28 February 2012

Tone Deaf Academic of the Day

The draft law review article, "Prisons, Privatization and the Elusive Employee-Contractor Distinction," by Alexander Volokh at the Emory University School of Law, previewed here and here has to rank as one of the most tone deaf, ill conceived, poorly written law review articles I read in several years, and I probably read thirty to fifty law review articles a year. The author is just so blinded by ideology and too clever by half rhetoric about conceivable possibility that trump all reality, that any legitimate point the article tries to make is drowned. Comment from the author in the two blog posts linked give a flavor of that attitude.

The writing style in the draft is dismal. It is too conversational for the format, too choppy to express extended ideas, and too afraid to really dig into and engage any particular idea. The use of the first person in this argument, when the writing style is so snarky, also perhaps unfairly undermines the article by opening it up to self-inflicted ad hominem attacks on the validity of the argument. When your article contains phrases like "And I have no basic problem with the general idea of the state action doctrine," it invites the natural response, "why should I give a shit what you think?" When you write like that you shoot yourself in the foot. A law review article is not the place for a transcript of your bull session at two in the morning over beer.

Similarly, when the Israeli Supreme Court says the private prisons are inherently unconstitutional, the right way to make sense of that reality is not to say that:

"The Court’s opinion does note a few tangible, non-question begging differences between the Israel Prison Service and private firms, but these are hardly central to the argument; nor do they succeed in distinguishing public and private prisons as a philosophical matter."

Sorry kid. When the Israeli Surpeme Court rules on a question and they have the last word, the succeeded and your argument didn't. Deal.

An example of a much better written article with somewhat similar stylistic leanings that are better executed and a somewhat similar style of argument, can be found, for example, here.

Honestly, who in their right mind hires somebody so obtuse who is such a poor academic writer to be a law professor?

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