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Tuesday, April 02, 2019

The Joke's On Us

Like many others in my little world, I read with regret Larry Solum's post yesterday announcing that he had discontinued his tradition of April Fool's Day entries offering parodies of articles by well-known law professors. Of course it is his choice, and it is an easy one to understand and sympathize with. But we will miss it, and hope his suggestion that it might be "revived in happier times" won't follow the same timeline and result as volume 2 of the third edition of Tribe's treatise on American constitutional law. 

In his post, Larry wrote, among other things: "Some of the spoofed authors wrote me with great concern, because they believed that someone had posted a fake article under their name. Others reported that they had received concerned emails from friends about the odd content of their new article. The authors were real people, and some of them have been offended by the posts or annoyed by the fall out. And over the course of the last few years, the legal academy has become increasingly politicized, heightening the the offense that some may take to the spoofs." Again, one understands all this, and of course it's worth remembering that these are indeed real people. Even Cass Sunstein is a real person! (And not, on the evidence of his publication rate, either a syndicate or a set of clones.) It's quite understandable if Larry, for whom the spoofs were a gratuitous offering and one that no doubt took a good deal of work to do as well as he did, didn't want the tsuris of having to deal with offended or annoyed colleagues. Still, it's worth noting that the people whose work he parodied were, by design and almost without exception, well established and tenured at some of the most prestigious, reputation-conferring law schools in the country. As real people, they surely vary in the thickness or thinness of their skin and in their degree of amour propre. But if anyone in our field can stand being parodied--and to my mind that category should include, at a minimum, everyone with tenure--surely they can.

If Larry's decision seems cause for lament, it's mostly because I enjoyed the parodies. More particularly, my lament has very little to do with concerns about supposed politicization within the legal academy. That supposition may be accurate. But I'm reluctant to draw strong conclusions about it without more evidence, and I'm unlikely to have that evidence. I'm unlikely to be in the right rooms to hear the right conversations that would prove or refute the thesis,  at least as it applies to more consequential matters. If law professors out there do absurd things like refusing to cite the "wrong" people or arguments even when those citations are relevant to their work, pushing prestige-conferring law reviews to publish certain people or views and not others, or finding publicly acceptable pretexts to support certain candidates and oppose others on illegitimate grounds, they are unlikely to write and tell me so. (Whether they should remain in the legal academy if they engage in misconduct like this, or whether their proper calling lies elsewhere, is a separate question. But I don't want to pronounce on that based on what I have made clear is something I can't even say exists.) Of course one can find examples of politics and of offense on Twitter. But I am trying to wean myself from that unhealthy place. Moreover, not everyone there engages in that sort of behavior, and those who do may be exceptional and inclined to do those sorts of things anywhere. 

Beyond the loss of personal pleasure, a more serious reason to lament this is that the legal academy, like any institution with a set of norms and practices that often become ossified and sometimes become highly exaggerated, is such fertile ground for parody. That's not a criticism of the legal academy as such. Almost any fairly formalized activity is also a potentially funny one, and a great deal of legal scholarship and its practices--especially those around the "branding" and selling of law review articles and the writing of abstracts--are highly formalized. Parodying what we do is a way of puncturing the bubble of our own self-seriousness. More important, perhaps, is that it helps put in high relief the kinds of things we acknowledge to each other or (sometimes) to ourselves but talk about publicly less often: the tropes, tricks, games, moves, and tactics that we consciously or unconsciously engage in when we do what we do, and especially when we try to bring what we do to market. It's not just that we ought to be able to laugh at ourselves and our own little place in the human comedy. It's that doing so is a useful way of revealing ourselves to ourselves, calling some of our standard practices into question, and showing a little humility and a sense of irony. Leaving aside the elite law professors Larry wrote about, who are indeed real people but should be in a position to stand all this (and in some cases would no doubt benefit from it), if there are concerns about punching "up" or "down," we should at least be able to parody, laugh at, and as it were punch ourselves.

P.S.: Along those lines, let me offer three possible titles for a Horwitzian "forthcoming article": 1) "A Pluralist Approach to Pluralism"; 2) “The Sub-Basements of Institutional Architecture: Rethinking the First Amendment Rights of Newspaper HR Departments and Church Annual Picnic Committees”; and 3) “A Conflicted Plea for Sanctimony About Ethical Legal Scholarship.” The last one seems both lifelike and especially apt in the context of this post. But of course most of the fun with Larry's parodies came from the abstracts, given that, as I've suggested, the practice of abstract-writing has become so standardized and thus often hilarious. Although I don't write about private law, I'm waiting for the day when an abstract begins like this: "Although private agreements are a cornerstone of law, they are surprisingly neglected by legal scholars. This article is the first to take a closer look at this phenomenon, which I call the ‘contract.’ I advance the novel and counter-intuitive argument that these 'contracts' depend most centrally on mutual understanding and consent.  This thesis has surprising and far-reaching implications across a range of cases and circumstances."   

Posted by Paul Horwitz on April 2, 2019 at 01:24 PM | Permalink

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