Legal Commentary

In the body of law review articles, authors often refer to other academics as Prof. So-and-so.  In other academic disciplines, however, scholars are usually referenced without their titles.  I want to put in a plug for the less formal approach. 

There are at least four reasons: (1) With rare exception, the strength of a scholarly argument should stand or fall on the quality of the argument itself and not the academic title of the person putting forth the article.  So, titles are usually irrelevant. (2) Sometimes, an author will seek to refer to the arguments of several different people.  It seems silly to distinguish Mr. or Ms. So-and so who is, let us say, a practicing lawyer or a fellow or a legal writing instructor without the title of professor, from someone who does have the title of professor. (3) There are situations where someone's title is unclear or ambiguous.  For example, if a professor retires but is not emeritus, is the person still referred to as Prof. So-and-so?  Does it matter if the professor "retires" at 30, instead of 70? (4) Finally, when writing for an interdisciplinary audience, it probably strikes non-law academics as quaint, old-fashioned, or even elitist to refer to other academics by their professional titles.  And they may be right!

By contrast, there probably are good reasons to refer to case opinions by Judge So-and-so.  So long as the judge is acting in the role of judge, the title signals that the referenced person really can make arguments from authority as to the positive state of the law.   Matters get complicated, though, when a judge writes a law review article.  It is awkward, for example, to refer to "Posner" when he writes as an academic and "Judge Posner" when he decides a case.  On the other hand, selective use of the title at least highlights an important difference in the referenced material.  Any suggestions on this score? 

In any event, uniformity is probably a good thing.  Best not to have the author of an article use the formal approach, then have a reply that does not, followed by subsequent replies that jump back and forth.  I see that the new Criminal Law Conversations project has adopted the untitled approach, and perhaps this will catch on over time in law reviews.