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Monday, April 02, 2012

The Determinants of Legal Theory Blog April's Fool Parodies

Now that it's April 2nd, can we talk seriously about April 1st??

Aside from the days he posts abstracts of my own pieces, April 1st is my favorite day to read Larry Solum's?Legal Theory Blog, because it's the day he posts parody descriptions of articles by famous (always famous) legal scholars. This year's entries, with parodies of articles by Andy Koppelman, Robert Cooter and Neil Seigel, Dan Kahan, and others, were just as strong as Larry's parodies have been in the past--as David Kopel can ruefully admit. (Here's?a link to last year's entries.) What do these parodies mean, about the scholars Larry parodies or about legal scholarship itself? I should say that I enjoy the jokes for their own sake. I'm not trying to kill these jokes by analyzing them to death. But they do offer food for thought just the same.?

The comments on the parodies at the VC were especially interesting by way of some of the reactions, even (or especially) from those who realized eventually that a parody was involved. (It's clear, by the way, that Randy Barnett knew it from the start.) Many commenters there, focusing on the Andy Koppelman parody, treated the parody as evidence that Andy's scholarship is bad; after all, if the parody works so well, it must reveal the emperor's clothes! Others, not surprisingly, took it as evidence that liberal-leaning legal scholarship is bad. Surely some out there must have drawn a further conclusion:

that the parodies work because legal scholarship in general is so easily ridiculed.

One way to sort through these options is to ask what legal scholars say legal scholarship itself should be. An oft-cited set of criteria can be found in Stephen Carter's article Academic Tenure and "White Male" Standards: Some Lessons From the Patent Law, 100 Yale L.J. 2065 (1991). There, Carter opines that the "proper standard for academic tenure in the law schools" with respect to scholarship can take some guidance from patentability standards. In Eugene Volokh's later description, which is indebted to Carter, legal scholarship should "make (1) a claim that is (2)?novel, (3)?nonobvious, and (4) useful.?It should also (5) be?seen by the reader?to be?novel,nonobvious, and useful."

Those are reasonable standards--although, as I note below, they are all too easily perverted in the legal academic field. I can say readily that Larry's targets almost always meet and exceed that standard. For just that reason, though, they can't say enough about why Larry chooses the targets he does. So what else determines Larry's choices? Since I don't want to ask Larry--do we bother to ask cows how some of them manage to produce chocolate milk?--I will draw some conclusions from his choices themselves.

Obviously, based on his picks, the target must be famous, at least in legal academic circles. That standard, I'm sure, relates more to humor than anything else. Decent humor cuts close to the bone, on the one hand. On the other, there's no point parodying someone if no one will get the joke, and no sport in parodying someone whose work is so bad that it is its own parody.

But we can say more than that. One way to get or stay famous in legal scholarship is to embody the patent-derived standards offered above. But it's generally insufficient, even if it is necessary. (Would that it were clearly, and only, both necessary and sufficient!) We can derive three more rules. First, with respect to fame as a legal scholar, not all the standards offered above have equal standing. The most important criteria, easily stripping soundness or usefulness, are novelty and nonobviousness. Second, as Volokh's fifth criterion suggests, the scholarship must be highly visibly novel and nonobvious. Subtlety generally won't do here. Third, to get famous, the scholar must offer consistently highly visible novel and nonobvious work. The scholar must mine the same vein in the same way more than occasionally; changeups in subjects or methods will hurt. If you meet all these criteria, you stand a much better chance of being rewarded by a Legal Theory Blog entry on April 1st.

As I wrote above, at least the basic starting points of novelty, nonobviousness, and usefulness are quite reasonable standards for legal scholarship. On that basis, I think we can easily acquit Andy of the first charge from some commenters above: that his scholarship was capable of easy parody because it is bad. I must say personally that I think that claim is obviously false based on Andy's substantial and superb body of work, from which I've learned a great deal. I say that with full recognition of why some have been bothered by his writing on blogs and Salon about the ACA litigation. Whether those criticisms are on the mark or not, it is obvious that he wasn't selected for parody for his arguments on this occasion alone; he was selected because he is a famous legal scholar, if that term is not oxymoronic, and he is famous because his work easily meets the standards of novelty and nonobviousness. Nor is the second charge--that "liberal" legal scholarship is more easily parodied--true. God knows that some famous "conservative" legal scholars meet the same criteria and are just as easily parodied! If nothing else, some of Larry's choices over the years bear this out too.

The third charge ought to be more troubling to all legal scholars. Even if Larry goes after the high-hanging fruit, are they easily parodied because all legal scholarship is easily parodied! Academics still remember the Sokal hoax. In my local social circles, a good deal of scholarship from a School of Education comes in for nasty humor. Is the law school, or its scholarship, just the Ed School with higher salaries, as I suspect many legal scholars fear or know in their hearts?

I won't answer that question, for obvious reasons. But asking it brings me closer to the point I want to make about the problems with the standards discussed above, and especially the gloss I put on them with respect to not just good legal scholarship, but famous legal scholarship. Parodies, like humor in general, work best when they cut close to the bone--when they're not just silly or fantastic, but achieve their laughs by remaining as true as possible while going one painful step further. Larry's parodies work so well because they are so consistent with the standards for famous legal scholarship, while taking those standards to their breaking point. They work because they focus on just the things that make legal scholarship famous--novelty and nonobviousness, of a highly visible kind, from a scholar who consistently exhibits those standards--and then take them to an absurd place. Moreover, they get their absurdity not by saying things those scholars would never say, but by saying things we kind of suspect they might?say, but saying them all too clearly. The more consistent a famous legal scholar is in his or her message and method, the easier it is to imagine them taking a step further: to a reductio ad absurdam of their method (Posner might write about what deities would maximize!) or their message (famous liberal/conservative scholars really are this close to dressing up all of their own political preferences in fancy words!).

Therein, for me at least, lies the underlying concern raised by Larry's parodies. In my view, much famous legal scholarship really is novel, nonobvious, and often (if incidentally) useful. But the thirst for novelty and nonobviousness can curdle, or plunge over the edge, quickly and with terrible results. And the desire to be highly visibly novel and nonobvious accentuates this danger. That's especially true when 1) law review publication decisions are made by law students and 2) legal scholarship itself rests on such uncertain footing about its own standards and knowledge base. Carter's original article emphasized that novelty and nonobviousness are not enough without fundamental soundness and depth of knowledge about the field. But when the selection criteria--for publication, for recognition by other legal scholars, and in short for fame itself--emphasize novelty and nonobviousness so strongly, and often over soundness and depth of knowledge, much legal scholarship can quickly not just reach, but actively strive to reach, the point at which what was admirable becomes only dimly distinguishable from the parody itself.

My point, I hasten to add, is not fundamentally about the work of Andy or any of the other subjects parodied by Larry. And it's not to suggest that all legal scholarship is self-parody. I simply don't think either is true. But I do think it's worth worrying, plenty, about the ways in which legal scholarship, and the determinants for both publication and fame, have so emphasized visible novelty and nonobviousness that there is a terrible risk of convergence between the most famous and the most easily parodied work. The risk is not so much to people like the folks Larry parodies, whose work is generally sound and knowledgeable; it's that lesser scholars (i.e., most of us), as well as the law students and faculty members whose attention they're seeking, will concentrate on the sizzle to the exclusion of the steak.

That leads to my final point. If Larry's parodies are parodies, it's also noteworthy that what they parody in particular--the SSRN abstracts of new articles, which are themselves often shorter versions of the introductions of those papers or the cover letters that accompany their submission to law reviews--are themselves a sort of parody of the articles they purport to summarize. All of us by now have read--or, if truth be told, written--SSRN abstracts that take more or less reasonable claims of novelty and nonobviousness, remove any caveats or traces of modesty, and then subject them to a blast of Hulk-inducing gamma rays. We have seen some of these abstracts go up to and past the point of parody--and we have seen some of them end up with publication in the most prestigious student-edited law reviews. The arms race to fill abstracts with claims that an argument is "novel," "counterintuitive," "surprising," fills an "astonishing gap in the legal literature," and so on, has long since gone past nuclear to the point of cartoonishness. It's precisely what people--both law review editors and faculty members themselves--think might make them famous that is also making them ripe subjects of parody, whether Larry mentions them on April 1st or not.

I begin to wonder, not whether all legal scholarship is rotten (I still think that's too lazy a conclusion), or whether law review publication methods should change (that subject's already been covered, the methods are changing, and the real problem may be the knowledge base of the legal academy in general), but whether we don't all need to take a break from writing or reading abstracts, introductions, and cover letters. The price of fame is beginning to look way too great. ??

Posted by Paul Horwitz on April 2, 2012 at 08:52 AM in Paul Horwitz | Permalink

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Comments

Terrific post!

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Apr 2, 2012 8:50:40 PM

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