Paul L. Caron
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Monday, September 14, 2015

Sunstein: In Praise Of Law Reviews (And Jargon-Filled, Academic Writing)

Cass Sunstein (Harvard), In Praise of Law Reviews (And Jargon-Filled, Academic Writing), 114 Mich. L. Rev. ___ (2016):

Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”

The Legal Whiteboard:  "In Praise of Law Reviews (And Jargon-Filled, Academic Writing)", by William Henderson (Indiana):

Sunstein has written a remarkably thoughtful and balanced essay that I would encourage any fairminded lawyer, law student, and law professor to read. ...

Sunstein identifies a list of seven recent books by academic authors (by Balkin, Vermeule, Mashaw, Kaplow & Shavell, Revesz & Livermore, Cross, and Adler). All of them can trace their origins to earlier law review articles, all of them are hunting "big game", and most if not all of them are unlikely to be of immediate practical to the busy practitioner or judge.  But Sunstein suggests that we should be taking a longer view. Some of these books were on his shelf when he served in the government. He used them to address real world problems. The rest are scaffolding to reach something higher.

Sunstein organizes the core of his essay around the criticisms of the late Yale law professor Fred Rodell, suggesting that the author of the famous Goodbye to Law Reviews got it only half right.  Sure, the style and length of law review articles limit their readership, but Sunstein observes some countervailing benefits:

When they are working well, law reviews strongly discourage arguments that are glib, sloppy, circular, or narrowly ideological. They also require both development of and sympathetic engagement with competing points of view, rather than easy or rapid dismissals. Counterarguments are strongly encouraged, even mandatory. There is a kind of internal morality to the genre, one that is (I think) connected with and helps account for some of its rigidity. The morality involves respect for the integrity of the process of argument, which entails respect for a wide range of arguers as well.

As someone who has written numerous law review articles, this description strikes me as entirely accurate. ... Sunstein is clearly right--whether they realize it or not, every capable legal problem-solver is standing on the shoulders of prior academic work.  It is misguided to conclude that future generations won't need new and better ideas vetted through an academic process.

https://taxprof.typepad.com/taxprof_blog/2015/09/sunstein-in-praise-of-law-reviews-and-jargon-filled-academic-writing.html

Legal Education, Scholarship | Permalink

Comments

The emperor is told he has no clothes but refuses to believe it.

Posted by: Actual Lawyer | Sep 15, 2015 6:59:06 AM