May 11, 2006

A dialogue about a call for a dialogue.

Recently, Yale Law Journal put out an invitation to lawprofs to submit proposals for "[a]rticles engaged in a dialogue on a single compelling legal topic." (PDF.) I didn't do a post promoting this, despite an emailed request from the editors, because I didn't think my readers would find it very interesting. At first glance, I misread it and thought they were looking for articles in dialogue form, like the famous Henry Hart piece, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harvard Law Review 1362 (1953). That would interest me. But what's special about two articles taking opposing positions? Or is it just that Yale is soliciting articles in proposal form? And I can't see my readers getting jazzed up about that.

But I'm bringing it up now because on Prawsblawg, Matt Brodie and Paul Horwitz are writing about it. I should say they are "engaged in a dialogue on" this topic, which may or may not be "compelling." Matt says:
In the traditional law review article-and-response, the article is sent out, read, and then responded to by another academic.... But the original author did not pick her interlocutor; the review did....

If the "debate" comes as a pre-arranged set, I worry that it will be "conflict for show." Like a musty vaudeville act, the combatants will have all their moves choreographed ahead of time. ("Two law professors walk into a talent agent's office . . . .") Having chosen each other, the two sides have to have some degree of agreement. The natural human tendency will be to pick a sparring partner who is good but doesn't level any really dangerous punches. Knowing this, the two sides will be encouraged to amp up the level of combat, at least on the surface, to make it look sufficiently contentious. In the end, the debate will be less like a true match and more like pro-wrestling: it will look really bad but the whole thing will be scripted ahead of time.
Wait. Isn't pro-wrestling entertaining? Shouldn't it be "it will look really good but the whole thing will be scripted ahead of time"? The use of "but" seems to demand a contrast. And no, I'm not trying to start another grammar and usage thread. Yesterday's is up to 56 comments. If I wanted to do that I'd also call attention to "scripted ahead of time."

So, anyway...

Paul says it's an "excellent idea," especially if it were done by lower ranked law journals:
For many legal scholars, who desire above all (well, almost above all) to be read, it might well be worthwhile to forego a more prominent placement in favor of a somewhat less prominent journal that guarantees that one's article will be given the serious treatment of a response (and that offers the original author a reply opportunity). This is also an excellent opportunity for those law reviews to promote the professors at their own school, since these professors would be among the natural candidates for the job of writing the response. I've been pushing this idea on my home institution's journal for a while; sorry to see that Yale, which doesn't need the extra lift, is as brilliant and thoughtful about the law review publication process as I am.
I don't see why the presence of a response, especially from the journal's own school, would stimulate more readership, aside from the close reading the responder himself would give it. And I really don't think a lawprof would go with a lesser law journal to expose himself to a critique.

The charm of the Yale idea really is in picking your partner. It doesn't have to be about getting a really intense critique. It merely needs to be two lawprofs speaking to the same subject from different angles. You should pick someone you want to debate about the issue with as you work on the material over the summer. You engage, you talk, you disagree, you learn from each other. It's really not at all like the problem of scripted wrestling versus a fair fight. It's about dialogue. You have a dialogue with someone who's good to talk with, not a hostile opponent. You don't need two enemies facing off. It's better to have two interlocutors who respect each other and can engage and use each other's ideas to produce something new: a dialectic -- to use Henry Hart's word. And it would be even better if the writing were in Henry Hart's form: a dialogue.


Ann Althouse said...

See? More than 2 hours later, there are no comments. I was right that people are not interested.

reader_iam said...

I figured I'd be talking only to myself. That'd make it a monologue on a dialogue about a call for a dialogue.

Makes one's head spin.

Richard Dolan said...

I don't read law reviews much any more, and don't expect I would read anything that was produced in this format. And I don't know many practicing attorneys who do. Law reviews are basically about professors (or editors) writing for each other. So if this would work given that audience, perhaps it makes sense.

As for the dialogue idea, there are already several blogs that do a pretty good job of that. I have in mind Becker-Posner, even though it is not usually focused on traditional legal issues; and more generally blogs like Volokh. If it's the give-and-take of dialogue that they want (the play's the thing!), then the whole law review apparatus of often small ideas fancied up with endless footnotes, and all set out in dull prose dissecting those ideas to the nth degree, doesn't seem to be a natural setting for it. How much spontaneity can you get in paired law review articles (none would be my guess), and who wants to read a law review article just to get a feel for the process by which two professors work their way through a problem, rather than the answers (and reasons for them) they finally come up with?

I suspect that the dialogue idea works better in a format where sponaneity is part of the point, where the process is itself partly what makes it interesting, and where the pieces are (relatively) short and free of all the heaviness that law review writing/editing implies. In short, blogs or panel discussions (the Federalist Society among others does this all the time, and often get an audience with lots of practicing attorneys); probably not law reviews.

But, as I said at the beginning, I'm not the natural audience for this stuff.

Doug Sundseth said...

"If I wanted to do that I'd also call attention to 'scripted ahead of time.'"

Well, presumably the opposite of "scripted ahead of time" would be "post-scripted".

Not that you wanted to talk about that.


dick said...

This sounds like the blog that Judge Posner and some other lawyer set up a few months ago. They would take a subject and the do a form of call and response on it with each writing an opinion and then next responding to the other's opnion. Almost like a debate competition the way they did it. Each week had a different subject and they would spend the week going back and forth on it.

Goesh said...

I'm in this for your sketches.

Ricardo said...

"See? More than 2 hours later, there are no comments. I was right that people are not interested."

Well, I don't know. It seems to me that ultimately, it all comes down to the packaging.

In reality, Nero was right. The masses love spectacles, and the best kind of spectacle is some form of gladiatorial combat. In modern times, we call this football, the war against terrorism, preparing for bird flu, courtroom battles, or anything else where it's "us" against "them". The best kind (from an entertainment standpoint) is the mano a mano combat between two equally-talented or skilled combatants. This is why I always thought that George Bush and Saddam Hussein should be given some of those humongous swords that the Vikings used, and allowed to determine the honor of their countries by hacking each other to bits. But I digress.

Sure, why don't we do this in legal education. But wouldn't a so-called "dialogue" be too tame to be interesting. Wouldn't a legalistic "duel" to more to people's liking? If you want to learn from each other, then a dialogue is fine. But if you want to stimulate the masses, really get the juices flowing, then a "duel" is much more to the liking of the populace. So maybe we need a little more clarity as to the purpose of this venture.

By the way ... I studied economics in college (among other things) and had to read endless journal article dialogues between distinguished economists. Seeing even two brilliant minds quibble over miniscule details is boring. Give them some swords!

SippicanCottage said...
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reader_iam said...

Sip: Makes me think more of "Stonehenge": You know, it's supposed to be some huge and "important" production that turns out to be just a bunch of "little people" dancing around a hunk of papier mache.

And which one of the guys gets to be the one with the amp that goes up to 11?

SippicanCottage said...
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Maxine Weiss said...

Well, for heaven's sake, whatever you do, don't pick Gloria Allred as your opponent.

You'll lose.

Peace, Maxine