Creating Legal Scholarship? Are We Writers?
posted by Carrie Menkel-Meadow
Do we who write legal scholarship, books and articles, think of ourselves as “creative writers”? And if so, how do we write? A wonderful new book, Off the Page: Writers Talk About Beginnings, Endings and Everything In Between (edited by Carole Burns, (WW.Norton & Co. NY,2008), providing excerpts of writers on writing from the pages of the Washington Post, suggests some interesting questions for us to think about. How do we start a project of legal writing or scholarship? A contested area of law? A hypenated title (a wise dean once said to me every law review article needs a colonic purge)? The juxtaposition of two conflicting ideas (my own student note was inspired in this way over 30 years ago (”The Inevitable Interplay of Title VII and the NLRA” — contradictions in ideas about union seniority and promotion of affirmative action ideas). Do we conjure up a color (as A.S. Byatt does)? Or a character ( particular legal actors) as Michael Cunningham does? Or must the article or book have a legal “plot” or story? Or a “flash” or an “irritant” (Gish Jen)?
It might be interesting for legal scholars to write and think about their own creative processes. Over the years, friends and colleagues have reported quite different ways of “creating” legal scholarship. One colleague reported she wrote out her argument first and then had student research assistants find the footnote support for her. Another said she wrote to create a coherent “story” of how the law should be and then dealt with the “actual” law later in the footnotes. I have always felt that my entire writing style was shaped by law review writing. I can’t say anything without dropping a footnote (fortunately, I can’t do that so easily here), looking for authority for what I say and then taking a very interesting digression into all the books and articles I have accumulated to document what I already think or have learned from others. One can avoid writing for days, weeks, even months that way!
With the development of seminars, fellowships, and materials (see e.g. Eugene Volokh and Alex Kozinski, Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers and Getting On Law Review, 3rd. ed., 2007) which attempt to teach law students and young scholars how to conceive of and complete a work of legal scholarship, what might we learn about thinking, writing and creating from creative writing?
Think about:
1. How do we begin? (Research/thesis first? or “free writing” from a thought, inspiration, class comment, argument with a colleague, disagreement with a decision or legal policy?)
2. How actively or passively do we write? (A feminist friend of mine once wrote a whole article about the history of feminist thought without naming a single person who created or litigated feminist legal theory.) Are there legal actors in our stories or are we “objective” and neutral observers about how the law develops.
3. Where do our ideas come from? (How original, how do we check for intellectual, as well as case or law “pre-emption” or creativity? How interdisciplinarily do we think?
4. How do we write? (In disciplined, so many words, hours at a time, or as the “flow” directs us– between classes, babies crying, student meetings, faculty seminars)
5. Where do we write? (in the library, at home, on laptops in the skies, now in exotic leave of absence locales, far away from an American law book, inspired or not by comparative legal systems and actors?)
6. What words/language style do we use? Clear, accessible, or full of jargon and speciality vocabulary?
7. Whom do we show our writing to? (Critics at the office, at home, distantly admired mentors and leaders in their fields, non-lawyers, children, significant others, judges for whom we have clerked?)
8. How often do we revise?
9. What does it feel like when someone writes a better version or has the same thought or the law changes or the world changes and all your work seems for naught?
10. To what audience do we write? (The Supreme Court, other academics, our spouses, our mothers, our mentors, our students, practicing lawyers, prize committees, tenure committees)
11.How do we know we have said something worth saying? (Being disagreed with, hits on SSRN, citation listings.I once complained about how I was being criticised as a “vulgar Gilliganite” (”difference feminism”), when an academic colleague pointed out, “at least you are being read and talked about, if misinterpreted…now you can respond.”. Now, I get invited to teach and lecture all over the world because someone has read my texts on ADR and I feel more “listened to” abroad than at home).
12. How much do we read, think about and consider what has gone before us? (As an increasingly older scholar I sometimes marvel at how little junior scholars read and cite those who had the same idea decades ago–I now realise I was guilty of this myself as a younger scholar…Either there is “nothing new under the sun” or each moment we “make ourselves anew.”) How appreciative we should be to those whose shoulders we stand on. (see Robert Merton, The Shoulders of Giants).
13. How do we know when we have been moved/stimulated by really good writing? (Joe Singer, thank you for The Nihilist and the Cards, Yale L. J. so many years ago, and Marc Galantaer, Why The Haves Come Out Ahead and Bob Mnookin and Lou Kornhauser, Bargaining in the Shadow of the Law–my personal favorites. What are yours?
14. How did we learn to think and write as legal scholars (who are the silent mentors or the voices in our heads who inspire us to keep thinking and writing, and why?)
15. Given how little we are listened to these days by courts and policy makers (and each other–see the mounting piles of reprints in my office), why do we keep on going? What moves us?
Well, just some thoughts to keep our creative juices flowing on a day (Martin Luther King, Jr. Day) when we can stop awhile and reflect on what we do, why we do it and whether we can “be the change we want to make in the world” (M.K. Gandhi).
January 21, 2008 at 1:12 pm
Posted in: Articles and Books
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Responses (4)
Frank - January 21, 2008 at 4:28 pm
Wonderful post.
As for how and where to write: ala Byatt (Matisse Stories?), I’ve always wanted a totally blank room to write in. I’ve heard that Xingjian Gao actually does compose his novels in an empty room on blank paper on a glass table.
But I’ve never come close to doing this, and basically have a ton of papers/files all over my real/virtual desktop.
I find this discussion of productivity interesting:
http://www.wnyc.org/shows/bl/episodes/2007/12/13/segments/90395
“Andy Hines, futurist and director of consulting at Social Technologies, a DC consulting company, and Lisa Belkin, New York Times “Life’s Work” columnist . . . talk about “white spaces” where people find their creativity. Where is your white space?”
Finally, Julie Cohen has a great reflection on creativity and copyright theory that makes me wonder why I used the word “productivity” above. Does the word “creativity” sound too subjective, too frivolous? On the other hand, doesn’t the term “productivity” smack too much of Gradgrind-style economism?
Whatever the term, I have found that the key to motivation is to have a deadline (ideally for a conference) where I can discuss ideas with others. To the extent we can model these sorts of interactions online–or can develop innovative ways of collaborating on work together–legal scholars may be able to catch up to the level of cooperation evident in science. See, e.g.:
http://madisonian.net/archives/2007/12/22/egalitarian-synthetic-biology/
Tarun Jain - January 22, 2008 at 5:17 am
A nice read for sure. On a similar looking topic comparing legal articles and law blogs, I had an occasion to discuss a few ingredients to distinguish and dwell upon the same. Thought would share them with you all.
http://legalperspectives.blogspot.com/2007/12/legal-blogs-versus-legal-scholarship.html
Mister Thorne - January 22, 2008 at 11:30 am
Hamline University has a new program meant “to produce lawyers capable of exploring social and political issues through fiction and creative nonfiction writing.”
Here’s the story:
http://www.insidehighered.com/news/2008/01/18/hamline
A.J. Sutter - January 25, 2008 at 11:06 pm
Apropos of point 10: As a practitioner (and a non-litigator, at that), I’d be interested to know how many, or to what extent, academic authors believe that they’re writing for practicing lawyers.
For example, there’s a huge academic output about intellectual property, which is one of my practice specialties. Some of it is interesting at an intellectual level, occasionally an article is useful for some writing I do for a business magazine (especially if it’s grounded in history, rather than in economic theory); but for my practice almost none has been helpful.
So I’d be interested to know what are writers’ expectations about their audience — has anyone done a survey?
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