* A necessary note first. This post is about the first and last sections of law review articles, inspired by two recent articles I wanted to spotlight. I had the title in mind well before yesterday, when a discussion broke out about basic decency versus opportunistic trolling in judicial opinions, occasioned by the oh-so-clever use of the phrase “swinging dicks” in a dissent from denial of en banc review by Judge VanDyke. Allow me to hijack my own post for a while to address that opinion.
In my post’s title, “nuts” refers to the final part of the meal in the old saying. It doesn’t refer to testicles. No crude pun is intended. I’m happy to use frank language where it aids in communication and clears away bullshit (e.g., “dearly departed,” in an otherwise disparaging reference to a dead colleague, and “respectfully dissent,” in a dissent devoid of respect; both instances of bullshit appear in Judge VanDyke’s dissent). I welcome blunt and specific prose that provides clarity in place of fatuous bumper-sticker generalizations–such as the Twitteresque use of tired slogans like “woke regulators,” “woke judges,” and (following an extraneous comma) “woke ‘rights'” in the same dissent. But a cheap pun on “nuts?” Hardly.
It’s not so much that such a pun indicates an immature mind or the lack of a grown-up supervisor, although obviously it does. It’s more that I’m writing for the general public, albeit not in an ostensibly dignified official capacity. (If I were, it would be even more obvious that I ought not write in that fashion.) Also, to quote Judge Owens in his brief but apt rebuke in the same case, I am “better than this.” It’s not a high bar.
If I have occasion to discuss testicles, or penises, and think it important to be understood, I’ll use those words directly and omit crude juvenilia–unless, perhaps, I’m addressing myself to a teenage boy or chief executive. Any writer who thinks it’s impossible to write frankly and clearly for a non-presidential audience without engaging in crude sophomorics, and that any objection to this must be the product of “Victorian sensibilities,” needs another line of work. Incidentally, the historian Gertrude Himmelfarb spent a career defending the Victorian era and its mores from modern criticisms. Her work was celebrated in conservative intellectual circles. But then, VanDyke is no intellectual, and his trolling here is not written for actual conservatives. It’s an attempt to appeal to an anti-conservative movement that celebrates its own moral degradation and, like the current regime, thinks all communication should operate at the vulgar level of social media discourse.
Any argument that VanDyke was “telling it like it is,” or that disapproval of his dissent is a form of hypocritical blindness to the underlying dispute, or that his effort to shock and troll was a necessary element of “truth-telling,” or other such nonsense is frankly stupid. It’s stupid in the same way that categorical dismissals of civility and formality in writing are stupid. Even this accusation illustrates the point. “Stupid” is clear and blunt; writing that such arguments “are, I fear, misguided,” would be polite but obscure. But if I called them “retarded,” or added a crude pun or personal insult, that would merely add offense, not clarity and not “truth.”
VanDyke is, of course, fully aware that it is possible to express his view of the stakes without being deliberately crude or offensive, and he was aware of it even before Judge Lee’s dissent did just that. His Federalist Society bio states that he’s married with children. Would he treat it as a valuable act of “clarity” or “truth-telling” if FedSoc, to better establish that he’s a family man, added a description of the act of coitus–in accurate, enthusiastic, and crude detail? If it defended itself by saying it was just telling it like it is, would anyone take that seriously? Of course not. VanDyke didn’t lower himself because it was needed to call attention to a point. He did it to call attention to himself, perhaps for reasons of ambition; or because it was fun; or, maybe, because he just can’t help lowering himself. It’s hardly surprising that every one of his colleagues either condemned or disregarded him.
***
With that out of the way: This is a slightly belated post to commend a recent piece posted to SSRN. Happily, that delay allows me to be late to the party in commending two pieces posted to SSRN, which may profitably be read together. One deals with the opening sections of law review articles. The other critiques a standard closing section of law review articles.
With skill, economy, and a pleasant discursive tone, Samuel Bray’s Beginning a Law Review Article gives good advice on “what makes a good title, abstract, author note, table of contents, and introduction” to a law review article. “Good” is its lodestar, not “conventional” or “enticing to law review editors.”
In that sense, it is quietly normative and reformist. And so it should be. Articles editors, their gatekeeper status notwithstanding, are not the ultimate audience for law review articles, and those articles should not be written as if they are. Law professors, like other academics, are fond of invoking the importance of having freedom to research and write for non-mercenary purposes. They should not then proceed to write in a mercenary fashion. They should write sub specie aeternitatis, not sub specie Februarii. Tenured law professors like Bray do right to encourage this. Conversely, they do wrong when they advise or encourage junior colleagues to adopt a cunning or whorish frame of mind as writers–or when they adopt this approach themselves. That’s not prudence; it’s prison.
Bray’s advice is simple and sound. Don’t let the title dictate the content. Minimize the length of abstracts: the abstract is a summary note, not a three-page substitute (not least for professors) for reading the article itself. In the opening as in the rest of the article, avoid having “too much wind-up and not enough pitch.” Show rather than tell with respect to novelty. Moving beyond the scope of the title, he advises: Don’t let your background research and literature review swallow your piece. All good. I disagree with his counsel to “cultivate an absolute abhorrence” of tweedy Olympian titles, at least so long as the title still conveys the article’s topic; the modern academy could use more tweed. And I think he undersells the value, and sometimes the novelty, of taxonomical pieces. Those pieces are different from pieces that merely label or, more often, relabel something, generally to no meaningful end other than marketing. Those are common and he’s right to dismiss them. But there will always be disagreement on such matters.
Jocelyn Simonson and K. Sabeel Rahman, coincidentally, recently offered their thoughts on the later portions of law review articles. In The Part IV Problem in Legal Scholarship, they write critically about the habit of providing a final section (save for the vestigial conclusion): a “Part IV” that offers a proposed “fix” or “ending prescription.” It’s a nice bookend to Bray’s piece.
I’m sympathetic to Simonson and Rahman’s general criticism, although I’m ultimately closer to concurrence in the judgment only. I agree that one problem with the expectation that articles include a Part IV is the expectation itself, which either constrains the form or results in a Part IV that bears little relation to the rest of the article and its actual contributions. I agree with the related point that the “fix” section is often mismatched with the rest of the article, because it focuses on “feasible solutions that do not meet the scale or distinctiveness of the problems” the article outlines. The result is often ridiculous. And I agree, perhaps pace Bray, that authors should be more willing to omit such a section altogether and assert that the real “takeaway” of the paper lies in their elaboration of the issue, not a tacked-on fix.
I’m less sure about its overall spirit, which seems, to use the jargon of the day, to be animated by the concern that Part IV sections offer too many reformist prescriptions, too many “tweaks,” and not enough non-reformist reforms. As the old line goes, “You say that like it’s a bad thing.” Lawyers are good at tweaking! They’re not so good at “respond[ing] to…complex and structural phenomena,” or “deeper critiques of power, political economy, ideology and the like,” or “imagin[ing] alternative futures” or “remaking our world.” Why would they be? The authors acknowledge this, noting that sometimes “[the] legal scholar who describes or analyzes a problem is not going to be the source of the best solution.” And they acknowledge, albeit with a certain lack of enthusiasm, that some articles are well-fitted for a “conventional approach to prescriptions.” But they’re clearly on the side of imagination here.
It seems to me that quite often, a mismatch between an article’s ostensibly capacious and “imaginative” bulk and its narrow, technical prescriptions reveals an article that would be stronger if it were less “imaginative.” In some cases, it’s the narrow fix that’s smart and skillful, while the grandiose stuff is just mediocre, or a clumsy application of someone else’s jargon or discipline. Perhaps many of these articles would be better if the authors shed the scope, “everything’s systemic” talk, and panoramic “vision” of the first sections, along with much of their now-pointless length, and confined themselves to proposing small fixes for small problems. Maybe the mismatch shows that more legal scholars need to give up their pretenses of being visionary or of reimagining whole “structures,” and acknowledge that they do their best work as technicians. Conversely, maybe some authors, finding a mismatch in their article between a genuinely imaginative beginning and a weak Part IV, might conclude that their work actually does show real vision, but that it (or the author) belongs in another forum, or discipline.
Nor am I convinced by the authors’ claim that “[t]he Part IV problem is more pronounced than ever in our current moment,” which calls for broader and more capacious “reimaginings.” Perhaps it does–although, again, some of those reimaginings are bound to be mediocre and some of the more excellent work of that kind may really belong elsewhere. I have no quarrel with the claim about the importance of the current moment. But it’s possible that it calls for more fixers and technicians than it does ostensibly revolutionary rethinkers. When all your boats are sinking, it’s important to redesign them, and a lot of people will probably want to see themselves as brilliant boat designers. The pay’s better, for one thing. But you can probably give that task to just a few people. It might not even be a design problem in the first place! Meanwhile, you still urgently need a hell of a lot of people to bail water.
Disagreements aside, it’s a fun article and, as I said, even more fun as a bookend with Bray’s paper, which admittedly is very different in nature. One hopes we’ll see future articles dealing with Parts II and III and with conclusions.