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The review essay is widely deemed an inferior piece of legal writing to the full-fledged article or even to the essay full-stop.  I have often wondered why.  I think the review essay is disparaged primarily because it is derivative.  It isn't as original as the article.  Its claims are not as novel.  It depends upon the ideas and claims made by the object of its attentions.  It's just a reaction to someone else's original work.  And what legal scholars want, above all else, is to say something new, something that has never been uttered or heard before and that will leave their readership (such as it is) ravished in the wake of its raw and unconditioned originality.

In this maiden-voyage post, I want to argue that the maligned features of the review essay are exactly its virtues.  My friend Paul H. has in the past written positively on this site about the review essay -- he has, I think, praised its usefulness, economy, and readability.  I agree with much that he says, yet it strikes me that these qualities relate especially to the "essay" component of the review essay.

But the real virtue of the review essay is its studied lack of novelty, at least in the sense in which novelty seems to be prized in legal academic writing. 

The best part of the review essay is the review part.  Taking another scholar's thoughts seriously enough to examine them as the principal aim of a single piece is not the least intellectual virtue.  Learning how to respond to those arguments with delicacy and care ought to be considered a crucial part of the legal academic's art.  It is a scholarly delight to observe the manner in which experts in a field address one another's arguments, the styles and modes with which they engage the particular claims of their colleagues, and the ways in which their own thoughts gradually germinate and develop from that highly contextualized engagement.

The review essay is a sanitary antidote to certain illusions of legal scholarship.  Primary among these is the belief that only that which is entirely novel is worth saying at all.  In fact, novelty has an uncertain relationship to other scholarly virtues.  Some scholarship is careful, subtle, clever, fair-minded, rigorous, elegant, thoughtful, erudite...and novel.  But does scholarship become much less valuable -- qualitatively less worthwhile -- in the absence of that last feature?  Another thought -- much that is original does not descend from the heavens as a bolt from the blue.  Sometimes it emerges creepingly, painstakingly, as the byproduct (and not the overt target) of gradually accreting reflections and insights.  At all events, novelty should not predominate among the academic virtues.  An unqualified premium on novelty may actually disserve legal scholarship.  If it has been said before, no one will know any better.  No one will want to know.  Better not to know.

"Make it New!"  More than a few well-intentioned and kindly law professors have helpfully informed me in no uncertain terms that novelty is one of the unbreakable Commandments of legal scholarship.  But Ezra Pound himself might agree that in order to make it new, one must have a fairly clear idea of what "it" is.  And "it," as Louis Menand has observed, is the Old.  The Old clamors for engagement and response.  It invites marination.  The Old is the furniture adorning the academic house, and it's deceptively difficult to learn how not to crash right into it.  For young scholars, especially (like me!), the importance of being pickled in the Old -- of stewing for a good long time in academic work of the past and giving it patient and sustained attention -- is particularly acute.

The mystery is that it's surely true that no one writes anything in legal academia without citations. Many, many citations.  And citations by the kiloton do seem to suggest some level of engagement with the Old.  What, then, explains the comparative disdain in which the review essay is held?  Why is it considered a lesser beast?

I think the answer may lie in the thought that the review essay doesn't stand alone.  Its claims are not enough those of the author -- at least the author idealized as the solitary seafarer fearlessly navigating tempestuous and uncharted oceans (cue the Wagnerian soundtrack).  The review essay is not sufficiently autonomous because its content is invariably bonded to another person's ideas.  It isn't its own man, making its own heroically innovative claims.  This is novelty as ideology.

If this ersatz Romanticism is a view that anyone actually holds, I don't see much to commend it.  It is high time for the philosophy of legal academic writing to take the modernist turn (and only a century late...not bad for law).  It is the height of callow arrogance to believe that something is worth saying just in virtue of its novelty.  A novelty shop trucks in peculiar, insignificant, cheap, and ugly ephemera.  Why should that be the beau ideal for one's writing? Yet legal academic writing seems profoundly committed to the ideology of novelty.  Professor Volokh's tremendously practical book on the subject is confirmation enough (see p.13).  But purely derivative reaction, too, can stimulate originality, albeit of a different sort -- originality "from the bottom up," marinated in the Old, but slowly fermenting into something else, and without feeling it necessary to trumpet its novelty -- to bathe it neon lest it go unnoticed.  Legal academics ought to partake more liberally of the organized pleasures and stylized rigors of reaction (with student editors' help, of course).

The review essay goes some small distance to puncturing the illusion that novelty is and must always be best.  It compels the writer to think microscopically, within an architecture not of her own making.  It is a mannered mode of writing.  It is constraining to be forced to think in this way.  It is delimiting.  It is rooting.  One is not free to squirt out one's mind all over the page -- for all the world to see in the grotesque fullness of its barbarous and naked singularity.

So much the better.  The legal academy needs its Tintorettos and Vasaris.

[Thanks to Dan and the co-bloggers for inviting me.]   

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