essay is disparaged primarily because it is derivative.  It isn't as original as the article.  Its claims are not as novel.  It depends upon the ideas and claims made by the object of its attentions.  It's just a reaction to someone else's original work.  And what legal scholars want, above all else, is to say something new, something that has never been uttered or heard before and that will leave their readership (such as it is) ravished in the wake of its raw and unconditioned originality.

In this maiden-voyage post, I want to argue that the maligned features of the review essay are exactly its virtues.  My friend Paul H. has in the past written positively on this site about the review essay -- he has, I think, praised its usefulness, economy, and readability.  I agree with much that he says, yet it strikes me that these qualities relate especially to the "essay" component of the review essay.

But the real virtue of the review essay is its studied lack of novelty, at least in the sense in which novelty seems to be prized in legal academic writing. 

The best part of the review essay is the review part.  Taking another scholar's thoughts seriously enough to examine them as the principal aim of a single piece is not the least intellectual virtue.  Learning how to respond to those arguments with delicacy and care ought to be considered a crucial part of the legal academic's art.  It is a scholarly delight to observe the manner in which experts in a field address one another's arguments, the styles and modes with which they engage the particular claims of their colleagues, and the ways in which their own thoughts gradually germinate and develop from that highly contextualized engagement.

The review essay is a sanitary antidote to certain illusions of legal scholarship.  Primary among these is the belief that only that which is entirely novel is worth saying at all.  In fact, novelty has an uncertain relationship to other scholarly virtues.  Some scholarship is careful, subtle, clever, fair-minded, rigorous, elegant, thoughtful, erudite...and novel.  But does scholarship become much less valuable -- qualitatively less worthwhile -- in the absence of that last feature?  Another thought -- much that is original does not descend from the heavens as a bolt from the blue.  Sometimes it emerges creepingly, painstakingly, as the byproduct (and not the overt target) of gradually accreting reflections and insights.  At all events, novelty should not predominate among the academic virtues.  An unqualified premium on novelty may actually disserve legal scholarship.  If it has been said before, no one will know any better.  No one will want to know.  Better not to know.

"Make it New!"  More than a few well-intentioned and kindly law professors have helpfully informed me in no uncertain terms that novelty is one of the unbreakable Commandments of legal scholarship.  But Ezra Pound himself might agree that in order to make it new, one must have a fairly clear idea of what "it" is.  And "it," as Louis Menand has observed, is the Old.  The Old clamors for engagement and response.  It invites marination.  The Old is the furniture adorning the academic house, and it's deceptively difficult to learn how not to crash right into it.  For young scholars, especially (like me!), the importance of being pickled in the Old -- of stewing for a good long time in academic work of the past and giving it patient and sustained attention -- is particularly acute.

The mystery is that it's surely true that no one writes anything in legal academia without citations. Many, many citations.  And citations by the kiloton do seem to suggest some level of engagement with the Old.  What, then, explains the comparative disdain in which the review essay is held?  Why is it considered a lesser beast?

I think the answer may lie in the thought that the review essay doesn't stand alone.  Its claims are not enough those of the author -- at least the author idealized as the solitary seafarer fearlessly navigating tempestuous and uncharted oceans (cue the Wagnerian soundtrack).  The review essay is not sufficiently autonomous because its content is invariably bonded to another person's ideas.  It isn't its own man, making its own heroically innovative claims.  This is novelty as ideology.

If this ersatz Romanticism is a view that anyone actually holds, I don't see much to commend it.  It is high time for the philosophy of legal academic writing to take the modernist turn (and only a century late...not bad for law).  It is the height of callow arrogance to believe that something is worth saying just in virtue of its novelty.  A novelty shop trucks in peculiar, insignificant, cheap, and ugly ephemera.  Why should that be the beau ideal for one's writing? Yet legal academic writing seems profoundly committed to the ideology of novelty.  Professor Volokh's tremendously practical book on the subject is confirmation enough (see p.13).  But purely derivative reaction, too, can stimulate originality, albeit of a different sort -- originality "from the bottom up," marinated in the Old, but slowly fermenting into something else, and without feeling it necessary to trumpet its novelty -- to bathe it neon lest it go unnoticed.  Legal academics ought to partake more liberally of the organized pleasures and stylized rigors of reaction (with student editors' help, of course).

The review essay goes some small distance to puncturing the illusion that novelty is and must always be best.  It compels the writer to think microscopically, within an architecture not of her own making.  It is a mannered mode of writing.  It is constraining to be forced to think in this way.  It is delimiting.  It is rooting.  One is not free to squirt out one's mind all over the page -- for all the world to see in the grotesque fullness of its barbarous and naked singularity.

So much the better.  The legal academy needs its Tintorettos and Vasaris.

[Thanks to Dan and the co-bloggers for inviting me.]   

Posted by Marc DeGirolami on May 2, 2009 at 09:11 PM | Permalink

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Comments

Great post, Mark. And, welcome.

Posted by: Rick Garnett | May 4, 2009 12:52:48 PM

Orin and Marc--see also Pierre Menard, Author of the Quixote.

Posted by: Sarah L. | May 3, 2009 7:13:00 PM

Orin, I think that I agree with both points, though I do not think I agree that they are neatly severable in the way you've severed them.

As to the first point, I agree that reviews, just like any other piece of writing (including blog posts), may be of variable quality. The key is in the second claim that you make -- that legal academics "save their best stuff" for the article proper because review essays "aren't valued very much." My own view is that they aren't valued very much in large part because of the ideology of novelty that I tried to describe and which you list as a second point.

And as to that point, again, I agree with you. It is certainly true -- undeniable -- that small contributions may be both new and valuable. Creeping originality is a lovely thing. But it is just those types of contrbutions that often can be made most effectively through a vehicle like the review essay as opposed to the article, for the reasons in the post. While the baggier, "independent" article is, structurally, far more vulnerable to the ideology of novelty.

Thanks for the comment.

Posted by: Marc DeGirolami | May 3, 2009 3:25:18 PM

Marc,

Glad you liked it. On a more serious note, I think there are two distinct arguments you are making. Argument 1 is that we should value reviews more than we do. Argument 2 is that novelty is overrated.
As for Argument 1, I think it depends. Reviews can be great, but they can also be total dreck. Most scholars know that reviews aren't valued very much, so they save their best stuff for other formats. Certainly reviews could be a lot better, and great reviews are very valuable.

As for Argument 2, I think it depends on what you think novelty means. I sense that you have an idea of novelty as a big leap forward. If that's right, I understand that you're critiquing the idea that scholarship has to offer some incredible new way of looking at the universe. But there's a contrary view, novelty as something that adds something new, no mater how big or small. I tend to think that there are few if any articles that satisfy novelty definition 1, but that it is critical for scholarship to satisfy novelty definition 2.

Posted by: Orin Kerr | May 3, 2009 2:56:44 PM

Orin, touche'! I've long thought that for law professors the author matters infinitely more than the substance; with a name like Kerr behind it, the post actually has a chance to be read.

Posted by: Marc DeGirolami | May 3, 2009 1:44:20 PM

The review essay is widely deemed an inferior piece of legal writing to the full-fledged article or even to the essay full-stop. I have often wondered why. I think the review essay is disparaged primarily because it is derivative. It isn't as original as the article. Its claims are not as novel. It depends upon the ideas and claims made by the object of its attentions. It's just a reaction to someone else's original work. And what legal scholars want, above all else, is to say something new, something that has never been uttered or heard before and that will leave their readership (such as it is) ravished in the wake of its raw and unconditioned originality.

In this maiden-voyage post, I want to argue that the maligned features of the review essay are exactly its virtues. My friend Paul H. has in the past written positively on this site about the review essay -- he has, I think, praised its usefulness, economy, and readability. I agree with much that he says, yet it strikes me that these qualities relate especially to the "essay" component of the review essay.

But the real virtue of the review essay is its studied lack of novelty, at least in the sense in which novelty seems to be prized in legal academic writing.

The best part of the review essay is the review part. Taking another scholar's thoughts seriously enough to examine them as the principal aim of a single piece is not the least intellectual virtue. Learning how to respond to those arguments with delicacy and care ought to be considered a crucial part of the legal academic's art. It is a scholarly delight to observe the manner in which experts in a field address one another's arguments, the styles and modes with which they engage the particular claims of their colleagues, and the ways in which their own thoughts gradually germinate and develop from that highly contextualized engagement.
The review essay is a sanitary antidote to certain illusions of legal scholarship. Primary among these is the belief that only that which is entirely novel is worth saying at all. In fact, novelty has an uncertain relationship to other scholarly virtues. Some scholarship is careful, subtle, clever, fair-minded, rigorous, elegant, thoughtful, erudite...and novel. But does scholarship become much less valuable -- qualitatively less worthwhile -- in the absence of that last feature? Another thought -- much that is original does not descend from the heavens as a bolt from the blue. Sometimes it emerges creepingly, painstakingly, as the byproduct (and not the overt target) of gradually accreting reflections and insights. At all events, novelty should not predominate among the academic virtues. An unqualified premium on novelty may actually disserve legal scholarship. If it has been said before, no one will know any better. No one will want to know. Better not to know.

"Make it New!" More than a few well-intentioned and kindly law professors have helpfully informed me in no uncertain terms that novelty is one of the unbreakable Commandments of legal scholarship. But Ezra Pound himself might agree that in order to make it new, one must have a fairly clear idea of what "it" is. And "it," as Louis Menand has observed, is the Old. The Old clamors for engagement and response. It invites marination. The Old is the furniture adorning the academic house, and it's deceptively difficult to learn how not to crash right into it. For young scholars, especially (like me!), the importance of being pickled in the Old -- of stewing for a good long time in academic work of the past and giving it patient and sustained attention -- is particularly acute.

The mystery is that it's surely true that no one writes anything in legal academia without citations. Many, many citations. And citations by the kiloton do seem to suggest some level of engagement with the Old. What, then, explains the comparative disdain in which the review essay is held? Why is it considered a lesser beast?

I think the answer may lie in the thought that the review essay doesn't stand alone. Its claims are not enough those of the author -- at least the author idealized as the solitary seafarer fearlessly navigating tempestuous and uncharted oceans (cue the Wagnerian soundtrack). The review essay is not sufficiently autonomous because its content is invariably bonded to another person's ideas. It isn't its own man, making its own heroically innovative claims. This is novelty as ideology.

If this ersatz Romanticism is a view that anyone actually holds, I don't see much to commend it. It is high time for the philosophy of legal academic writing to take the modernist turn (and only a century late...not bad for law). It is the height of callow arrogance to believe that something is worth saying just in virtue of its novelty. A novelty shop trucks in peculiar, insignificant, cheap, and ugly ephemera. Why should that be the beau ideal for one's writing? Yet legal academic writing seems profoundly committed to the ideology of novelty. Professor Volokh's tremendously practical book on the subject is confirmation enough (see p.13). But purely derivative reaction, too, can stimulate originality, albeit of a different sort -- originality "from the bottom up," marinated in the Old, but slowly fermenting into something else, and without feeling it necessary to trumpet its novelty -- to bathe it neon lest it go unnoticed. Legal academics ought to partake more liberally of the organized pleasures and stylized rigors of reaction (with student editors' help, of course).

The review essay goes some small distance to puncturing the illusion that novelty is and must always be best. It compels the writer to think microscopically, within an architecture not of her own making. It is a mannered mode of writing. It is constraining to be forced to think in this way. It is delimiting. It is rooting. One is not free to squirt out one's mind all over the page -- for all the world to see in the grotesque fullness of its barbarous and naked singularity.

So much the better. The legal academy needs its Tintorettos and Vasaris.

[Thanks to Dan and the co-bloggers for inviting me.]

Posted by: Orin Kerr | May 3, 2009 1:12:45 PM

There's another "ideology of novelty" aspect of this perceived conflict lying underneath this article: The "war" between the legal academy and legal practitioners. On the one hand, "review" essays are denigrated in the academy because they're not novel enough for academics... but, because of the way law operates in practice, that's precisely what makes them useful to practitioners (or, at least, more useful in many circumstances than articles trying to probe theory).

This arises because of the citation/precedent fetish in practice: Virtually nothing is worth saying if one can't demonstrate (preferably with a string citation to multiple authorities) that someone else has said it before. Of course, this slightly sarcastic view falls apart rather rapidly when dealing with unsettled areas of law; I've had the good/misfortune to be on the edge almost from day one of practice, when I was handed an appellate project due in a week because the responsible attorney took unforeseen medical leave. In Channell, Perry I and II, and Ellison (to name a few more-obvious examples), there was no controlling authority... and, in fact, all three matters involved previously untested statutory provisions. My briefs ended up looking more like law-review articles than, well, briefs (in fact, after the standard-of-review section there are no string citations anywhere in the Ellison brief, except when reconciling legislative history). So, perhaps, at least some of denigration of review articles comes from bad memories of law practice.

None of this is intended to defend either extreme, as neither is really all that defensible. On one tentacle, one reason that the rest of the university faculty is a bit suspicious of legal academia is that precedent fetish, which to their way of thinking doesn't really qualify as "research" in the first place (try explaining citation practices to a literature professor!). On another tentacle, even the most theoretically inclined law professor is far closer to the "real world" than is the average literature professor, whose written work tends to focus on very narrow theoretical areas. On yet another tentacle, review-type essays are largely disfavored in academia due as much to the tenure-review system as anything else -- the university fetish for advancing the state of knowledge, which (subconsciously at least) means saying something new rather than evaluating what has already been said to see if it still makes sense. On a fourth tentacle, law practice tends to overfocus on winning the current engagement, and not on preventing (or even winning) the next one; in this sense, denying "novelty" its place reflects bad/absent leadership and strategy, which (sadly) doesn't get much emphasis in law school. That's half an octopus worth of tentacles to demonstrate that it's not just in the law reviews per se... which is probably too much for a Sunday morning.

Posted by: C.E. Petit | May 3, 2009 12:06:22 PM

Patrick, thanks for the learned comment. I appreciate the economic/aesthetic insight enormously. It gives an anti-capitalist coloring to my own thoughts that I had not anticipated.

Posted by: Marc DeGirolami | May 3, 2009 12:03:09 AM

What an exquisite post! I'm particularly taken by the reference to the "ideology of novelty," which Werner Sombart diagnosed as one of the values peculiar to mature capitalism and best exempified in America's arrested development at cultural adolescence (see his essay on 'The Sociology of Capitalism').

By way of further illustration, consider the function of the ideology of novelty in the modern and post-modern world of art (Donald Kuspit attributes it primarily to the latter category), captured here in one of the many brilliant passages from Ananda K. Coommaraswamy's little gem, Christian and Oriental Philosophy of Art (1943; originally published as Why Exhibit Works of Art?):

"...[I]t is not the business of a museum to exhibit contemporary works. The modern artist's ambition to be represented in a museum is his vanity, and betrays a complete misunderstanding of the function of art; for if a work has been made to meet a given and specific need, it can only be effective in the environment for which it was designed, that is to say in some such vital context as a man's house in which he lives, or in a street, or in a church, and not in any place the primary function of which is to contain all sorts of art. The function of an art museum is to preserve from destruction and to give access to such ancient works of art as are still considered, by experts responsible for their selection, to be very good of their kind."

Or, to put it differently, what is beautiful and true in a work of art that serves our needs has no necessary connection to the pretensions to, and hubristic reveling in, aesthetic or artistic novelty and artistic ambition (For a cross-cultural introduction to the concept of 'beauty,' see Crispin Sarwell's Six Names of Beauty, 2004). The ideology of novelty is what blesses the full-fledged commodification of art, i.e., that process wherein "commodity identity overtakes and subsumes aesthetic identity" (Donald Kuspit). While "post-aesthetic" art relishes novelty, its products are more often than not "creative failures:" "Indeed, the inability to imagine beauty is a sign of the creative inadequacy of post-aesthetic modern art" (For the full argument, please see Kuspit's The End of Art, 2004).

The ideology of novelty goes hand-in-hand with an ethic of transgression for transgression's sake as the latter shares the former's disregard for an appreciation of the enabling character of contraints and rules. And it has an elective affinity with the Freudian conception of art as the product of cleverly disguised private fantasies as paraphrased here by Iris Murdoch: "Art (on such a view of it) is not the imaginative creation of unified public objects or limited wholes for edifying contemplation, with mystical analogies; it is the egoistically motivated production of maimed pseudo-objects which are licenses for the private concluding processes of personal fantasy."

As Nicholas Xenos has reminded us, both Adam Smith and David Hume keenly appreciated the manner in which "conspicuous display plays an important functional role in generating wealth in a commercial society, spurring social emulation and inspiring everyone to accumulate wealth in order to spend it on their own display." Hence the role of fads and fashions, the primary vehicles (outside of technology) for incarnating the ideology of novelty: "...good taste requires the abandonment of fashionable new objects once they have become common currency, and hence no longer marks of distinction, though it sometimes happens that the fashionable set, accustomed to the rapid changes in style necessitated by its precarious social lead, moves on to new styles without the old ones filtering down...."

Academic fashions, underwritten by the ideology of novelty--and pace Sunstein--have their own peculiar form of perniciousness.

Posted by: Patrick S. O'Donnell | May 2, 2009 11:44:46 PM

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