When is it ok to be “descriptive”
posted by Dave Hoffman
I presented a taxonomy of federal litigation today to a terrific audience at Rutgers-Camden. As I’ve covered in exhausting detail, the paper sets out to describe how lawyers organize causes of action together into complaints. It uses a method called spectral clustering to illustrate the networks of legal theories that typically are pled together. (It does some more stuff, but that’s the gist.) As often happens when presenting this particular paper, it was pointed out to me that the project lacks a clearly defined normative “so what”. This is basically correct. The “so what” of the paper is “this is a different, more-finely grained, way to see how attorneys think and produce cases. With pretty pictures. How do you like them apples?”
As I said, I tend to get the so-what objection quite often when presenting this paper, and it’s pushed my co-authors and I to make the paper clearer about the implications of the method. At the same time, it has made me even more aware of the bias in legal writing to come up with papers that do more than taxonomize, or describe. This is a well-known problem with the legal academy. True, taxonomies can be highly successful – Solove’s Taxonomy article is just one recent hit in a long parade of exceptionally good papers that basically try out different ways to organize legal concepts. But those papers generally pitch the contribution of taxonomies as systems to harmonize doctrine, or because they illustrate something about the world that needs fixing, or they uncover a missing category that is novel and interesting.
What’s less common is work that is no more than descriptive – this is what the world looks like; this is what happened – and doesn’t go on to fix or recommend a single thing. Often such work is derided as mere reportage, a practitioner’s piece, or (worse) an uninteresting collection of facts, put together without a synthesis of why we should care. (Actually, some papers are attacked on all three grounds.) But other times, descriptive work is seen universally to be immensely important and valuable, even if it doesn’t advance any prescriptive agenda. Some of the middle-period Law and Society papers have this feel, though of course L&S generally is quite ideological.
You may be wondering: what’s the so-what of this post? Here it comes:
-what is your sense of the appropriate criteria for deciding that purely descriptive scholarship makes a contribution?
-relatedly, if you were advising a first-time scholar, would you advise against writing a paper that is missing a policy solution in Part IV?
My answer to the first question is that schools and faculties vary widely, and consequently I’d say the risk averse response to the second question is very, very clear. Discuss.