There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground.
Law reviews have been taking a beating recently. Or, more specifically, the enterprise of law professors writing long and heavily footnoted scholarship that is then selected and edited by students has been taking a beating. I’ve been meaning to write a post in defense of the law reviews (and the enterprise) for some time. But this is not that post.
No, this post is a shout-out to the essay that provides this post’s title: Fred Rodell, Goodbye to Law Reviews, 23 Va. L. Rev. 38 (1936). I found Rodell’s essay as I was poking through my copy of American Legal Realism (William W. Fisher III et al. eds., 1993), while pulling together my Spring Quarter syllabus. Since the essay is hilarious, and since nearly 80 years later people are still saying “goodbye” to the law reviews, I figured you might enjoy reading some highlights.
Rodell’s essay is best known for its gem of an opener (quoted above). And it goes on from there in a similarly enjoyable tone. Rodell laments the lack of humor in legal writing, how “law review editors knit their brows overtime to purge their publications of every crack that might produce a real laugh.” While that purging is effective on a micro level, on the whole Rodell finds it easy to get a chuckle from legal writing:
The best way to get a laugh out of a law review is to take a couple of drinks and then read an article, any article, aloud. That can be really funny.
Even way back in 1936, Rodell knew that his battle had been fought before and that it was a losing one:
Now the antediluvian or mock-heroic style in which most law review material is written has, as I am well aware, been panned before. That panning has had no effect, just as this panning will have no effect. Remember that it is by request that I am bleating my private bleat about legal literature.
I can’t do justice to his style in this short post, so just read the 8 pages. In addition to being an enjoyable read, Rodell notes some of the institutional forces that, in his view, have caused and will continue to cause academic legal writing to suffer from its various ills — particularly the professor’s professional/financial interest in publishing, the student’s employment/resume interest in editing, and the consumer’s interest in accessing articles regardless of their usefulness or readability. Rodell could have written his essay last week and it hardly would have been less timely.