Legal Scholarship as Spectacular Failure

Yale Journal of Law & the Humanities Volume 30 | Issue 1 Article 1 September 2018 Legal Scholarship as Spectacular Failure Omri Ben-Zvi The Hebrew University of Jerusalem, Faculty of Law Eden Sarid University of Toronto, Faculty of Law Follow this and additional works at: https://digitalcommons.law.yale.edu/yjlh Part of the History Commons, and the Law Commons Recommended Citation Omri Ben-Zvi & Eden Sarid, Legal Scholarship as Spectacular Failure, 30 Yale J.L. & Human. (2018). Available at: https://digitalcommons.law.yale.edu/yjlh/vol30/iss1/1 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law & the Humanities by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Ben-Zvi and Sarid: Legal Scholarship as Spectacular Failure Legal Scholarship as Spectacular Failure Omri Ben-Zvi & Eden Sarid* Most authors of legal scholarship would probably hesitate to describe their writings as heroic tales of (intellectual) conquest and adventure. They would also most likely deny that they are unreliable storytellers. Equally, conventional accounts of legal scholarship tend to view it as lacking a common structure. This article challenges these assumptions by offering a novel aesthetic perspective on legal writing. We argue that most legal essays are modeled on a narrative device known as "the hero's journey," in which a protagonist (the scholar) overcomes a particularly frightening menace (the legal problem), and returns home with the bounty (the legal solution). However, there's a twist: legal theorists are institutionally conditioned to treat this story suspiciously, looking for false and misleading features, thus (perhaps unconsciously) treating the narrator as unreliable. By exposing these common literary patterns, this essay also reveals a unique and as-of-yet unexplored trade-off between two different qualities of legal scholarship: the more unreliable the reader finds the legal article, the greater the aesthetic pleasure she derives therefrom. Consequently, many legal articles are, in a way, beautiful failures. That is, unsuccessful attempts to convince their readers of the truth of their theses that nevertheless resonate with their readers aesthetically. This essay explores these ideas and explains their implications, from both a law & literature and philosophical perspective. INTRODUCTION ............ .............. 22........... 5 ....................................... 1. TPLS as Literature A. The Hero's Journey..................5........5 B. The Unreliable Narrator ............................. 13 II. The Upshot.........................................16 .......... 24 .............................. CONCLUSION * Omiri Ben-Zvi, The Hebrew University of Jerusalem, Faculty of Law; Eden Sarid, University of Toronto, Faculty of Law. The authors wish to thank Haim Abraham, Shulamit Almog. John EnnianBeech, Olga Frishman. Denise Reaume, Pierre Schlag, and Simon Stern for helpful and insightful comments, and the editors of the Yale Journal of Law & the Hwnanities for their constructive SUggestioIS. I Published by Yale Law School Legal Scholarship Repository, 2018 1 Yale Journal of Law & the Humanities, Vol. 30, Iss. 1 [2018], Art. 1 Yale Journal of Law & the Humanities 2 [Vol. 30:1 INTRODUCTION What is the value of legal scholarship? Why do legal academics continue to devote themselves to the project of producing scholarly prose, primarily dedicated to the exploration and resolution of legal puzzles? A cynic might reply that the institution of legal scholarship serves the powerful by reaffirming the status quo and ensuring that power stays where it has historically resided.' However, several other, more positive accounts have been suggested in scholarly debates on this issue. For example, some believe that legal scholarship creates a meaningful conversation about legal puzzles, which results in a thriving liberal polity.2 Others propose that engaging with legal scholarship may help in understanding how legal issues are thought about and discussed, thus helping the readers develop certain analytic skills.3 According to other accounts, legal scholarship provides courts, legislators, practitioners, and others with arguments that they can use in policy making or adjudication.' And some contend that legal scholarship is preoccupied with the discovery of the truth and the promotion of knowledge.' In this essay, we explore and defend a novel take on the value of legal scholarship. We argue that legal scholarship is valuable for aesthetic reasons. It holds significant aesthetic value (at least most of the time). Moreover, we claim that this type of aesthetic value may be higher the less legal scholarship achieves its more ordinary goals, with the prime example being knowledge production. We will not define "aesthetic value" precisely, except to note that aesthetic value is the value that 1. See e.g., Richard Posner, The State of Legal Scholarship Today: A Comment on Schlag, 97 GEO. L. J. 845, 849 (2008) ("fields that provide a significant service function in a university will retain their place even if they are intellectually weak'). 2. See Bruce A. Ackerman, The Marketplace of Ideas. 90 YALE L. J. 1131 (1981), Richard A. Epstein. Let 'The Fundamental Things Apply": Necessary and Contingent Truths in Legal Scholarship, 115 I IARV. L. REv. 1288, 1312-1313 (2002). 3. See, e.g., Deborah L. Rhode, Legal Scholarship. 115 HARV. L. REV. 1327, 1330 (2002) ("My own view is that, for scholars in a professional school, at least part of the mission is to advance understanding and promote improvement of their profession and its institutions. For legal academics, this includes all of the contexts in which law is developed, enforced, interpreted, and practiced."). 4. Id. at 1338-39 ("[O]ne of the most important functions of legal scholarship is to expose the historical, structural, and ideological underpinnings of current legal norms and to assess their social value. . . . [S]Ich work can nonetheless contribute to informed policymaking and help shape the views of students who could someday guide reform efforts."). See also, Edward L. Rubin, On Beyond Truth: A Theoy for Evaluating Legal Scholarship, 80 CAL. L. REv. 889, 903-04 (1992). 5. See, e.g., Anthony T. Kronman, Foreword: Legal Scholarship and Moral Education. 90 YALE . L. J. 955, 967-68 (1981) ("The defining characteristic of scholarship is its preoccupation with the discovery of truth. The end of scholarship is the discovery of truth and the promotion of knowledge. . . To understand the world as it truly is-this, and nothing else, is the goal of scholarship."). The question of what knowledge is, and what its value is, is raised in Plato's Aleno and is a subject of current philosophical debate. See generally JOHN HAWTHORNE. KNOWLEDGE AND LOTTERIES (2004) (...truncated)