Legal Commentary

David Foster Wallace, dead of an apparent suicide over the weekend, was the author of Infinite Jest among other novels, short stories, and journalism -- a young (since I'm around his age, I declare him to be so) and brilliant "postmodern" (whatever that means) writer whose work I've never quite liked, although my wife does. Interviews with him make clear just how smart the guy was; obituaries reveal that he had a long fight with depression which included prescription drugs and, in the past year, periods of institutionalization. There's one passage of his that seems prescient as well as right and worthy of further consideration:

[I]rony tyrannizes us. The reason why our pervasive cultural irony is so powerful and so unsatisfying is that an ironist is impossible to pin down. All U.S. irony is based on an implicit ?I don?t really mean what I?m saying.? So what does irony as a cultural norm mean to say? That it?s impossible to mean what you say? That maybe it?s too bad it?s impossible, but wake up and smell the coffee already? Most likely, I think, today?s irony ends up saying: ?How totally banal of you to ask what I really mean.? Anyone with the heretical gall to ask an ironist what he actually stands for ends up looking like an hysteric or a prig. And herein lies the oppressiveness of institutionalized irony, the too-successful rebel: the ability to interdict the question without attending to its subject is, when exercised, tyranny. It is the new junta, using the very tool that exposed its enemy to insulate itself.

I confess that I rely heavily on irony in my interpersonal dealings; it's a means of making fun of and drawing attention to the banalties and frustrations of everyday life. But I confess I've become less entertained by it as a means of popular and political discourse. I suppose I have overdosed on Jon Stewart-ness, whose sense of humor is wonderful but whose pervasiveness (made all the more arch and pervasive in the guise of Steven Colbert) transforms irony into an end in itself. There may well be no better way to draw attention to the hypocrisy of public figures than to mock and ironize their foolishness, but after a while irony begins to replace outrage as a response. It creates the expectation that there's nothing but hypocrisy in politics, law, and public life.

That said, I think irony can survive in unexpected places, when its ability to disrupt continues to have really interesting formal and even political effects. Scholarship, and especially legal scholarship, is required to be sincere; one may be allowed to pun in one's title or add a humorous or sarcastic aside in a footnote, but one must not ironize the scholarly endeavor, nor offer a snide meta-commentary on the law review article as a form and practice. Rather, one must identify (Part I); critique (Part II); and propose (Part III). There are of course exceptions in some fora (Green Bag, blogs) and among some writers (in earlier eras Thurman Arnold and less successfully Fred Rodell; more recently Duncan Kennedy; and in our current era, most regularly Pierre Schlag). Done well, scholarly irony can have really interesting effects, insofar as it questions whether scholarship can in fact mean what it says and have the effects it hopes and expects to have. And there remains a risk in scholarly irony: not only the risk that it falls flat and fails, thereby shutting down thinking rather than encouraging it, but also that the author him- or herself will not be taken seriously, whether because the reader and scholarly community thinks s/he in fact has nothing to say or the community wants to enforce the proper rules of the game against someone who would mock or reject them.

I don't mean to sound or be sanctimonious. I will undoubtedly continue to resort to ironic asides in the classroom as a means to keep the students and myself awake as we plunge forward into the byzantine bureaucratic byways of administrative law, where horrific guffaws await. Irony feels natural; it's the regime we live within. But the suicide of someone who both deployed irony and spoke eloquently against it offers a moment when it's worth reflecting on irony's power to amuse and make us its subject.