Archive | Legal Scholarship

Writing Well Matters, Even in Academia

A while back, a prominent law review asked me to review a book on a topic of interest to me.  I readily agreed, on condition that the review be relatively short.  When it came time to sit down and read the book, however, I found it extremely difficult to understand; the book was loaded with unnecessary jargon, long, run-on sentences, and big, obscure words where short, simple ones would do fine.  I found myself sometimes reading a sentence five times to try to figure out what the author was trying to say.

After several hours of this, I gave up.  I sent an email to the law review editors to the effect that while I was loath to go back on my commitment to review the book, I’d rather be boiled in hot oil than spend my time giving this book the attention it needed to be ready to start writing a review.

I won’t claim to be the best writer in the world, but I do try hard to make all of my academic writing readable, even by non-academics.  I’m not sure that this is always a career benefit–some student law review editors, the basic scholarly gatekeepers of our profession, likely confuse turgid, elliptical, and jargon-filled prose with erudition.  But, as my anecdote hopefully shows, going the opposite route also has its costs.

UPDATE: All this bring to mind the following from Gilbert and Sullivan’s Patience:

If you’re anxious for to shine, in the high aesthetic line as a man of culture rare,

You must get up all the germs of the transcendental terms, and plant them everywhere.

You must lie upon the daisies and discourse in novel phrases of your complicated state of mind,

The meaning doesn’t matter if it’s only idle chatter of a transcendental kind.

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The Rise of the Uncorporation

Congratulations to Larry Ribstein on his new book from OUP, The Rise of the Uncorporation.  I somehow got a comp copy in the mail, just finished reading it, and it is terrific.  A gracefully written essay on business law!(!!)  It manages to meld together law, history of business and legal forms in business, law and economics, and sociology into an exceptionally readable short book.  The discussion of the rise of the LLC is fascinating – I thought I knew all about it, as someone who teaches private equity and business associations, but boy, was I wrong.  The frame of social history in business form is a real contribution to a field that is oddly neglected by legal academics, the political and social theory of the corporation and the business assocation.

(My only complaint is that at $70 list, and $50 on Amazon, it is still a little pricey at least if, like me, you would want it for students and courses, like my private equity course, where it would be a fantastically useful and readable supplement.  I think OUP has missed on market pricing here.  I would love to require it as a secondary text in my private equity course, but at that price, I don’t think I can justify it.  Maybe when it’s out in paperback?  Or Kindle?) [...]

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Kevin Jon Heller on Carl Schmitt and Nuremberg

Over at Opinio Juris, my co-blogger Kevin Jon Heller has a post on the German political theorist Carl Schmitt and the history behind his brush with a Nuremberg prosecution at the end of the Second World War.  It is drawn from research for Kevin’s book on the Nuremberg trials; given the interest that law professors and others have taken in Schmitt’s work over the years, I thought the VC audience would find it interesting.  Kevin has done very interesting research into this whole episode at Nuremberg:

I am particularly fascinated by how close Carl Schmitt, the political theorist who has influenced both the right and the left, came to being a defendant in one of the trials.  After Schmitt joined the Nazi Party in 1933, he had been appointed the head of the Union of National-Socialist Jurists and had written a number of pro-Nazi and anti-Semitic articles for the self-published German Jurists’ Newspaper.  Schmitt had a falling-out with the SS in 1937 and resigned his position as Reich Professional Group Leader, although he was able to keep his professorship at the University of Berlin because Goering protected him.

As I detail in the book, the OCC submitted three different trial programs to the US’s Occupational Military Government (OMGUS): on 14 March 1947, 20 May 1947, and 4 September 1947.  Schmittt was listed in the first program as a possible defendant in what the OCC called the “Propaganda and Education case.”  …  At some point between 14 March and 20 May, when the OCC submitted its second trial program, Taylor’s staff decided not to prosecute Schmitt.  The second trial program no longer includes Schmitt as a possible defendant.

Kevin cites to an article in the social/critical theory journal Telos, of which I was long an editorial associate, along [...]

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Tamanaha, “Beyond the Formalist-Realist Divide”

I recently finished Brian Tamanaha’s new book, Beyond the Formalist-Realist Divide: The Role of Politics in Judging. I thought it was excellent: well-written, provocative, and engaging. If you’re interested in jurisprudence, this book is a must-read.

The gist of the argument is that the common story about the legal realists and the legal formalists is just bunk. For those not familiar with this area, the common story is that until the 20th Century, lots of lawyers and legal theorists were legal formalists who naively thought law was entirely mechanical. Then, in the 20th century, the legal realists came around and revealed for the first time that law was human and often indeterminate. Tamanaha shows that the realists’ claims about what the formalists thought were totally wrong, and that there wasn’t any real difference between how so-called realists and so-called formalists thought about the law. Rather, he suggests, progressive legal reformers in the 1930s invented the bogeyman of formalism to try to discredit the status quo and facilitate legal reforms of the day.

I particularly liked the book because it takes on a narrow but important point, sticks to that point, and is relentless and unyielding within it. Tamanaha is trying to debunk one specific point, and he doesn’t let himself get distracted by related topics or the need to offer his own general theory. I tend to think that approach has the most impact in legal debates: Following this book, it will be hard to make the usual claims about the realists and the formalists without dealing with Tamanaha’s counterstory. [...]

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Copenhagen as UN Politics, Not Climate Change Substance

(Updated below …  Give me global oligopoly or give me climate death!)


Post-Copenhagen.  At bottom, the question is legitimacy.  The global New Class met in Copenhagen, convinced, as ever, that it had legitimacy to act as it proposed to act, with the UN as its vehicle, because legitimacy was conferred by “expertise.”  The UN bureaucracy, its permanent culture of functionaries, endorsed the global New Class elites and their claim of legitimacy through expertise, because, after all, the experts were using the UN as the vehicle and thereby conferring upon it governance legitimacy – if you are Ban Ki Moon, what’s not to like about that?  Together, they thought they had found the formula to buy off the poor world through the climate fund.  They also thought they had found a formula that would bring the BRICs on board, by endorsing the Kyoto formula of encouraging industry to move from the rich world to China and India.  Obama and the Democrats would deliver the United States.

In the event, it turned out that the BRICS and the developing world decided to exercise their particular forms of legitimacy – the legitimacy of the sovereign equality of member states at the UN – in order to demand more for relaxing their “hold-up.”  Global New Class legitimacy at the UN encountered  that other form of global governance legitimacy, that of the mass of member states.  Whose legitimacy matters and for what?  And what does it mean to say that a climate change deal requires, in Secretary General Ban’s words, an “equitable global governance structure” to administer it – especially given the many, many, many, many, many, many, many, many things that are apparently to fall under its tent, from global free trade to ice water in our glasses?  What is [...]

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Rethinking Blogging-as-Scholarship

Back in 2005 and 2006, a lot of law-professor bloggers wondered whether blog posts could and would serve as ways to advance scholarly ideas about law. At the time, I was very skeptical:

Can blogs help advance legal scholarship? I think the answer is that they can, but that the format isn’t well-suited for the job. The key problem is the tyranny of RCO, reverse chronological order. RCO means that blog visitors see the most recently posted material at the top of the page. A visitor may see one or two posts on the screen, but needs to scroll down to see earlier posts. This isn’t the only way to visit a blog. Readers can follow direct links to earlier materials, and can search through archives (or query search engines) for particular materials. But this is relatively rare. For the most part, blogs direct readers to the most recent post first.

RCO helps ensure that the difference between blog posts and law review articles is something like the difference between short term and long term memory. Blog posts tend to be about what happened today, yesterday, maybe last week. They are quick reactions to current events and current issues, and for the most part are forgotten a few days after they have been posted. In a sense, blog posts end up as an online equivalent to faculty lounge conversation: They tend to be quick thoughts, comments, and perspective that offer an interesting tidbit about a broader question. Posts might plan the seed of a future article, or stimulate readers to think of old questions in new ways. But the time horizon is short. Blog posts may support and influence traditional scholarship, just as short term memory can work its way into long term memory. But the two are usually

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McDonald amicus: Don’t trust Fairman and Berger

Erik S. Jaffe has written a very interesting brief for the CalGuns Foundation. In short, the argument is: “Charles Fairman’s and Raoul Berger’s Work on Fourteenth Amendment Incorporation of the Bill of Rights Is Deeply Flawed, Inaccurate, and Should Not Be Relied Upon by this Court.”

To make a long story short, during the latter half of the 20th century, Fairman and Berger were the pre-eminent legal scholars opposed to incorporation of the Bill of Rights. Fairman was a close ally of Justice Felix Frankfurter. In the 1949 case Adamson v. California, Justice Black (with support from two other Justices) wrote an dissent arguing for total incorporation of the Bill of Rights; the dissent included a lengthy appendix with selections from the congressional ratification debates on the Amendment.

Fairman and Berger both looked at original-period sources, and argued for merely selective incorporation (Fairman) or no incorporation (Berger). Their views were later challenged by, inter alia, Michael Kent Curtis, Richard Aynes, and Akhil Amar. The Curtis v. Berger pro/con articles in the law reviews are some of the harshest exchanges I’ve ever read between two legal scholars. The brief’s Table of Authorities provides a list of key law review articles, if you want to study the history of the debate.

The brief’s main argument, which I find persuasive, is that Fairman and Berger really did grossly misread Jonathan Bingham and the early history of the Fourteenth Amendment. Accordingly, the Court in McDonald v. Chicago should not be guided by their views.

And for those VC readers who have been playing Aldridge’s Bingham for the last seven hours, you better tap another keg. [...]

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Reading While Traveling, Hard Copy and No Internet

I’ve been traveling recently, and so have been away from posting.  One of the enforced virtues of traveling – one of the few virtues of traveling for me these days – is the plane flight with no internet.  And if the big guy in front of me reclines his seat, as he always does, I can’t even get to my computer.  So I read  on flights.  I should have some reading gadget, Kindle or whatever, but I’m not that far along yet, and for that matter I should get an economy class friendly little word-processor to use on flights, but I’m cheap.  Here’s a selection across the varied reading on my flights.  No particular theme or order, I’m afraid (on account of the mixed-up topics here, I think I won’t open to comments; too jumbled to be productive). [...]

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The Role of the Audience in Legal Writing

In an interesting post on the goals of legal scholarship, Marc DeGirolami writes:

[It] doesn’t particularly matter to me who is or is not interested in my ideas. It probably is true that I hope vaguely that someone, somewhere, now or in the future, will be interested in them. If no one ever thought them at all interesting, I would likely find that regrettable. But I do not write with the purpose to address a particular audience. Even when something I write addresses a particular scholar’s claims, I do not take that scholar, or his epigones, to be my audience. In fact, I usually give no thought at all to whom I am writing “for.”

When I write, I don’t really care who cares, or why they care, or whether someone will care in the future for reasons I cannot guess. I am not writing with the practical aim of influence in mind, or with an ulterior motive, or with the hope that I will make it easier, or harder, for pastry chefs to frost cakes with greater velocity or skill. This is different, I think, than saying that one ought not care if one’s ideas are put to deeply harmful use, or that one ought to be utterly indifferent to the consequences of one’s ideas. Rather, it is to say that one should not have as one’s conscious writing object the excitement of anyone’s cares.

I look at this differently. I think that inherent in legal writing is writing for an audience. Legal writing is a type of argument, and arguments are made with audiences in mind. Of course, that doesn’t mean you know exactly who the audience is, or that you write with a specific reform in mind. And it doesn’t mean that you express an idea you [...]

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