Tuesday, August 9, 2016

Things Law Professors Say: I Needed to Unpack Law Professors’ Normative Behavior

I am not the first to notice that law professors, and academics generally, have their own jargon and favorite buzzwords.  Some websites do a nice job of highlighting (or mocking) many of the odds turns of phrase many of us use.  Lawyers in the practicing bar do this, too, of course, and other professionals, especially business people (see, e.g., Dilbert) and public relations professionals.

I try not to be too jargon-y, but I have caught myself more than a few times.  I am big on “incentivize,” for example.   After attending a great SEALS Conference (likely more on that to come), I came away with a bunch of new ideas, a few new friends, and some hope for future collaboration.  I also came away noticing that, sometimes, as a group, “we talk funny.”  On that front, two words keep coming to my mind: “unpack” and “normative.”

So, when did we all “need” to start “unpacking” arguments?

This seemed like a relatively recent phenomenon to me, so I checked.  A Westlaw search of “adv: unpack! /3 argument” reveals 140 uses in Secondary Sources.  The first such reference appears in a 1982 law review article: Michael Moore, Moral Reality, 1982 Wis. L. Rev. 1061 (1982).  The phrase doesn’t appear again until 1988, in this article: Jeffrey N. Gordon, Ties That Bond: Dual Class Common Stock and the Problem of Shareholder Choice, 76 Cal. L. Rev. 1 (1988). Of the 140 citations, 113 (or 80%) of those have appeared since January 1, 2000 (69, or nearly 50%, have appeared since 2010). Relatively modest numbers, frankly, compared to how often I think I heard it said, but maybe we're just getting ramped up.  

And when did things become “normative?”

It also seemed to me that it’s relatively recent that the things we expect to happen (or people to do) became “normative” in legal academic circles. Before that, I think we called things the standard or the norm, but it was far less common that legal academics discussed “normative” behavior in the way we do now.   

A Westlaw search bears this out, too. A search of all secondary sources on Westlaw before January 1, 2000, revealed that the term had been used in 2,668 pieces. Since that date, normative has shown up in 7,270.  The term has obviously been around for a long time, and has value in many contexts, but saying “normative” is the new normal.  

To be clear, I don’t think the use of all jargon is bad, and I appreciate that as law professors do more interdisciplinary work, we will expand our jargon into other fields.  Sometimes specific words help us communicate more precisely in a way that increases usefulness and understanding.  I like terms of art and specificity.  (See, e.g., any of my rants about LLCs.) I’m just observing what seems like a shift in how we talk.  That’s not necessarily a bad thing. Maybe it’s just a thing. 

I welcome any comments on these terms, or even better, a list of other words or phrases I missed.  I know there's a lot more out there.  


Conferences, Current Affairs, Joshua P. Fershee, Law School, Teaching, Writing | Permalink


and why is "everything" in "quotes"?

Posted by: Elaine Wilson | Aug 9, 2016 1:56:37 PM

Because I don't really say "normative" or "unpack." It's other people saying it. And I thought it was funny to put "need" in quotes.

Posted by: Joshua Fershee | Aug 9, 2016 2:26:04 PM

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