treatise envy

originally published in the april 2005 copy of the u.m.d. law student paper, "the raven"

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This April 1st, I was reminded of a 1994 Michigan Law Review article that would have been the best – and probably only – April fool’s joke in law review history. “Chix Nix Bundle-o-ticks: A Feminist Critique of the Disaggregation of Property,” by Professor Jeanne L. Schroeder, was an incisive commentary on the fatuous and ethereal subject matter of much modern legal theory. In it, she undertook a neofeminist deconstructionist critique of the phallocentric implications of the “bundle of sticks” metaphor, familiar to students of property. The article cut to the core of post-modern legal studies, laying bare their rather perverse foundations and often ridiculous products.

But there were two problems. First, it was November. Second, she wasn’t joking.

No, the good professor was completely serious when she suggested that all of us unwittingly perpetuate this undercurrent of sexism. If you think I’m exaggerating, here it is from the horse’s mouth: “I argue that property as both thing and right is described, not in terms of just any physicalist imagery, but in terms of phallic imagery. That is, property is metaphorically identified with seeing, holding, and wielding the male organ or controlling, protecting, and entering the female body.”

You may ask yourself, “Self, how could such academic prattle wind its way into a journal published by one of the top law schools in the nation?” And you should explain to yourself that it does so in the same fashion that it enters courts through law clerks, and into legislation through legislative aids. It’s because of us – the MTV generation.

Publication can make or break a professor’s career. And who better to decide whether an article will make a meaningful contribution to the legal profession than a bunch of kids? At respected institutions across the nation, students just like you and me, and that dude that spent Friday night trying take two Tri-delts home with him, are rolling out of bed, heating up last week’s pad thai and poring over law review submissions.

To be fair, it does take some work to get onto a law review board. Applicants are screened for mechanics and style. But making bluebook skills the paramount criterion does little to help the board make informed decisions about what articles will help the evolution of legal theory.

You may be surprised to see this article lambasting legal academia, yet supporting the evolution of legal theory. But even a hardened pragmatist or utilitarian will admit that legal theory should not be insulated from outside influence. The law cannot be self-contained, and academic incest can only cause problems for our profession. But there must be some lines drawn between, say, sociology or economics on the one hand and pseudo-Freudian and Derridian psychoanalytic deconstructionism on the other.

Maybe it would help if we sought the help of professionals when selecting articles. But that would appear antithetical to the very nature of journals. Ours, like many others, proudly announces on our school’s website: “No longer is there an Advisory Editorial Board. Rather, faculty exercise virtually no control over the Law Review, and cooperation with the local bar associations ended in 1972.”

In today’s market for teachers, publication can mean the difference between tenure track at Harvard and an adjunct slot at a non-ABA school, and we’ve made students responsible for the primary indicator of a professor’s worth. Tell academicians in any other profession that our journals are edited by students and I guarantee they’ll laugh.

The inmates are running the asylum. So in the end, it might not be such a bad thing that only professors read law reviews.