Appellate Law

A Handkerchief Code For Law Reviews

By S. COTUS

If any of you frequent gay bars (or at least gay bars that resemble what I am told that gay bars are like) you will know that people there strictly follow a handkerchief code.

The point of this code is so that when people meet they can instantly tell what the other one is ?about? rather than actually going though the trouble of meeting them. Sure, this sounds shallow and superficial, but most Americans are pretty scared of meeting other people, and some want to enlist the help of the law to keep them from dating people that might be creepy or didn?t go to a law school with an acceptable rank. 

I propose the same thing for law review articles. I think law review articles should come with a simple color-coding, so that people know why the law review was written. Let?s face it folks, many law review articles are not written to contribute to the literature. They have other motivations. So, without further ado (though I am sure I will be updating this page), here is my proposed color-coding of law review articles, which will take the form of a box that appears in the upper-left corner of each page.

• Green: Article was written to illuminate the state of the law or practical in a given area.  It offers few conclusions, but might offer comparisons between, say, two forums.

• Blue: Article was written by someone with no experience, but lots of time and access to Westlaw, and attempts to explain what is going on, and add some insights.

• Purple: Article was written by someone to describe their political position on an issue in an area that probably can only resolved by politics. These include bother Federalist Society rants on the evils of filibusters and whiny rants about how our laws are prejudiced against people that just happen to be their clients (i.e. battered women, insurance companies, tortfeasors). They are of little use to anyone, because we all know that women, federal judges, political nominees, men, insurance companies, tortfeasors, and victims of torts are wronged by the law.  In essence, this article is a printed call for the whaambulance. 

• Red: Personal egoboost. In general, all articles written by judges are egomaniacal screeds. They contain little original research and are can be summarized as a) look at me; b) I am a judge; c) here are some war stories; d) you all are worse lawyers than I am.

• Orange: Institutional egoboost. Usually takes the form of a ?court history.? These usually omit the fact that the judges were (and perhaps still are) political hacks, and/or that the court originally came out on the wrong side of most civil rights and civil liberties battles. The main use of these articles for practitioners to recite them back at whoever wrote it, when they start talking about how there is no history of something happening.

• Gray: Articles which are too interdisciplinary to be of any use to any actual lawyers.  My favorite kinds are the Law and Economics ones written by non-economists.  Runners-up include literary analysis of waterboarding and critiques of the theory of the hermeneutics of the internet that don?t understand what a DNS server is.

• Clear: Student note. Student has no idea what he is writing. Professors and most lawyers don?t really care to help him or her, so it will contain a lot of really strange notions about the law.

Full post as published by Appellate Law and Practice on January 22, 2008 (boomark / email).