To the extent that European critical theory influenced the American legal academy, it has tended to be Michel Foucault and, more recently, Giorgio Agamben, who have affected discussions of the connection between law and politics and the power dynamics at the heart of the juridical. Jacques Derrida’s essay “The Force of Law” spawned some commentary, but Derrida’s work largely entered legal circles due to its emphasis on the indeterminacy of language and its inversion of binaries, which legal scholars took as a source for ideology critique.
The aim of this essay is to suggest what Derrida’s later forays into law and politics might contribute to thinking in American legal theory beyond what can be derived from Foucault and his inheritors. The key differences, I contend, pertain to time. In particular, Derrida’s writings lead us to reconsider the timing of the relation between the subject and the law, whether that subject is declaring independence or awaiting death. Four temporally inflected terms — decision, declaration, deferral, and event—bear a particular weight in Derrida’s discussions of the juridico-political and furnish the focal points for this essay.
'The Law Review Article' by Pierre Schlag in (2017) 88 University of Colorado Law Review states
What is a law review article? Does America know? How might we help America in this regard? Here, we approach the first question on the bias: As we have found, a growing body of learning and empirical evidence shows that genres are not merely forms, but forms that anticipate their substance. In this Article, then, we try to capture this action by undertaking the first and only comprehensive “performative study” of the genre of the law review article.
Drawing upon methodological advances and new learning far beyond anything thought previously possible, we investigate “the law review article” qua genre. What is it? What does it do? What are its implications? How does it make you feel?
By teasing out the infrastructural determinations section by section, we demonstrate rigorously that there is both far more (and far less) going on than meets the eye. In what is the first instance in the history of the United States (and perhaps the world) we enact in each section of the law review article (e.g., Part I, Part II) whatever that section is ideally supposed to accomplish. This is what we mean by “performative study.” Using this approach, the reader can experience first-hand what the law review article does to him or her IRL. In a more conventional vein, it is hoped that this Article will be useful to junior legal scholars, young scholars’ workshops, elite law school boot camps, faculty evaluation committees, associate deans for research, law review editors, and law school deans everywhere.
The Article closes with a call for improvements to the law review genre, cooperative federalism, daylight savings time, and the nature of the universe generally. The Article is addressed not merely to the Court, but to the President, to Congress, and, of course, to “We the People.” Perhaps more than anything, we call for further sustained study of “the law review effect.” A sequel, entitled “Dissertation Disease,” is currently contemplated in order to undertake a similar study of the University Press Monograph.
Schlag comments
The most important thing at the beginning of a law review article is to excite the reader’s imagination, to evoke the hope that what comes next is truly gripping. A page-turner. Something totally out of the ordinary. Perhaps not even a law review article at all. Once this moment is reached, it must be brought firmly to an end, perhaps with the aid of a long elliptical sentence, wandering around through pointless verbal detours, ultimately to leave the reader disoriented and wondering: What’s going on here? There. Done.
With this attention-grab move out of the way, and before the reader can recover his wits, he needs to be gentled into recognizing that, as with so much else in life, things sadly often are pretty much what they appear to be; that here, as elsewhere, escape and exception are unlikely, and that the typescript now well underway is indeed a law review article after all. It is time for the hook of the first paragraph to be domesticated into a manageable overarching statement that will capture the serious work to follow in the march of the Parts.1 (Part I, Part II, Part III. And so on.)
Now to be sure, none of this means that what follows cannot contain a bit of errant humor, a couple of gestalt shifts, or perhaps a flight of heroic transport. Still, in the main, the prose to follow will be a measured display of expertise and mastery—each weighted down and secured by the accumulating gravitas of available data sets, archival references, and serial bouts of case-crunching. With luck, most of this will be reserved for the footnotes. Meanwhile, in the text, seriousness is in the offing. Moderation and reasonableness predicted. Yes, there will be some romance (glimmers of utopia visible), but in the main, we will be doing accounting. Literally or figuratively. Accounting and documentation.
Voila. We are only at the fifth paragraph and already expectations have been excited, subdued, and dramatically lowered. Thus cowed into submission, the reader is prepared to undertake the familiar journey. With readerly expectations thus reset, it is the time to lower the burden of argument, as well. This can be done explicitly (not very good form) or through a more subtle frame-setting.
We will call the frame-setting happening now “entry- framing” so as to distinguish it from other kinds of framing that will occur later in the law review article. Among other things, entry-framing allows the author to elicit certain kinds of readerly attention (and inattention) as well as readerly hopes (and anxieties). This is the law review equivalent of the trial lawyer’s opening argument. It is a question of putting certain audience faculties and orientations on high alert, while lulling others to sleep. What we have here is what Althusser called “interpellation”—the calling forth of a particular self, oriented and motivated to undertake certain ideologically structured roles, tasks, functions (and crucially, not certain others). Genres can do that. Yes, they can.
In the main, we will be foregrounding and backgrounding. Certain issues, problems, questions, actors, agencies, action will be placed front and center. Others will be set backstage or even off-stage. For the committed advocate, entry-framing is the place to smuggle in the most controversial claims and to do so not in the guise of claims at all, but rather more subtly as unobserved aspects of the scene.
Soon it will be time to close the Introduction. But first we need to pose the inquiry that will organize all that is yet to come. What inquiry? Note that it will have to be the sort of inquiry that is susceptible to a plausible resolution through law or law-like surrogates. The law-like surrogates are not quite law, but take the place of law. “Legal theory,” for instance, is a law-surrogate. Legal theory often presents itself (without ever actually saying so) as the law of laws, the norm of norms, the doctrine of the doctrines. Occasionally, we will put entire disciplines or sub-disciplines in charge like this. But only if they are good law-surrogates (in other words, only if they already exhibit law-like aesthetics). Economic analysis and analytical philosophy come to mind.
The important thing in articulating the inquiry to be pursued is that the formulation must be stated in such a way as to render resolution possible. The point is obvious and nearly indisputable: law review writers never discuss that which they cannot fix. No one writes a law review article where the end line reads: “Well, in conclusion, it seems like we’re all pretty much screwed.” That simply doesn’t happen. Which means—and this is important—that if ever we were screwed, you wouldn’t hear about it in a law review article. Ever. In fact, the more thoroughly and intensely screwed we are, the less likely you would be to hear about it in a law review article.
Weird, isn’t it? Yes. But it’s like that.
Let’s not think about it too much. The really important thing, always in a law review article, is to carry on. Perfectionism is the enemy. Capital letters and periods are your friends. Keep moving.
On the bright side, the commitment to address only those problems we can resolve renders topic selection much easier than might first appear. As with so many other things in life, the thing to do is to start at the end and reverse engineer. That is what lawyers do for their clients and what we legal academics do for our particular juridical utopias.
So then, what is the inquiry here? Very simply, it is an inquiry into the character of the law review article qua formal artifact. Formal as in “of form,” formal as in “formative,” and formal as in “formalism.” The basic idea is that the very form of the law review article is stylized and thus ineluctably enacts, narrows, and channels what can be said and thought.
Notice that in and of itself, this is not a terribly interesting insight. Of course, that’s what the law review article does! So do the dissertation, the picaresque novel, and the comic book. What else is to be expected? The thing that is of interest isn’t that the law review article qua artifact is constraining, channeling, or enabling. The interesting thing lies in the how of it all—how and in what ways does the law review article enact, narrow, and channel thought? That is the inquiry we will pursue here.
Begin by considering what sort of overarching structure is appropriate for a law review article. The genre furnishes the answer. Indeed, genres always furnish their own answers. That is both the virtue and vice of genres. To give an example, it is commonly said that in novels there are only two kinds of stories to tell: “A Stranger Comes to Town” and “Someone Goes on a Journey.” The same is true of a law review article, except that with a law review article, it’s not much of a journey (the starting point and the end point are rarely all that far apart) and strangers—at least real strangers—rarely come to town.
In the event real strangers do come to town, they are quickly sent packing and enjoined never to come by again. All in all, in a law review article, there is only one story to tell, and the variants are almost always the same: “There is a problem, a conflict, an issue, a puzzle, a contradiction, a paradox, an aporia in the law. This Article will resolve it using the approved m.o.’s of juridical discourse.”
Notice that we are fast reaching the limits of the average attention span for an introduction. The reader is likely to become impatient. If an oral presentation is at stake (faculty workshop?), listeners even more so. This is the point where the author should relieve the tension created by offering up a joke. Preferably something subtle. Failing that, something rude and abrupt.
