Does Scholarly Writing Have to Be Tedious?

book5a.jpgOver at the new and very engaging blog, LawCulture, Rosa Brooks writes:

As a junior professor, I dutifully churned out law review articles to fill my tenure file. Some of those articles, I think, may even have contained a few good ideas and a few good lines, but all of them suffered, to one degree or another, from the contraints of the genre. Worse yet, I’m fairly sure that practically no one outside my tenure committee and my mother has actually read the damn things (and I have my doubts about my mom). Not that this makes me unusual: the vast majority of law review articles are read by few people, and cited by even fewer. So… what’s it all for?

Now, since I’m devoutly hoping my colleagues won’t actually revoke that tenure vote, I’m awfully tempted to echo Rodell and say goodbye to law reviews. From now on: books, absolutely. Magazine and newspaper articles? Sure. Blogs? We’re trying. Even, perhaps, the occasional law review symposium piece or essay, since those are fairly harmless. But as for those ponderous, still-much-too-long, ludicrously over-footnoted things we call Articles, with that portentously capitalized “A”? No, no, no.

No more going through perfectly good prose and inserting pointless qualifiers and parentheticals; no more searching for vaguely on point articles and cases to fill out footnotes; no more going through the ludicrous and humiliation rituals of submitting pieces to law reviews then playing the expedited review/trading up game.

Over at PrawfsBlawg, Paul Horwitz responds by observing:

There are all kinds of reasons one might prefer a “conversation” with a general audience, or an audience of politicians and opinion-makers, or an audience of non-academic lawyers, or an intellectual but non-academic and generalist audience, and so on. I do get the sense that it is possible for legal academics who opt to write largely or strictly in other fora to drop off the face of the earth as legal academics, but that’s not the same thing as saying that they have actually dropped off the face of the earth; to the contrary, from their perspective they may have entered a newer and larger world. But it is a different world, and the question is, how much enthusiasm do some of these dropouts from the tedious world of academe have for those aspects of the old one?

Ethan Leib at PrawfsBlawg has further thoughts.

The debate thus far raises at least two intertwined issues. First is the issue of whether and to what extent legal scholars should strive to be public intellectuals, and to what degree it is possible to be a public intellectual and a good scholar at the same time. I will save this question for a later post, as it is an important issue worthy of significant attention.

The other issue is whether scholarship — law review articles in particular — must be dense, overly crammed with footnotes, and dull. From what I’ve read in the discussions I quoted above, there’s an assumption that law review articles have a particular nature — a particular format and style. It is certainly true that law review articles have evolved into a certain kind of genre, typified by great verbosity, laborious and obtuse prose, and zillions of footnotes. But need law review articles be that way?

Part of the reason for this state of affairs is that we professors haven’t pushed enough to modify the genre. The law students seem to be the ones dictating the terms — indeed, recently, several top journals instituted a page limit on articles. We professors dutifully try to obey. But perhaps it’s time for us to pipe up. Let’s call for abolishing some of the stupid rules in the Bluebook (for non-lawyers, this is the law review manual of citation) that mandate the litany of unnecessary footnotes. In short, we’re Bluebook takers when we should be Bluebook makers . . . or I should say Bluebook shapers since we’d much rather advise on the creation of the Bluebook than actually write the Bluebook ourselves.

Moreover, we need not write articles densely and obtusely. I view style and clarity as part of the craft of writing law review articles. I try (although certainly don’t always succeed) in writing articles with lively and accessible prose. Law review articles can be more than just a plodding through an issue; we can attempt to craft them more artistically, with attention to language and style. There is no reason why good scholarship cannot be eloquent.

Most ideas can be stated clearly and in an accessible manner. I often find that a lot of academic scholarship, when boiled down to its ideas, is relatively straightforward and simple. Of course, we academics like to dress up our ideas to make them sound more elaborate, complex, and obtuse. But in the end, most ideas are simple. Often, however, our prose doesn’t invite people into our ideas but shuts them out. Perhaps we fear that if our articles didn’t take a lot of effort to plod through they wouldn’t seem as profound. If more people could understand them, then perhaps we’re not sophisticated enough as scholars. If we wrote in a lively and clear manner, then too many people might understand our ideas, and we might risk the perception that our ideas were too obvious and simple. But these fears are mostly wrong, in my view. Big important ideas are often not very complex. They may be subtle and nuanced, but that doesn’t mean that they are complicated or that they must be expressed in a dense and obtuse manner.

So perhaps we shouldn’t just discard the law review article genre, but should seek to change it. The law review article does have some benefits. Law review articles are easy to research for lawyers and legal academics, since they are available on online research databases such as Westlaw and Lexis (something I wish the articles of all fields were available on). Many law professors now put their law review articles on SSRN, making them available for free to people around the world. Despite some obstinate outliers and some obnoxious bargaining that sometimes must take place, most law reviews will give authors copyright in their work — something other print media such as book publishers often do not do. Moreover, law reviews have the practice of allowing authors to order hundreds of reprints to send out to people — many journals in other fields don’t have such a practice. In short, the law review article provides authors with a significant ability to disseminate their scholarship. Now, all we as scholars have to do is produce the kind of work that more people want to read. It is my belief (and hope) that there are many people out there who care about ideas and intellectual discourse and who would read legal scholarship if only we were better at the craft.

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13 Responses

  1. Eric Goldman says:

    Great post, Dan. I’d only add one more thing–when we try to write our aticles only to impress the audience of law review articles editors, solely for the purpose of improving the article’s perceived placement, I think we miss the point of investing the time and energy into writng in the first place. Eric.

  2. Paul Horwitz says:

    I don’t disagree with you, Dan. Although part of my point in my too-lengthy post (and my add-ons in the comment section) on Prawfsblawg is that there are certain conventions, and certain accepted fora, for participation in the conversation among legal academics, I don’t think of the worst aspects of legal writing as being a necessary part of those conventions. Present evidence to the contrary, I think law professors should write clearly and well, and that instead they often write in a needlessly ornate, impersonal, and encrusted style. By all means we should challenge this. Posner, I freely admit, is my favorite legal writer, and a model example. What a pleasure to read someone in law whose sentences contain few commas, few qualifying clauses!

    But these conventions resist challenge, and the sources of resistance are varied. As you’ve noted and as Eric suggests, often we, and our desire to suit what we think law review editors want, are our own worst enemy. The editors, too, often suggest changes that add needless complications to the writing and depersonalize it. And our own colleagues can be another source of pressure, especially to the untenured. I had a colleague comment on a recent draft by saying I used the first person singular too much. As it turns out, the colleague was right: I did, and I cut a number of them out. But the reasoning was more disturbing: it was that 1) law review editors don’t like it and, perhaps more ominously, that 2) avoiding the first person adds more “authority” to the writing. In a broader sense, much of what is wrong with much legal writing is precisely that it uses language to lend a -false- air of authority to what we write — to lend seeming authority and objectivity to writing that is either normative, or tendentious, or tentative, or simply personal. So, as should be unsurprising, we are bound by gossamer chains of convention that come from multiple sources and that often resist change even when everyone agrees that legal writing could be different and better.

  3. Paul’s comment regarding Posner reminded me of a recent article Posner had written on this topic and it is available at the following link:

  4. Do Law Review Articles Have to Be Boring?:

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  6. ohwilleke says:

    Speaking as someone who has been both a professor (although not at a law school) and a practicing lawyer, the audience which this post omits, is the audience for whom law review articles should be written: The practicing bar and the part of the judiciary which is constrained by precedent.

    Scientific journals are, to a great extent, written not just for academic scientists, but also for individuals who are actively doing research work in private industry and government.

    Yet, few law review articles offer anything of practical use to a practicing lawyer, a trial court judge, or a judge in an inferior appellate court that is bound by precedent. They are primarily of interest to U.S. and state supreme court law clerks, to fellow academics, and to legislative staffers, as most ultimately go to policy issues that rarely actually come up in practice. There is nothing wrong with writing articles for this audience, and law schools have to a great extent evolved into policy schools, but it is too narrow.

    This isn’t entirely the fault of the professors. Professors at law schools, by and large, have little practical experience as lawyers and do not currently maintain law practices. There is an institutional bias against hiring attorneys on the strength of their practical experience, as opposed to their publication record that helps to make this so. They teach appellate court opinions and law review articles because that is what they most easily have access to from their own positions. But, those teachers also have only so much that they can offer to their students about the finer aspects of dealing with clients or the less visible parts of legal practice, and obviously can’t write about it either, as it is not part of their experience, at least not to the level of real mastery.

    The expected scope of a law review article is beyond the available time and computerized legal research resources of most practicing attorneys, and their submissions, even when made, tend to bring puzzlement to editorial boards, so practicing lawyers rarely submit articles to law reviews, and information of use to the practicing bar instead ends up being published in less pretentious bar journals, continuing education coursepacks, and specialty practice news letters.

    The formats favored by practicing lawyers (some even write at book length in this style, Colorado has a large multi-author set of treatises in this style) typically feature shorter articles, fewer footnotes, more of a “just the facts” attitude, as opposed to advancing a policy thesis, and a less than exhaustive review of the outstanding authority in all fifty states on an issue. But, they are regularly read and referred to by practicing attorneys, albeit, often without attribution. They are valuable because they inform the reader, not because they provide delightful quotations to hang on one’s wall or place in a brief. Judges in their opinions provide enough of those to go around, and judges appreciate quotations of a fellow judge’s wit more than that of a law professor or practicing attorney.

  7. Mike says:

    Dan wrote: “Does Scholarly Writing Have to Be Tedious?”

    It’s funny that in a post about tedious writing, the title itself is a bit tedious. Couldn’t you have been more economical, entitling your post: “Must Scholarly Writing Be Tedious?” ;^>

  8. Josh says:

    While Bluebooking is tedious (though law review editors have to endure more of the tedium than professors in this regard), what does Bluebooking have to do with tedious writing? What Bluebook rule would, if eliminated, lead to more engaging writing? The Bluebook does not “mandate the litany of unnecessary footnotes” — professors put the footnotes in and law review editors often ask for more of them (oftentimes for good reason (e.g., to expose an author who’s saying something that is clearly unsupportable) and sometimes not). For the most part, the Bluebook only tells you how to format the footnotes. To see how to have law review articles be more useful to more readers and less tedious to read, professors need only look themselves in the mirror!

  9. ohwilleke says:

    Josh’s defense of the Bluebook is well founded. The problem with law review articles is not footnotes with citations. It is “talking footnotes” that contain far more than citations.

    A Bluebook rule simply banishing explanatory text or off topic meanderings from footnotes would do the genre a great service.

  10. sparkyp says:

    I think the Bluebook is partly responsible. It does (or at least the last version I’m familiar with did) require citation at the close of each assertion or quotation. This form will endlessly gum up the printed page and distracts the reader and the writer. And until the iron bands of mindless conformity are broken many junior faculty will persist in maximizing the number of footnotes as a misbegotten shorthand for showing off erudition. Why not have law review articles collect citations and attributions in a single footnote for each page or each paragraph?

    Still, it is true that much legal academic writing is at best difficult to read. I think it’s because the market for academic legal writing doesn’t use the product in the way a judge might use a legal brief. Because the consumers aren’t actually expected to do anything with the product there’s just no penalty for poor writing, or thinking, for that matter. I’m not suggesting that law review articles should be useful in the sense that a treatise is, but I do think the highly stylized form of many articles is a conceptual dead end.

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  13. AGE says:

    If you want it to be cited (by judges) it does have to be tedious (very well researched, thorough, on a specific not-so-exciting topic and well footnoted). On the other hand, we could do without the Latin and other formalities that just discourage the general public and other professions that intersect with the law.