Do Law Review Articles Have to Be Boring?:
Dan Solove takes a look. An excerpt:
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.
Maybe the answer is more lawprof bloggers. Blogging pushes you to write clearly and simply; the format rewards clarity of expression more than traditional law review articles do.
San Diego Larry (mail):
I remember reading an article by an attorney who wrote about an incident in law school. He wrote a position that his professor told him was clear, concise and exactly wrong for the "real world" of litigation. His instructor claimed that an argument had to be complicated and obscure so it would confuse the opposing attorney into believing there was more to the argument than there was. I wonder if that attitude really exists, and if so, whether the example is a cause or result of that attitude.
1.19.2006 3:29pm
S. Redlich (mail) (www):
This post has got me thinking...
I am a 3L and have started a law blog with the intent to solicit contribution from professors.I am leaning towards illuminating the benefits of podcasting rather than textual posts. My theory is that the opportunity for the professor to hear themselves talk will outweigh the appeal of conveying the written word by bringing them a more varied audience, similar to how being a radio talk guest brings an audience of a kind different than that of a law review article. You could say I will be selling them "Awe from additional pupils" rather than "esteem from peers".
1.19.2006 3:29pm
Perhaps what you guys need is more peer review! It think would lead to clearer, more conscise arguments and shorter articles to boot. As I posted in a thread over on Prawfsblawg yesterday, I'm surprised that legal scholars can collectively take their profession seriously with student-reviewed law review articles being the primary form of scholarship. This culture is decidedly different from the technical (read math/science/engineering) academic world that I inhabit.
1.19.2006 4:18pm
Solid State (mail):
Unfortunately, people's belief that faux complexity and obfuscation will reflect a sense of sophistication back on the author is quite correct. While it is certainly not true on a blog, or in a dinner conversation, or even in a serious discussion between friends - in my experience it is quite true in academic and intellectual writing.

Further, the inverse is also true. Simplicity in intellectual and academic writing is often perceived to be a reflection of the author's lack of thoughtfulness. If your reader doesn't have to struggle to understand then there is a perception that the author is simply repeating obvious truths, irregardless of whether the notions expressed had occurred to the reader previously.

Software design has similar problems of consciously enhanced complexity despite the enormous economic importance of writing clear and easily updated/corrected code. In the absence of those economic incentives, the result in academia and intellectual writing in general is not suprising.

Personally, I like books on intellectual topics that are hoping to sell a million copies - at least then the author has some incentive.
1.19.2006 4:34pm
I don't doubt that a few writers are intentional windbags, hoping to dress up a mundane idea as something new and important, but I think a lot of the excess fat in law journal articles is not a product of prose, but structure. Many write with several presumptions about their readers. One is that, while the reader has enough interest in the subject matter to read the article, they may not know of all the background law and views that the author's relatively simple premise rests upon. This requires authors to lard up their articles with pages and pages of how a concept has evolved through decades or more of court decisions and commentary by other professors.

After establishing the background legal history, another section is spent on defining the purported problem that this string of cases and competing views has created (e.g., circuit splits, disincentives to do something desirable, widows and orphans cast off into the snow, etc.). Once the background is established, another problem is that the author presumes that their simple idea will be controversial, so they build in plenty of rebuttals in advance of predicted criticisms, usually resulting gobs of gigantic footnotes. After all, unless you're a relatively famous law professor, nobody will either take the time to formally rebut your positions nor give you the opportunity to reply to those criticisms. When you're finished, you have a typical 75 page journal article with four sections - yet only the last one contains your simple idea. The other pages are lost to I. The Introduction/ Summary/ Road Map of the Article; II. Description of the Legal Background; and III. The Problem Defined. All of this is true even in specialty journals where readers are presumed to have more background.

In defense of this unwieldy and arguably wasteful format, however, I will say that as a practitioner that sometimes consults law review articles, Part II is what I'm looking for. I could give a rat's ass about the brand, spankin' new idea that no sane district court judge would adopt. I'm just looking for the legal development and background for a niche concept involved in my case.
1.19.2006 5:08pm
R. G. Lacsamana (mail):
This reminds me of the old, old rule that the primary purpose of any writing is to communicate ideas, but in ways that they are clear and can be understood. We see that repeatedly in writing books from E.B. White to William Zinnser. This is not to say that our prose ought to be monotonous, but that it be expressed in a manner that no matter how elegantly wrought, the reader should be able to know what it's saying. Hemingway with his simple style and Faulkner with his intricately complex sentences represent opposite ends of the spectrum, but
both were accalaimed as two of the best writers of their generation.

No matter how it is achieved, clarity in writing remains
a writer's best virtue.
1.19.2006 6:27pm
"Do law review articles have to be boring?" As a former law review editor whose task it was to select the articles our journal would print, my answer is an emphatic, "Dear God, NO!"

I had one simple criterion for choosing what I would print: If I could make it through to the end of a manuscript without wanting to throw it in the trash, the author got an offer.

The prize for the most interesting article I reviewed during my tenure goes to Robert M. Lloyd, "Making Contracts Relevant: Thirteen Lessons for the First-Year Contracts Course," 36 Ariz. St. L.J. 267 (2004).
1.19.2006 6:43pm
Yes, more blogging is the answer.
Additionally, student law review editors should presume that authors who blog write less boring articles and should publish blogger-author stuff more often.
And bloggers should be nominated for awards and stuff too.
And they should get an evidentiary privilege.
And they should be held out as examples of pure democracy and given more respect and adulation than they already get from their anonymous sycophants.
And the Senate Judiciary Committee should consult them.

I love your blog, but I wish you guys would let its merits stand on its own a bit more often instead of posting these "behold the power of the blogosphere to change the world" things. Perhaps it's good to be able to distill your thoughts to 1- or 2-paragraph posts. But if that's all your thoughts amount to, write up an op-ed and send it out, or try to be a columnist somewhere, like FindLaw, the Legal Intelligencer,, etc.

If law review articles are "boring" or "padded" to create the illusion of complexity, that's the fault of the editors for accepting them.

If you're a good writer of really short, interesting, accessible articles, the Green Bag is an excellent venue for that sort of thing. If it's insufficient, then push your school to start a competitor publication.

If you're a good writer of really short, interesting accessible articles, and you pad them full of crap to sneak them by student editors, you're a fraud.

Ironically, Dan Solove uses a lot of unnecessary verbiage to make his point in the paragraph that you quote.
1.19.2006 11:38pm
I agree with Cecilius on the articles. Other than the description of the legal background, as a general matter I have found the articles in law reviews get worse and worse every year. And the student notes are absolutely hideous.

In any event, law review writing is most definitely not clear expository writing by any standard.
1.19.2006 11:57pm
One of my high school English teachers explained the problem of modern writing with the following phrase:


There's three things wrong with this sentance, although according to the teacher, it was four. The following words are unnecessary:

HERE: Am I selling the fish somewhere else?
SOLD: Am I giving the fish away?
FRESH: Would I be dumb enough to advertise that I'm selling rotten fish?

According to the teacher, "FISH" was also unnecessary, because you should have been able to smell what I'm selling.

Not sure if this contributes to your discussion, but it IS a nice, humorous look at simplicity in writing.
1.20.2006 8:00am
Not enough has been said here about the fetishization of footnotes by law review authors and editors. We could cut a lot of useless bulk from law review articles just by abolishing the expectation that every article should have at least 100 footnotes.
1.20.2006 3:08pm