An Unfortunately Common Type of Law Review Article

Being a law professor, I read a lot of law review articles.   And I find that a lot of law review articles on constitutional law topics offer an argument that goes something like this:

1) There is something bad going on in the world that is currently considered constitutional;

2) Of the many possible ways of interpreting the Constitution discussed in the academic literature, there is one out there that the author would like to focus on;

3) If that particular theory were adopted, the bad thing would be unconstitutional (which, presumably, is why the author wants to focus on the theory in the first place).

Therefore,

4) The courts should say that the bad thing is unconstitutional, using the described theory to get there.

These sorts of articles are common, but I find them almost uniformly unilluminating.   They mostly tell the the reader two things: first, what results the author personally thinks are bad — that is, the author’s personal policy preferences —  and second, the author’s wish that the courts do what it takes to make those preferences law. Neither of these are all that interesting in the grand scheme of things.   

Some people say articles that follow this format are “advocacy articles” and are akin to appellate briefs. But I think they’re much worse than that. Appellate briefs have to follow the norms and conventions of legal practice and legal authority.  That is, they have to grapple with opposing authority, carve out a path for a court to adopt the author’s view, and make that seem like the natural way to rule. It’s not rocket science, but it’s definitely a craft.

In contrast, these sorts of articles generally just pick whatever theory the author likes that will lead to the right result, without paying any attention to whether that theory is widely recognized or not. The author generally doesn’t feel a need to actually justify the choice of theory, which is pretty frustrating if the choice of theory does the work.

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