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Tuesday, July 31, 2012

The Law Review Note: The Author as Heli-Skier

It is law review note topic selection season, and students across the nation are scurrying about looking for topics and performing what I gather is called "preemption check."  From the perspective of an outsider, I am utterly baffled by this process. 

The general model seems to be that of the heli-skier.  The object is to hunt down a patch of land untouched by any other academic writer, so that one can make fresh tracks in the undriven snow.  The legal terrain has to have a certain sort of look: appellate court splits are the beau ideal.  In much the same way, the particular arrangement of land and snow must look just so to the prospective heli-skier.  Either the failure of the terrain to conform to that premeditated look or the appearance of another skier's tracks is enough to send the helicopter scooting away for something higher up and even more distant from the work of human hands.

The model is perverse.  It seems designed intentionally to isolate the student from the legal academic world.  The purpose of the "preemption check" is not to acquaint the student with other writing on his or her chosen topic, deepening the student's knowledge.  It is instead to drive the student away from that topic without so much as fully reading, let alone fully digesting, the article.  The notion seems to be: if someone has written about the issue before, there can be nothing worthwhile left to say about it.  The topic has been exhausted.  And it has been spoiled: pre-masticated and therefore unconsumable.  

Thus begins a spiral toward increasingly arcane subjects -- a new Inferno where the unifying theme isn't wickedness but banality.  The basic flaw in the model is the assumption that what is interesting or worth thinking about consists exactly in what nobody has thought about before.  The  note writer, like the cheese, stands alone.  That assumption squeezes the relational joy out of writing.  Probably there is some recondite purpose in doing things this way which became largely obsolete 30 years ago; but it comes at the cost of having students try, often for the first time, their hand at legal scholarship. 

Posted by Marc DeGirolami on July 31, 2012 at 09:03 AM | Permalink


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I think that some of the best student work comes as reactions to newly published scholarship. Something that they have read in class and got a gut feeling that the author was just wrong about some aspect of the argument that they were making. It provides them with a good starting point for their work (i.e. topic selection), and, relevant to Marc's point, should likely deal with most preemption issues. It should deal with preemption issues because the piece that they are reacting against ought to have cited to, if not actually addressed any currently existing counter-arguments.

Posted by: Matthew Bruckner | Aug 1, 2012 7:00:12 AM

Orin writes: "It seems that whenever a professor writes something in the privacy area that isn't 100% pro-privacy, student notes disagreeing tend to follow relatively quickly."

Actually what used to bug me were the student notes arguing the other side from what I've written that didn't even cite my work or address my arguments. This was particularly the case with notes that swallowed the ICANN view of the world and rhapsodized about the UDRP or public-private partnerships as a method of Internet governance.

So, maybe Oscar Wilde was right? ('The only thing worse than being talked about is not being talked about').

Posted by: Michael Froomkin | Jul 31, 2012 10:30:44 PM

Marc writes:

Why isn't it in turn useful for the student to write a note simply reacting against, or otherwise in relation to, the putatively useful thing that an academic is saying about some practical subject? Again, maybe there are law review notes out there which take this approach, but that does not seem to me to be the norm.

I have seen a lot of student notes like this, actually -- including around a dozen or so taking on my articles and arguing I am wrong. (It seems that whenever a professor writes something in the privacy area that isn't 100% pro-privacy, student notes disagreeing tend to follow relatively quickly.) As for why it doesn't happen more broadly, I suspect humility plays a role: Students look up to professors and figure the professors must know something they don't.

Posted by: Orin Kerr | Jul 31, 2012 5:15:30 PM

All quite interesting ~ and all moving me to wonder: Why is the norm (I think it's the norm anyway) to have students write these papers as 2Ls? Aren't they far more likely to write something of value, to themselves and others, if they wait until after the 2L year?

Posted by: Joe Miller | Jul 31, 2012 1:50:52 PM

A lot of student notes are descriptive, except for the last few paragraphs; which means that if someone has written on (i.e., described) the same topic before, it really is preempted.

Posted by: Bruce Boyden | Jul 31, 2012 12:27:48 PM

Judging from the enormous number of student notes making extraordinarily similar arguments on recent high-profile decisions, I have to wonder whether we need more preemption checks rather than fewer.

Posted by: James Grimmelmann | Jul 31, 2012 12:06:41 PM

Here's another advantage to what one might call the "reactive model" of student note writing.

In addition to the difficulty that TJ points out of coming up with an idea, I have found that the hardest thing for students is to narrow the idea down to a specific point or thesis. In some ways, this is the least familiar part of legal academic writing and it can be tough for them to understand just how narrow is sufficiently narrow to make for a nice, tight paper.

But the reactive model helps the student, by directing him or her to a specific article or set of articles on a particular (practical) subject. The student would then come up with a position by reacting against the various positions staked out in those several pieces. The student's own piece would take shape as a series of discrete and serial reactions to the writing of other people. The subject could be as important or practical as the student wished, but it would engage the student deeply with what is already out there. That would be the principal point of doing a note.

Posted by: Marc DeGirolami | Jul 31, 2012 11:23:41 AM

I think there is some truth to both what Michael and Marc are saying. The theoretical standard---at the law review I was on and I imagine at virtually all law reviews---is only that no one must have said what you are proposing to say in the same way that you are proposing to say it, not that no one has written in the area at all. But, as a practical matter, rising 2Ls who are trying to figure out their note topic don't really know what they are going to say and how they are going to say it--this is quite unlike us more seasoned folks who usually know what they want to say (at a fair amount of detail) and then start writing the article.

If you are a student who is writing an article not because you already have an idea in your head, but because you have to write the article to meet the law review's membership requirement, then there are only two ex ante ways to ensure you are not going to eventually say the same thing as someone else: (1) you can promise yourself early on to disingenuously "draft around" whatever prior art might come up, so that you will take whatever position is new, regardless of whether you think the position is right, or (2) you can look for a topic where nobody has said anything. I sure hope that law students don't do (1), so that pretty much leaves (2) most of the time.

Of course, we can hope for the ideal of (0), where law students write notes because they have an idea that they want to communicate, and not solely to satisfy the writing requirement (or to have a clerkship writing sample), but that is not very realistic.

Posted by: TJ | Jul 31, 2012 11:11:48 AM

Orin, that's fair I guess, but there are lots of academics who do think that they are saying something useful to the world (I'd guess most academics think that they are saying something exceptionally useful, if only the world would listen). Why isn't it in turn useful for the student to write a note simply reacting against, or otherwise in relation to, the putatively useful thing that an academic is saying about some practical subject? Again, maybe there are law review notes out there which take this approach, but that does not seem to me to be the norm.

And wouldn't this have the healthful effect of pointing out the usefulness of lots of academic writing to those folks who are otherwise skeptical?

Posted by: Marc DeGirolami | Jul 31, 2012 11:09:09 AM

I think the model is to say something useful to the real world. Given that this isn't always something high on the list of today's academics, I tend to think this is a smart strategy.

Posted by: Orin Kerr | Jul 31, 2012 10:29:56 AM

Well, what Michael says is perfectly reasonable. Making sure that nobody has said the exact same thing as one is planning to say makes sense. But that's got to be an exceedingly rare situation. I can't remember ever finding that somebody has said exactly the same thing that I am planning to say on a given topic (maybe I have not looked hard enough), and I have to imagine that most people have that experience (am I wrong?). Perhaps I've simply misunderstood what a preemption check is.

But I suspect that if the process is really about finding virgin snow at all, it can become something very different than simply confirming that one's specific point of view on a given subject has not been expressed before in just the manner that one plans to express it.

Posted by: Marc DeGirolami | Jul 31, 2012 10:26:27 AM

This sounds little like the preemption checks I recall doing as a student, still do now, or encourage students to do. What we check is not 'that no one has written on the topic' but rather that 'no one has already said what you are saying on the topic'. Finding a new path through heavily traveled ground, or making a new structure out of oft-used materials is a wonderful thing if it can be done.

"Preemption check" is just law review jargon for 'saying something original' or 'contributing to scholarship'. Finding virgin snow is one easy way to demonstrate to student editors that one is at least a little original, but it is not necessarily the most interesting one.

Posted by: Michael Froomkin | Jul 31, 2012 10:10:08 AM

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