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Tuesday, July 20, 2021

Jot on Pozen and Samaha's "Anti-Modalities"

I don't normally promote my Jotwell contributions or, less forgivably, those of my other contributors to Jotwell's con law section. But I am sharing this one, which I hope and think readers may enjoy. The subject of the jot is David Pozen and Adam Samaha's excellent recent article "Anti-Modalities." As with many of my jots, it is somewhat dual-purposed: both an effort to explain why an article is praiseworthy, and an opportunity to suggest problems or unfortunate trends in legal scholarship generally, to which a "jot-worthy" article serves as a contrast and exemplar. Here's the opening: 

A specter is haunting modern American legal scholarship—the specter of branding.

Whether it is a marketplace of ideas or just a marketplace, legal scholarship today overflows with neologisms, “I call this”-es, and other efforts to hawk our wares to law review editors and, perhaps, other scholars. Useful at times, branding is often unnecessary or silly. It routinely announces a purportedly un-noticed phenomenon that in reality fills whole library shelves. (One awaits with resignation the inevitable article proclaiming, “I call this activity, in which two parties reach a binding and often memorialized exchange of promises, agreementification. It urgently deserves closer study.”) Given the frequency with which legal scholars treat as “new” arguments or observations that were old before they were born but lie outside Westlaw’s reach, branding often involves neither new wine nor new bottles, but old wine in old bottles with a new label slapped on. It is bad enough if these efforts are cynical, worse if they are not, and perhaps worse still when they are a bit of both. We might call this the Late Capitalism-ization of legal scholarship.

With that cheerful preface, it is a pleasure to see a new label that actually performs a useful service, spotlighting something we might otherwise neglect. It is doubly pleasing because the article neither celebrates nor condemns what it labels. It walks us through the phenomenon with a proper sense of its nuances and its costs and benefits. Written by David Pozen and Adam Samaha, Anti-Modalities exemplifies the difference between a meaningful scholarly label and a mere marketing gambit.

A bit on social media and other platforms and the dangers of elite law professors (which, arguably, from a class perspective, is all of them) engaging in "code-switching:"

Pozen and Samaha worry that “the anti-modalities both reflect and perpetuate the intellectual insularity of mainstream legal culture,” that their subtle entry into constitutional decisionmaking “only make[s] ‘the constitutional-law game’ more complex and impenetrable to nonspecialists,” and that this is one source of “legal estrangement” between lawyers and “nonelites.” Insularity born of the exclusion of the anti-modalities is indeed one sort of problem. But code-switching is another.

All sorts of platforms, and especially social media, allow and encourage constitutional lawyers to make anti-modal arguments on public questions of a constitutional nature, or—perhaps worse—to engage in a mix of modal and anti-modal arguments. They do not disclaim any professional status in these forums; most of them trumpet it (and would be ignored if they didn’t). They do so without any necessary skill in the anti-modalities, and without making clear what role they are playing and whether particular arguments are modal or anti-modal. One might think that anti-modal engagement on public issues in public spaces would reduce the “resonance gap” that worries Pozen and Samaha. But the mixture of modal and anti-modal argument by constitutional lawyers in these spaces may, as they suggest, add to the impenetrability of constitutional law. The very privilege of code-switching at will, while still loudly asserting one’s status as a professional player of the game, may exacerbate rather than narrow legal estrangement between elites and nonelites. And the lack of clarity about what role these elites are playing, personally or argumentatively, may sap institutional trust in “mainstream legal culture” and thus widen the gap further.

And an amusing footnote to the description of the concept and label the article introduces as "new:"

Semi-new, actually. The label “anti-modalit[y]” appears briefly in a 2013 article by James Grimmelman, in a different but conceptually similar fashion. To my delight, a much closer version also appeared in 2014 in parodic form, in one of Larry Solum’s April Fool’s abstracts. “Antimodalities,” here, is an affectionate spoof of Suzanna Sherry’s criticisms of constitutional theory, in the form of an argument that despite “the insistence of [constitutional] pluralists that constitutional argument is limited by a closed list of modalities,” in reality many key Supreme Court decisions are “‘antimodal’ decision[s] relying on arguments from outside the modalities.” That sentence could easily appear in the “real” article discussed in this jot. I see no reason to think the authors of the present-day Anti-Modalities were aware of or remembered this parody. But I do hope they share my delight. It is no reflection on the genuine merits of Pozen and Samaha’s piece that Solum is a fine parodist or that, in legal scholarship as elsewhere, history so often repeats itself—first as farce and then as reality.

Enjoy--and read the Pozen and Samaha article! 


Posted by Paul Horwitz on July 20, 2021 at 08:39 AM in Paul Horwitz | Permalink


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