Does the World Need More “Traditional Legal Analysis” in Law Review Notes?

obamaxlarge1.jpgPhil Telfeyan, the Harvard Law Review’s Avenger, Moot Court Winner, and milliner’s dream, has a new note out in the HLR: “Never Again Should a People Starve in World of Plenty“.

Paul Horowitz, noting that Telfeyan also wrote a previous heterodox case comment [see update #2 below], says the controversy about odd writings from the HLR is worth “a two-paragraph blog post and not more. And I am not knocking the observation that injustice is bad; heaven forfend.” But David Bernstein, writing on Volokh, seems to disagree. He writes: “If there is any traditional legal analysis in this Note, it’s not obvious (though I admit that I didn’t read the entire thing).” It’s implied that this absence is a bad thing. [Update: Glenn Reynolds jumps on the bandwagon.]

I have read the whole thing (it was a breezy 22 pages). Apart from an embarrassing error on the first page, I can’t say that I agree that David. On page three (@ 1888) Telfeyan talks about Rawls’ theory of justice; later on, he even cites a case (at note 15, Griffin v. Illinois). But in the bigger picture, the argument sounds pretty ordinary to me: legal rules and, in particular, our professional choices as lawyers, should be infused by equality principles. The driving force is Peter Unger’s work about poverty and our responsibility to alleviate it. It wasn’t a particularly revolutionary piece of writing, but what do people really expect from a student note?

More broadly, as the title of this post suggests, I question whether it is desirable that every law student note play the same doctrinal tune. Law reviews used to be more heterogeneous: case comments, advice on incorporating a business, and high-theory mingled together. Only in the last few decades did we arrive at the modern form of blockbuster article of doctrinal theory (or, today, statistically motivated theory) and, at the back of the book, a series of mini-mes: notes, rarely cited, that followed the same conventions and engaged in the same basic project as the academics’ articles. As I’ve suggested before, I think that the modern student note, chock-full of “traditional legal analysis,” is basically a waste of students’ and readers’ time. This is particular true at schools where student editors will almost certainly never become academics – that is, almost everywhere. Instead, reviews should consider significant changes in their current practices – moving toward collaborative treatises, or, perhaps more radically, legal writing that non-lawyers would want to read. (As a bonus, it could lead more folks to read professors’ boring, but traditional, work in the front of the book.) Shucks, maybe law reviews should follow the example of the Green Bag, and re-write the bible from a lawyer’s perspective.

[Update: Someone claiming to be Telfeyan is blogging about the note. Another entrepreneurial idea for law reviews – blogs about student notes!]

[Update #2: I’ve been informed by a reliable source that (1) Telfeyan didn’t write the earlier Phillip Morris case comment; and (2) there is a dispute as to whether he wrote the posts on ATL under the name “Harvard Law Avenger”. More if I hear more.]

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12 Responses

  1. anon says:

    Prof Hoffman: It is NOT true that Phil wrote the case comment you cite. This I know for certain, as I know the author of that comment.

    Also, be careful: it is not altogether clear that Phil is the Harvard Law Avenger.

  2. Really? I was only relaying Lat’s reporting on that point. Care to elaborate? Who/what is the HLR Avenger anyway?

  3. Chris says:

    Lat didn’t say that Telfeyan wrote the Philip Morris case comment, only the Unger note. At least one person on the ATL thread said the case comment was by Alec Karakatsanis, but I don’t know if that’s confirmed.

  4. anon says:

    Professor Hoffman,

    I’ve sent you more information by email.

  5. TJ says:

    Dave, when was the last time a law review like the HLR led with a “blockbuster article of doctrinal theory”? These days, practically the only doctrinal analysis in a law review is in the student notes. So I would disagree that notes are a waste of students and readers’ time. If you are looking for concentrated analysis of a narrow and obscure question (which is most of real-life legal research), you are far more likely to find it in a student note. The Telfeyan note seems much more like a badly written law review article, one that is useless to practitioners.

  6. DB says:

    Actually, more like a badly written philosophy article.

  7. Harvard 2L says:

    I’m a year behind Phil on the Review, and am not on the scene (at least some of the 3Ls are in Cambridge getting ready for graduation next week), but my understanding through the grapevine is that Phil (with some assistance) IS the author of both the ATL posts and the blog, but he’s neither officially confirming or denying it, in case the posts blow up in his face; if they do, someone on his behalf can with “plausible deniability” say it was someone else, and he’s a victim of a prank, etc. To me, that sounds weird, and I question the ethics, but that’s what I hear.

    I have Phil’s blog on a feed, and there was a huge new post an hour or two ago, so it sounds like Phil and whoever’s helping him are putting some effort into it.

  8. Orin Kerr says:

    I’m a year behind Phil on the Review, and am not on the scene (at least some of the 3Ls are in Cambridge getting ready for graduation next week), but my understanding through the grapevine is that Phil (with some assistance) IS the author of both the ATL posts and the blog, but he’s neither officially confirming or denying it, in case the posts blow up in his face; if they do, someone on his behalf can with “plausible deniability” say it was someone else, and he’s a victim of a prank, etc.

    If this is true, perhaps a new slogan is needed: “CYA at Every Moment”

  9. Aaron says:

    You know, I will agree and disagree simultaneously, on this point.

    First, I’m not allergic to something appearing in a law review that is not strictly law, but more philosophical, or whatever.

    Second, regardless, this piece stinks out loud. Its the usual pompous, overwrought bludgeoning everyone with the guilt the author thinks they shoud feel and the smug satisfaction of the author because he believes he is above it all. And the embarrassing mistake at the beginning, failing to recognize that the statue was about the potato famine, not poverty, and the “aristocrat” was actually in rags, is emblematic of the whole piece–smugness combined with cluelessness. It’s not original, not well written, preachy and smug. I couldn’t stand to read more than 3 paragraphs of it.

    He wants to tell us how to live our lives, but you get the feeling that he has never lived in the world himself.

  10. Stuart Buck says:

    You mean there are two HLR editors who write pieces like this?

    When I was there, there was another HLR editor who remarked to me — in a moment of frustration with the politics of the place as well as the endless bloviating at meetings — that when he put HLR on his resume, it was like saying that he went to clown school.

  11. ATL Reader says:

    While I’m not a fan of personal attacks, here are some tidbits from ATL which reveal just how logically consistent Mr. Telfeyan’s Note is. One wonders if his hero might be Eliot Spitzer…

    Post 1

    —————-

    PHIL’S PARENTS “UPSIZE” THEIR HOUSE –KILLING 1,480 BABIES!

    Phil’s thesis is that everyone who spends $200 on something other than a contribution to Unicef, to save a baby’s life, is killing a baby. Honest — read the Note!

    Well, check out his parents’ moral choices. According to publicly available property records, his parents “upsized” their California home, selling the 2,100-square-foot home Phil grew up in for $599,000 in 2006, and buying a 2,900-square-foot home for $895,000 — spending an extra $296,000 on housing (not counting the financing costs) during a period of time in their lives when most people “downsize.” Each $200 they spent on housing instead of the Unicef donation Phil suggests in his Note could have saved a baby — so by Phil’s moral calculus, they killed 1,480 babies in Third World countries by upsizing their house.

    Wonder whether Phil feels guilty when he visits.

    Check out the info yourself:

    OLD HOUSE:

    4971 Francis Way, Carmichael, CA 95608, bought by Edward H. Telfeyan and Jerilyn Paik on 8/29/1999, and sold on 7/14/2006 for $599,000. Info, including picture of house (nice pool!) on Zillow, here:

    http://www.zillow.com/HomeDetail…? zprop=26085014

    NEW HOUSE:

    5521 Clarendon Way, Carmichael, CA 95608, bought Edward H. Telfeyan and Jerilyn Paik on 7/17/2006, for $895,000. Info, including picture of house (nice pool!) on Zillow, here:

    http://www.zillow.com/HomeDetail…? zprop=26097137

    Hey, Phil, according to Zillow your parents’ home costs $219 per square foot — that’s one baby dead for each square foot. Something to think about during your next visit, I guess.

    Abridged Post 2 (the rest was too cruel)

    ——————-

    And, I noticed that to buy the house, they took out a loan from Bank of America for $716,000 at 6.62% interest, so that they’re something like $70,000 “under water” on the house and are paying something like $4,000 a month interest on a house that’s worth vastly less than when they bought it.

    1. Assuming your parents read your Note, don’t they now wish they could be spending that $4,000 a month saving babies, rather than pouring it down an interest rat hole?

    Source: http://abovethelaw.com/2008/05/m…#comment- 601918

  12. DA2B says:

    The blog allegedly written by Telfeyan is now open only to people “invited” to view it.