Dissertation Disease

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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17 Responses

  1. Lawrence Cunningham says:

    Bravo.

  2. ReponsetoAngryLawProfessor says:

    This is utterly ridiculous and would be pretty funny if this were April 1. Turns out it just comes off as bitter and substantively incorrect.

    (1) Please reflect upon the idea that a law professor is claiming that anyone in the world is using too much jargon. You can just go ahead and retract that one right off the bat. Every field has terms of art (i.e. what an outsider to the respective space might call jargon).

    (2) 300 + footnotes per article vs. say 30 references (there is jargon for this — it is called “an order of magnitude”)

    (3) “Way too long” — Dude check out average law review versus average paper in the social and physical sciences. Law reviews are roughly twice as long with half as much content being conveyed.

    (4) “Dull Writing”
    No doubt the legal academy does display high quality writing. The problem is when it members discuss a concept for which they possess a genuine lack of substantive knowledge. This is particularly true when it comes to high end work in the social and physical sciences. Let me put it this way — Malcom Gladwell is a damn good writer but I would not turn to him to teach me about anything that matters.

  3. Jessie Owley says:

    As a JD/PhD, I agree with much of this post. I was just thinking about this today as I stared at my overly long work in progress (how in the world did I end up with 100 pages). The issue isn’t that peer reviewed articles are shorter and folks with PhDs tend to write long articles, it is that law profs with PhDs (especially newbies… who are also the ones most likely to have PhDs) write longer law review articles than other prawfs do.

    I also think the habit of including a literature review section in dissertations and masters theses is hard to break. This is more likely what causes the problem that GM notes. The number of footnotes in an article doesn’t get at that issue.

    Frankly, I am not sure about the “dull writing” comment though. Perhaps this depends on your PhD program. My dissertation was probably more lively and informal than my student note, for example.

  4. Ken Rhodes says:

    @ResponseTo… I do not agree that this is ridiculous, or even slightly silly.

    I don’t agree with your characterization of the use of jargon. Law reviews are not blogs. They are specialized publications oriented to a specialized audience. The Proceedings of the IEEE is always filled with jargon, and nobody complains about it there either.

    Then again, few but engineers try to read the Proceediongs. OTOH, a Law Review article is almost always written in English, save for a few Latin terms of art which are easy to look up. The key is that looking them up is sufficient–I don’t have to go take a whole separate course to understand them.

    And thus I can read, and understand, and converse about, and question, a law review article, or a post here on Concurring Opinions, in spite of being a techno-nerd with no law school in my background.

    I also wonder about your final point. Of course — if a person writes about something for which he “lacks substantive knowledge” then his writing is simply nice-sounding words strung together. But are you seriously suggesting that Malcolm Gladwell has no substantive knowledge of the subjects he writes about?

    And in case you are, then how would you characterize other skilled writers who have a knack for explaining arcane subjects in understandable English? Do you really think Michael Lewis has “no substantive knowledge” of baseball? Or that Isaac Asimov had “no substantive knowledge” of math, physics, chemistry, astronomy, biology …?

    The ability to translate substantive knowledge into understandable prose is a talent to be prized, yet it seems sometimes to be suppressed by the strictures of academe.

  5. Matt says:

    Like number 2 above, I find this a bit funny. That’s because if you look at a random philosophy journal (to take my PhD field) and compare it to a random law review, even focusing on articles written just by people w/o a PhD, you’ll certainly find that the law review article does worse on numbers 2-4, and sometimes on number 1. (There’s fair amount of Jargon in philosophy, of course, but usually it’s of the “useful shorthand for insiders” sort.) The “what other people think” and “too long” complaints are especially funny to me, as so much of a typical law review is made up of the sort of literature review that would have no place in a normal philosophy journal, and the most common length for a philosophy article is roughly 20-25 pages. I can’t comment on other fields as clearly, but this seems to me to be completely off-base, at least when put generally.

  6. ReponsetoAngryLawProfessor says:

    Folks try to be a bit reflective — the claim that other disciplines are worse on the jargon front thing is obviously incorrect. Your ignorance of the terms is the recent that you feel it is jargon.

    The “too much discussion of what other people think.” If anything legal academy is WORSE on these counts than other disciplines. It is certainly NOT better.

    @Ken Rhodes
    Translation is indeed a prized skill so long as the relevant information is not lost in that process. This brings us to Gladwell. The inaccuracies associated with his work have been well documented in other venues (for a small sample see Google autocomplete for phrase “malcolm gladwell wrong”).

    Metapoint:
    This post reminds me of the Office episode where Michael Scott gives the guest lecture to the b-school class. The thrust of what he says is that the students with their “fancy book learning” don’t understand all of the life lessons that we in the trenches understand. It did not work for Michael Scott and it does not work here either.

    You can try to convince yourselves that you are somehow better for not having got a PhD but the law hiring market has spoken.

    Get bitter or get better — I suggest you try the get better part.

  7. Orin Kerr says:

    I do think there’s an important distinction between jargon in the sense of “terms people in the field know used as short hand,” as Matt points out, and the jargon in the sense of “overly complicated words used ro create an impression of sophistication.” The former is useful; the latter is not.

  8. Gerard Magliocca says:

    I was not exempting legal scholarship from this criticism. Far from it. I’m just saying that Ph.D programs are partly to blame.

  9. TJ says:

    Gerard, I like all of your points, but I don’t think they are caused by a PhD. In fact, they may even be caused primarily by getting a JD. As everyone else has been pointing out above, law review articles are far longer than any other social science discipline (point 3); and they have way more citation and footnotes than any other social science discipline (point 2). And lawyers as a group are the most stuffy, formal, risk-averse writers I know of.

    As for you aim of having a 2L understand what you are saying, the reason that doesn’t appear to be “jargon” is that they learned all of your legal jargon as 1Ls. A second-year PhD student probably could understand what you perceive to be “jargon” in their field, too.

  10. Bruce Boyden says:

    There’s a Patricia Limerick article from, I think, the CHE back in the mid-1990s that makes exactly these points about graduate studies — that the fear of revealing ignorance or mistakes leads Ph.D. students to obscure their thoughts behind impenetrable prose, a habit from which many never recover and others are hesitant to challenge (for fear of appearing ignorant themselves). But like TJ, I’m a little skeptical of the causal relationship. You see much the same thing from legal academics have have no Ph.D. training, and my snap judgement at least is that you see it in roughly the same amount you see it in history or philosophy — maybe even more, although fewer history and philosophy articles see the light of day so there’s a commensurability problem. I think it might be endemic to academia: “I don’t understand what you are saying” is typically viewed as more of a problem for the speaker than the target.

  11. g says:

    I have a JD and teach in a law school. On balance, I think this is probably a good thing. There is no doubt that I make more money than most of my friends from my PhD program, and I find law just as interesting as my PhD subject. My law-school colleagues who have not been through a doctoral program, though, seem to pick up terrible writing habits. This is what I like to call the “JD disease” that afflicts so many books and law review articles. So what are the symptoms of JD disease?

    1. Watering down of basic material.

    A prolific blogger on Concurring Opinions said recently, “My idea is that if a 2nd-year law student can’t understand what I’m saying, then I’ve failed.” One trait that I can’t stand is the lengthy recapitulation and oversimplification of basic ideas, often borrowed and distorted from other academic disciplines, that any professional peer would find unnecessary (if not discrediting). The only purpose of this kind of preamble is to make your piece comprehensible to readers without professional or academic experience. Oversimplification of basic ideas increases the chance of making an argument that’s been anticipated and, usually, refuted many times over.

    2. Ignorance of pioneers.

    Writers with JDs always give themselves away by presenting their arguments as radically novel and unprecedented. Nine times out of ten, they’re repackaging an argument that’s been made many times before. They can get away with this because publication gatekeepers are unfamiliar with most of the legal scholarship written over the past 100 years. Law professors don’t have that excuse.

    3. Plodding prose and graceless organization.

    Lively prose is not the hallmark of a law review article. Although much legal prose is commendably direct, law school teaches students a formulaic structure for presenting arguments. It also teaches them to summarize and “preview” the components of their arguments ad nauseum. In their professional writing, law professors take these lessons to awesome extremes. The result is articles containing at least 30% unnecessary filler. This may be because law professors are writing for law students and want to reinforce the lessons they’re receiving about legal writing. I’m not sure.

    4. Way too long.

    Most law professors are guilty of writing papers that kill too many trees. There is a story that when Karl Marx wrote “Das Kapital,” a friend told him that it was too long. ”I know,” Marx replied, “but people won’t take this seriously if it’s short.” In this sense, almost all law professors are Marxists.

    So my advice if you have a JD is to follow Yoda’s advice and “unlearn what you have learned.”

  12. ReponsetoAngryLawProfessor says:

    Bravo to “g”

  13. Lawrence Cunningham says:

    Ditto.

  14. Gerard Magliocca says:

    Excellent job “G.” I’m sorry that you now be drummed out of your Ph.D. program for being creative. :)

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