Thursday, December 12, 2013
I happen to agree with the recent New York Times article on the usefulness of legal research. As many will recall, the basic idea was that a great deal of what is published is only that -- it exists in print and is largely unread or impractical. Part of the problem is that writing is a bit like hazing. Young people must do it to join the fraternity even if they have little new to say. Another problem is the actor and audience problem. Law professors appear are both. As writers they are the actors and as readers they are the audience -- the only audience. So they play their part and then rush back to the audience to applaud the "acts" of others. In these instances the work may be so theoretical that it is only of interest to very few, if any, and perhaps useful to no one at all. This is related to or the same as the skyhook problem as described by Monroe Freedman. As I understand it, work that is too theoretical and too burdened by assumptions is comparable to engineers talking about the impossible. Monroe H. Freedman, A Critique of Philosophizing About Lawyers' Ethics," 25 Geo. J. Legal Ethics 91 (2012).
That was how an Article by Daniel Markovits and Alan Schwartz, "The Myth of the Efficient Breach: New Defenses of the Expectancy Interest," 97 Va. L. Rev. 1939 (2011), struck me. Why write anything further about the efficient breach? Of course, as always the joke was on me. I immediately set out to write yet another article about efficient breach which essentially says it does not exist, and Markovits and Schwartz are covering ground that is in large part both old and irrelevant. And with that I became the actor, the audience, and an actor acting out the roles of the actor an audience. I think this means my article, "A Nihilistic View of the Efficient Breach" 2013 Mich St.L. Rev. 167 , was a skyhook for skyhooks. If any of this interest to you and I hope not. Here is the link.
I realized why we do much of our writing. It's fun and we are addicted to ideas. It's a pretty good job! But are we at times too self indulgent?