Spam jurisprudence, air law, and the rank anxiety Of nothing happening (a report on the state of the art)

Georgetown Law Journal

Volumn 97, Issue 3, 2009, Pages 803-836

  Schlag, Pierre ^a  

^a UNIVERSITY OF COLORADO   (United States)

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EID: 64949103621     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (80)

1. The movie was actually released in 1966.
2. It's really not responsible to say this as a tenured faculty member. I mean here are these young professors on your faculty, looking to you for help and what is that you come up with? "You guys really missed it?" You cannot say that. It's unacceptable. Utterly and totally unacceptable.
3. Association of American Law Schools, Statistical Report on Law Faculty 2007-2008, at 24 (reporting 7,671 tenured and tenure-track law faculty).
4. Which leads me to wonder: just where are all the punk law professors? Just what happened to that generation? And where's gen X and the slackers? I want to know. The quick answer is that they were selected out or self-selected out. No doubt true - but that doesn't explain very much does it?
5. Excuse me, hello, but could I possibly get some cites here, maybe?
6. Apparently, this sort of thing has happened before. Kerre Schlag, Normative and Nowhere To Go, 43 STAN. L. REV. 167 (1990).
7. Several times apparently: Kerre Schlag, Law and Phrenology, 110 HARV. L. REV. 877 (1997).
8. I have spoken with the author. This is what he says and I quote: "The manifest sense among law professors that law is somehow responsive to serious intellectual argument is facilitated by the conventional representation of law as a field of ideas, propositions, theories and the like. It's as if cls never happened. Hell, it's as if Holmes and Llewellyn never happened."
9. Could we have some cites, please? Really. I would like to cite to Duncan Kennedy here. Oh to hell with it. Here goes: Duncan Kennedy, A Semiotics of Critique, 22 CARDOZO L. REV. 1147 (2001).
10. My relations with the author are becoming somewhat strained. See notes 2-7, supra. I feel that he is not expressing himself as well as he could. I also think that some of his views are simply untenable. I do not think we are compatible.
11. And by "experimentation" the author actually means "deviance." And sure there are sanctions for deviance. You draw ire. You get called names. Hell, the author himself has been called paranoid and irrational. The author points out that this is nothing. He says he's also been called sophomoric, nihilistic, jejune, a deconstructionist, a critical legal studies scholar, a son of cls, a postmodernist, a legal realist, a romantic, a rationalist, a hyper-rationalist, a disappointed rationalist, a poststructuralist, a comic, a satirist, an enfant terrible, an iconoclast, and more. He points out that none of these things is really true - that he's just a regular guy. Says he used to drive a pick-up. Cuts his own firewood. Virtually a pragmatist.
12. See generally CLARE MESSUD, THE EMPEROR'S CHILDREN (2006).
13. Aura? AURA? What's aura? And since when do we allow "aura" in a law review article?
14. This idea is from Sarah Krakoff.
15. Yeah, sure, except for what he just wrote two paragraphs back.
16. Yeah right like he has one. Give me a break. This is what he says: "Very broadly speaking, I would say legal scholarship entails two kinds of enterprises. First would be those enterprises aimed at a kind of non-trivial retrieval of beliefs, practices, information pertinent to law. Second would be those creative enterprises aimed at rethinking the way we think or do law." I asked the author, "But what about the normal definition of scholarship?" I quoted: "Scholarship is the pursuit of academic research, whether in the arts and humanities or sciences, and in all such fields means deep mastery of a subject, often through study at institutions of higher education." I pointed out that I obtained this definition from an unimpeachable authority on the normal - to wit: http://en.wikipedia:org/wiki/ Scholarship (visited Jan. 1, 2007). He pointed out that this definition had been edited out of existence.
17. See id. (last visited Dec. 30, 2008). I pointed out that the same definition could be found at http://www.nationmaster.com/encyclopedia/ scholarship (last visited Dec. 30, 2008). This is what he said back: Deep mastery of a subject is not itself scholarship. "Deep mastery of a subject," when it's in written form, is what we usually call a dissertation. Many academics never get over the experience. Having done very well on their dissertations, they take it as a model of scholarship and end up writing dissertations all their lives. Mercifully, these are usually called by a different name - university press monographs. The big difference between a dissertation and a monograph is that the latter have real cool covers and frequently get reviewed. So far "dissertation disease" has been mostly a problem in other parts of the university (not the law school). But dissertation disease is beginning to make its appearance in the law school as we become more interdisciplinary. As for your wikipedia definition of scholarship, that's simply a manifestation of the triumph of the experts. It's the triumph of expertise as the dominant model of knowledge and of knowledge as the dominant mode of thinking about world and law.
18. Right, and no one's ever provided a good justification for using a fork either, but you don't find the author railing on about that now, do you?
19. This is what he wants me to say here: There are, of course, commentators like Judge Harry T. Edwards who celebrate the kind of default legal scholarship I'm talking about here on the grounds that this sort of scholarship is ostensibly helpful to the courts (presumably, appellate courts).
20. See generally Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992). That, of course, is a truly stellar argument if one is convinced that helping out appellate courts - could we call this free-lancing for the state? - is a really worthwhile thing to do. (Working the law. Working the law.)
21. The author asked me to cite to Senator Hruskra's famous observations on the need for mediocrity on the Court - those were my instructions. Hruska is the Senator from Nebraska who, in the face of claims that Carswell, Nixon's nominee to the Supreme Court, was a bit dim noted, "Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance?" I will oblige the author and provide the cite. No, on second thought, I won't. I asked the author, "Do you think that mediocrity deserves representation on the Court?" He said ⋯ no I can't quote him ⋯ but it was something like: "not a real problem." Unbelievable! (I'm trying to enlist the help of the editors. So far - no luck. More as it happens.)
22. Of course, even the author would have to recognize that designers of the Yellow Pages must, at some point, try to emulate the internal perspective of the user. I have a point here, don't I? A pretty good one I'd say.
23. See H.L.A. HART, THE CONCEPT OF LAW 86-88 (1961).
24. Can you believe the sort of nonsense this guy makes me write? The guy tells me that - yes, "excellence in mediocrity" is a kind of oxymoron. But men he has the temerity to say that social and intellectual practices can be organized in the form of oxymorons. Well, that's just great. Kind of blows rigor right out of the water, doesn't it? He said, "Sure law can work itself pure. It can also work itself into a mess." Unbelievable.
25. ⋯ which would be a reference to Bakersfield, California (where there is no AALS accredited law school as of yet and not much excellence to speak of).
26. ⋯ which is not to say, I should remind the author, that one cannot try and even succeed in modifying the shape of the curve or getting one's own curve to look better than the next law school's curve. I've said this. He ignores me.
27. "What about cultural studies - that's not exactly Mozart or Kant, is it?" This is what he said: "Cultural studies does focus on popular objects or marginal subjects, but it does so within the terms set by high theory. You can be sure that a university press book on Crest White Strips will not be just about Crest White Strips. In fact, it may not be about Crest White Strips at all (which, of course, brings forth its own set of problems)."
28. I have tried really hard to help the author out here: I've tried to think of enterprises that strive for performance at the lower part of the curve. These would be enterprises devoted to a kind of slumming. The most obvious candidate is the fashion industry, which occasionally promotes downscale clothing. Even there, however, it bears noting that when the fashion industry slums, it will nonetheless strive for the higher end of the low part of its curve. Moreover, it will invariably price its slum-lines at the high end of the industry pricing curve. Indeed, high-quality slumming almost always commands (and requires by way of certification) a high price. If you do not pay a high price, well, then it's not authentic slumming, but something else akin to fake slumming. Fake slumming, of course, would be a double negative. Or possibly a super-negative. It is all so very confusing. It's just very hard to be inauthentic these days, no matter how hard you try.
29. I have to point out that the B+ is a result of grade inflation.
30. See Richard Posner, Judge, 7th Circuit U.S. Court of Appeals, Remarks at Association of American Law Schools Conference (Jan. 5, 1991), reprinted in Myers, At Conference, Posner Lambasts Academics for Weak Scholarship, NAT'L L.J., Jan. 21, 1991, at 4.
31. According to the author, jurisprudence celebrates this mimesis under the banner of "the internal perspective."
32. See generally Ed Rubin, The Practice and Discourse of Legal Scholarship, 86 MICH. L. REV. 1835 (1988) (describing and criticizing "the unity of discourse" among legal academics and judges).
33. JAMES BOYD WHITE, THE LEGAL IMAGINATION: STUDIES IN THE NATURE OF LEGAL THOUGHT AND EXPRESSION (1973). I don't really know why this cite is here, but I was pretty sure no one would really notice. Also from now on, I'm going to write whatever I want. Also I've decided to call myself "Daniel."
34. Here's a poem I've been working on: Mist-filled gardens across the sky. Jurisprudence in my teeth Where does New York? © by Daniel (Dec. 30, 2008).
35. It's rarely an unmediated process. On the contrary, there are groups such as the bar, the media, and the expert talking heads who serve to translate judicial discourse into a popular understanding. If the author knew anything, he would cite Alexis de Tocqueville. That's certainly what Daniel would do. Here goes (and by the way, the author gets no credit for this): Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men are, or have been, legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habitude to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate. ALEXIS DE TOCQUEVILLE, 1 DEMOCRACY IN AMERICA 357-58 (Henry Reeve trans., 3d ed., Harv. Univ. Press. 1863) (1835).
36. This notion that an opinion must at some point join with the social institutions and social understandings in place is worthy of greater elaboration (indeed, it is worthy of an entire essay in its own right) but this is not the place. See instead, Erika Sontag, Continuity and Disjuncture in Judicial Rhetoric (forthcoming).
37. High Personal Contentment, Low News Interest, Dec. 22, 1997, http://people-press.org/report/99/high-personal-contentment-low-news-interest (citing a 1997 poll conducted by the Pew Research Center).
38. Id.
39. John Hart Ely once gently pointed this out to Ronald Dworkin. Ely suggested that perhaps judges need not "follow the New York Review of Books." JOHN HART ELY, DEMOCRACY AND DISTRUST 58 (1980).
40. Oh well, that's really nice. Attaway guy: they're sure to come around to your side now.
41. Robert M. Cover, The Supreme Court, 1982 Term - Foreword: Nomos and Narrative, 97 HARV. L. REV. 4, 53 (1983).
42. We could cite the tragic case of Supreme Court Justice Whittaker, who had great difficulties reaching decisions, but that would be neither kind nor entirely right, and so we will not do so.
43. The author is fond of lists. I'd like to see him upgrade to the outline form. It would give me something to do. He says I don't understand. (Like that's believable.)
44. This is all a bit coy actually: the fact is that pretty much every discipline in the social sciences and the humanities has also been subjected to devastating critiques. Yet they too go on. Moreover, if one looks at the unexamined pre-suppositions that underwrite any discipline, one will find that those very same pre-suppositions constitute the highly controverted subject matter of some other discipline. It's all a kind of intellectual Ponzi scheme in reverse. So, if you ask me, I don't know what the guy's ragging on about. Also, I've decided to change my name to Bruce Ackerman.
45. Apparendy, "Bruce Ackerman" is already taken. See supra note 41. I'm going back to Daniel.
46. See supra note 30. Also, at this point, I would like to say that I am gay. In fact, I am the first gay footnote to come out in an American law review - ever. In fact, I believe I am the first gay footnote to come out in a law review anywhere. This has never happened before - anywhere.
47. You know, Ludwig Wittgenstein did that for a while. Took an interest in birds, I mean. Yes, it's true, he had a mental breakdown and took up watching and caring for birds. RAY MONK, LUDWIG WITTGENSTEIN: THE DUTY OF GENIUS 526-28 (1990). (This, by the way, is the obligatory reference to Wittgenstein. There will be no others.)
48. Trust me: Five, maybe ten years from now, this guy will have to recant on this.
49. The author wishes to quote from Jack Schlegel here: Langdell's world, the world of rules, was, I suppose, an exciting one in those early years. There was the enormous job of systematically stating the law, a job that was carried out not just in treatises but also in casebooks. But when that job was done, legal academics in Canada (by the late sixties I surmise) and the United States (by World War I) faced a terrible problem. There really wasn't much more to do. The notion at the root of the Langdellian program, that law is a definable and finite body of knowledge, meant that the task with which scholars were left once that body was substantially defined was to monitor the small changes in the law - chronicling, where possible, a new development in eminent domain or a new wrinkle in consideration. Some did (and do) this necessary and time-consuming work patiently and lovingly, but for most the endeavor was less than exciting.
50. John H. Schlegel, Langdell's Legacy or, The Case of the Empty Envelope, 36 STAN. L. REV. 1517, 1529-30 (1984).
51. See Henry M. Hart, The Supreme Court, 1958 Term - Foreword: The Time Chart of the Justices, 73 HARV. L. REV. 84, (1959).
52. "Your needs drive our innovation drives your success." LexisNexis, A Division of Reed-Elsevier Inc. All rights reserved.
53. That's not the way I see it. I don't recall seeing Professor James Boyd White looking at reprints on his desk with "dread and ennui." This is just being pulled out of thin air by the author. He has become, I fear, an "unreliable narrator." From Professor White, I did find this, however: Think for example of the piles of books and journal articles that Utter your office: With what expectations and what feelings do you turn to them? If you are at all like me, you do so with a feeling of guilty dread and with an expectation of frustration. We live in a world of specialized texts and discourses, which all too often seem marked by a kind of thinness, a want of life and force and meaning. How often, for example, do you simply skim-read what is before you, and how often do you feel that nothing is lost? James Boyd White, Intellectual Integration, 82 NW. U. L. REV. 1, 5-6 (1987).
54. Hell no. Footnotes rock. The author is on drugs.
55. I'm going to cite Cass Sunstein here. This is a kind of anticipatory cite - meant to indicate that if Cass Sunstein has not already written on the subject identified, he will very soon.
56. SAMUEL BECKETT, WAITING FOR GODOT (1954) (as modified by the author).
57. Perhaps the students and faculty at Minnesota and North Carolina - you think?
58. We pick up the interview with rock legend Nigel Tufnel pointing out to rock reporter, DiBergi, that Nigel's new amp goes up to eleven. Nigel Tufnel: The numbers all go to eleven. Look, right across the board, eleven, eleven, eleven.⋯ Marty DiBergi: Oh, I see. And most amps go up to ten? Nigel Tufnel: Exactly. Marty DiBergi: Does that mean it's louder? Is it any louder? Nigel Tufnel: Well, it's one louder, isn't it? It's not ten. You see, most blokes, you know, will be playing at ten. You're on ten here, all the way up, all the way up, all the way up, you're on ten on your guitar. Where can you go from there? Where? Marty DiBergi: I don't know. Nigel Tufnel: Nowhere. Exactly. What we do is, if we need that extra push over the cliff, you know what we do? Marty DiBergi: Put it up to eleven. Nigel Tufnel: Eleven. Exactly. One louder. Marty DiBergi: Why don't you just make ten louder, and make ten be the top number and make that a little louder? Nigel Tufnel: [Pause] These go to eleven. THIS IS SPINAL TAP (Spinal Tap Prod. 1984) (rockumentary manqué).
59. OK, and what isn't?
60. The rankings industry has helped immeasurably in this respect.
61. Actually, what I said was: "They will stone you."
62. Plus, as an aside here, there's the small point that obeisance to good judgment, groundedness or reasonableness, is totally unwarranted in our context: This is not a reasonable society. No one with good judgment would run things this way. Nobody with an ounce of groundedness would do the things we do. The invitation to good judgment is basically an invitation to surrender to a less than entirely benign oxymoron: exercise good judgment within an intrinsically unreasonable form of life.
63. Not really.
64. You think?
65. Legal scholarship has virtually no effect on the courts unless, of course the author prescribes what the courts are already doing. No wait⋯ that would still be to no effect. But this does not mean that legal scholarship is without effect. True: its sundry normative recommendations are fairly ineffectual. But what does matter, however, is the mode of thought conveyed and rehearsed in legal scholarship. That truly is important. The ways of thinking become imprinted in the law students. And they will be reproduced when the students become lawyers, judges, politicians.
66. There is, of course, a powerful counter-argument.
67. See generally DAVID HALBERSTAM, THE BEST AND THE BRIGHTEST (1969).
68. HOW can he say that!!! There he goes again - contradicting himself. Unbelievable. This is what he said and I'll have to paraphrase here because, frankly, I'm a whole lot better than he is at making things clear. He says he's trying to train me (get that!)⋯ he's trying to train me to deal with uncertainty in intra-professional conflict He says that's why he brought me into the picture in the first place. Absurd: I am an autonomous footnote.
69. On Grand Canyon river trips, a "swamper" is a cook's helper - and so far as river trips are concerned, it seems to be a term unique to the Grand Canyon. The term was originally derogatory, implying a subaltern status. Of late, efforts have been made by commercial outfits to substitute the term "assistant" for "swamper." Persons such as the author, however, have come to prefer the traditional appellation "swamper" to the more politically correct designation of "assistant." Also, the author's work was only a two-week stint.
70. I ask you - does the author really think these terms are self-defining? "The constant piling on of little local meta-and infra-layers of thought" - what the hell does that mean? He tells me to mention "nesting" and to cite to Piaget. Okay, fine.
71. See JEAN PIAOET, STRUCTURALISM 28-29 (1973) (on nesting). There it is. I even got the pincite. Someday, I'm going to be in a real law review article.
72. I'm certainly glad he mentioned Heidegger. I know it helped me out a lot. And I'm sure the editors are just euphoric.
73. Gosh, really glad I didn't miss that one. See (or not) Symposium, Bush v. Gore, 68 U. CHI. L. REV. 613 (2001) (yet another installment of "the thrilling tradition of Anglo-American law" as it "works itself pure"). The first quote is a reference to a statement by Henry Hart. Hart, supra note 46, at 99. The second quote has a somewhat uncertain pedigree. Sometimes the phrase is attributed to "old trope." The quote has also been attributed to cases such as, say, Omychund v. Barker, 26 E.R.15, 33 (1744).
74. See Bruce Chapman, The Rational and the Reasonable: Social Choice Theory and Adjudication, 61 U. CHI. L. REV. 41, 107 n. 136 (1994).
75. This is a part of Jack Balkin's current oeuvre. So far we have JACK BALKIN, WHAT ROE v. WADE SHOULD HAVE SAID: AMERICA'S TOP LEGAL EXPERTS REWRITE AMERICA'S MOST CONTROVERSIAL DECISION (2005), and JACK BALKIN, WHAT BROWN v. BOARD OF EDUCATION SHOULD HAVE SAID: AMERICA'S TOP LEGAL EXPERTS REWRITE AMERICA'S LANDMARK CIVIL RIGHTS DECISION (2001). I definitely see a future here. For instance: How SHOULD THE PEACE OF WESTPHALIA HAVE BEEN DECIDED? And, of course, not to be missed would be: WHO SHOULD HAVE WON THE BATTLE OF HASTINGS?, to be followed by the obvious sequel, WHY 1066? Also, do you like the small cap font above? I live for that.
76. There is no way I'm going to cite people here. That would be career suicide. Not very nice either. I have a future. I, Daniel, wish to be cited. Also, I want you to know that I, Daniel, have been invited to a dinner-party in Cambridge.
77. See generally Pierre Schlag, My Dinner at Langdell's, 52 BUFF. L. REV. 851 (2004). They want me to be "233." I have no idea what that means. But, without presuming too much, I do believe it's going to be my big break. I am so stoked.
78. Yeah, but we don't generate the constraints any which way. That's what I told him. He said, yeah that's true - absolutely true in a contextual kind of way - but it's still not much of a constraint.
79. "Yeah we do and so does Justice Kennedy." That's what I told him. This is what he said back. "If all these normative constitutional law thinkers paid attention to what Justice Kennedy thinks, they would be incapable of writing three quarters of what they in fact write. As for the other one quarter, we don't really need it: Justice Kennedy has already thought it."
80. So what's going on here - to hell with Ockham's razor, or what? Has this guy read Kuhn? Anyone know?