Friday Frivolity: Sid DeLong Gets His Laugh At Last

[Wait for it: There’s a pretty good visual joke at the end!]

Marketable Titles
Sidney W. DeLong

The Author, upon hitting on the perfect title

This Essay concerns one of the most important challenges faced by a legal scholar: how to choose a title for your article. I am sure that many a priceless contribution to legal analysis has languished unread because of a poor title. Indeed, perhaps it even languishes unpublished for the same reason. Worst of all, it may even languish unwritten.

In the days when I used to send off unsolicited manuscripts, I envisioned them falling into the hands of a jaded student editor, green eye-shade pulled low over a beetled brow, chewing on a cold cigar, knee deep in rejected manuscripts, muttering as he wads mine up and tosses it aside: “When will these mugs learn? Ya gotta have a hook.”

Of course, such a cynical dismissal would never have happened when an editor evaluates a submission by a professor at his own school. Something more politic is in order:

Professor: “Well what did you think of my article on the Constitution?”

Student editor: “It was fine, Professor. We will certainly be happy to publish it. But I notice it is untitled. What are you going to call it?”

Professor: “I was thinking of “The First Amendment.”

Student editor: “Gee Professor, that’s, uh, direct and to the point. But I think maybe that one has been used.”

Professor: “Well, how about, “A Theory of the First Amendment”?

S.E: “That’s better, certainly. But somehow, I think you deserve more.”

A lengthy discussion and exchange of drafts ensues, producing something like:

Spaction! A First-Amendment Theory of Speech and Action.

That one will sell!

Titles present a supply chain problem in the law review pipeline. In comparison with the wealth of unpublished legal scholarship, there is a serious undersupply of excellent, or even adequate, titles. It is a little-known fact, however, that hidden away in the Cloud and Post-it notes can be found many excellent but as-yet-unpublished free-floating titles without articles under them. Enticing suggestions and thought-provoking invitations, shimmering like mirages luring the thirsty reader to an arid doom.

Most of us in the producer’s side of this evil market harbor at least one great title idea we've been saving in the hope of fitting an article under it. Even, I, with my modest publication record, have a surprisingly large bank of top-flight titles tucked away, with nowhere to put them. One of my favorites is: Risk-bearing, Childbearing, and Ball Bearings: The Economics of Contract Law. Any takers? I can’t come up with anything.

I also have on offer: This Page Intentionally Left Blank;.

Whatever. The mismatch of titles and articles immediately suggests a market solution: I envision a clearinghouse, a place where homeless titles and nameless articles could meet each other with a view toward mutual exchange. An outright sale or exclusive license of the title to the author would be standard, although conceivably a substandard article could be sold to the owner of an outstanding title. Trade usage might evolve toward some form of shared credit: “This article was written by Professor XXX, Titled by Professor YYY, in a font selected by Assistant Professor ZZZ.”

Why should we not all get together and exchange titles? If immediate sales are not feasible, we can create a catalog or title bank of unused titles.

Nachlass is the term for the unpublished work of a deceased scholar. I don’t know what one’s nachlass is called before death, but I am busy assembling mine. If one of us died, his unused titles could be auctioned off by his estate. And a prompt sale is always advisable: We are all at risk of the AI algorithm, of course, the pathetically simple piece of software that will generate sure-fire titles. In any case, some market in titles should be established, if only to prevent black market transactions.

In the event of market failure, of course, you can always roll your own. Effective homemade titles are surprisingly easy to cook up, but if you are new to the game, you should be aware of a few guidelines.

To dispel one misconception at the outset, truth and accuracy in titling are neither required nor desirable. Titled accurately, most law review articles would be called something like, “The Trivial Implications of a Few Inconsistencies in an Extremely Obscure Corner of the Law: A Tedious and Tendentious Discussion, Preceded by an Unnecessary and Undigestible Clot of Legal History, and Followed by a Handful of Self-Evident Yet Somehow Dubious, Conclusions.”  Happily, nothing in the Blue Book says that a law review article must have a truthful title. I’ve checked.

Regarding form, I have already given my best ideas on use of the colon in law review titling[1] and am unable to improve on them. A review of law review titles over the last three decades shows that my core advice to avoid post-colonial humor remains sound: put the funny bit in front of the colon and the serious bit after it.

The Author, upon discovering a typo in a published article

Lastly, if you are lucky enough to get your article published as titled, you are not yet out of the woods. You should carefully proofread the title in the final draft of your article. As hard as this may be to believe, hard to believe that is unless you know me, I have had no fewer than three of my rarely published articles have errors in the title that I somehow did not catch.

Efficiency of a Disgorgement for Breach of Contract should instead have been:

The Efficiency of Disgorgement as a Remedy for Breach of Contract, 22 Ind. L. Rev. 737-775 (1989).

What is a Contract should instead have been:

What is a Contract? 67 S. Car. L. Rev. 99 (2016).

Paradigm Shift: The #MeToo Movement and The Paradox of Bribery Secrets should have been:

Paradigm Shift: #MeToo and the Paradox of Secrets Bribery, 52 U. Pac. L. Rev.7 (2020)

Frankly, I have no confidence in the title to this one either, on the off chance you are now reading it.

Finally, do not end your proof-reading with the title. Sadly, the punch line of the above-cited article on titles, : An Appraisal, was completely muffed.

Here is how the published line read:

Alas, however, for those unhappy articles containing neither humor nor serious academic content, only one appropriate title remains:

And the reader ends with “Huh? Did you leave something off?”

No, because here is how the line should have read:

“Alas, however, for those unhappy articles containing neither humor nor serious academic content, only one appropriate title remains  

                                                            :

There! A colon standing alone, centered on the line[2]! That is what my last line should have been!!! How clever it would have been: a title consisting entirely of a colon, a conjunction joining two nothings, the ultimate post-modern vacuity.

And now, at last, I have corrected it. That is really the only reason I wrote this. Perhaps a better title for it would have been Errrata.

 

[1]Sidney W. DeLong, : An Appraisal, 41 J. Legal Ed. 483 (1991).

https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1333&context=faculty

[2] In the published article, the colon stood at the end of the line, leading nowhere.