From Pierre Schlag's 'The Faculty Workshop' (
University of Colorado Law Legal Studies Research Paper No. 11-12 ) -
what we have in most faculty workshops are extremely stylized (and formally redundant) presentations. One can easily begin to suspect then that it's not at all about the speaker. And to say it outright: Most of the time it isn't. Instead, what matters most is the disciplining effect enacted through the highly stylized questions that the speaker is asked to answer. Again, most people think that it is the speaker who is being disciplined (and surely some speakers may feel that way on occasion). But the speaker is merely the occasion for the reciprocal disciplining of audience members by each other. We are signaling to each other via our questions and thereby constructing for ourselves and each other the appropriate genre for the law review article/faculty workshop performance.
Much of this reciprocal disciplining is a subtle negotiation — performed largely by way of non-verbal cues (smile, nod, sigh, sitting up, reclining back, dropping the eyelids down to half mast, taking care of email, whispering in a neighbor's ear, reading faces, and so on).
The non-verbal cues effectively valorize or devalorize the questions asked by the audience members. The speaker (being an outsider) is often oblivious to the specific meanings engendered: Not knowing the identity of the faculty characters (or the institutional dynamics) he or she can only make educated guesses as to where the valences of faculty power may lie.
Law professors, of course, will have a hard time thinking that such non-verbal cues matter much. Life of the mind and all that. But the cues actually do — because everyone (at least at non-dysfunctional law schools) refrains from saying what they actually think. If one of your colleagues asks a dumb question, for instance, you can't really be expected to say "Well, that's pretty fucking stupid — isn't it? Work on that one ahead of time — did you?" And likewise if the speaker drones on, you can‟t really say, "So your paper — it's kind of boring. Actually, chew-on-the-furniture hurt-yourself-boring." What could a speaker possibly say to that? "No, it's not." "Well, it's interesting to me." "I've got a lot of smart people on my side." You see the point. Besides, it's not nice. That's why the infinitely more delicate (even if not altogether conceptually nuanced) non-verbal cues are so important.
Of course, it's not just the non-verbal cues that matter. The actual questions asked are important as well. But you already know the standard questions. As a gentle reminder here, I will simply list them as rapidly as possible in a single paragraph. Please do read as quickly as you can. Here goes: the rules v. standards question, the institutional competence question, the this-bit-of-history is against you question, the have you considered ... question, the 'on page 18 you say ... and yet in footnote 262, you say' ... question, the capillary trench warfare question, the I've actually worked on this as a lawyer question, the real law/real politick question, the rational utility maximizer would have done otherwise question, the cognitive error/bias of your choice question, the where's your empirical support question, the in terrorem effects question, the perverse incentives question, the institutional design question, the but you have not dealt with ... question, the how would you deal with .... question, the somewhat nastier, wouldn't you have done better arguing that ... question, and, of course, the ubiquitous what should the courts do question.
Schlag comments that -
All these questions function to construct and delimit the "ideal" law review article — the one that will successfully negotiate the gantlets of faculty workshops everywhere and score five million plus downloads. There are actually several genres that conform to these requirements, but life is brief, patience is thin, and time is fleeting, so here very quickly then is the formula for the Mother of all Law Review articles (circa 2000-2010).
This is what you must write: 1. In the article, pick a fight with a certain accepted legal approach, tradition, whathaveyou which, as you are about to show, is on at least one significant point demonstrably wrong. Bonus points if the approach, tradition, whathaveyou is already not well liked.
2. Deploy a mid-level but intellectually non-trivial theory as your framework. It should come from some extra-legal field (eg psychology). It should not be so forward-leaning as to make your audience feel cognitively challenged, but it should nonetheless be sufficiently aggressive as to imply the breaking of new ground. (Stay away from the French.)
3. Make the mid-level theory yield (this is extremely important) what is at once a common sense and a center-liberal solution. This greatly increases your (incredibly marginal) chances that some official body will actually adopt your solution — adoption being something that is oddly treated as a sign of good scholarship as opposed to what it is (or might be) — namely, a sign of good service. Hewing to a common sense center-liberal solution also greatly increases your chances that the immediate audience will believe you are right.
4. Leave enough ambiguity in your text to prompt and sustain a maximum degree of self-gratifying audience projection. A relatively crude way of doing this (though it works) is to take a fairly well settled common law notion (eg "decide cases narrowly") which people already know and extrapolate it to a vastly more self-inflated version of itself—to which you will then attach a fancy new Latinate name. In terms of symbolic economy, it's a win/win: the old knowledge of law is made to feel hot and new while the hot and new is made to feel solidly grounded in the law. Remember: No one in the legal academy has ever gone wrong by regressing towards the mean unless, of course, 1) they overdo it, or 2) they're too obvious about it — as in actually announcing it: "Regressing to the Mean — A Proposal for ..." Even then, apparently, there's not much risk.
5. In terms of tone, you basically want the stylistic equivalent of (4) above. That is to say that you want to appear servile—while nonetheless making it obvious to others that this servile affect is in service of establishing your dominance. In sharp contrast to when you were a lawyer, you want to make sure everyone understands this.
