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Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening

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LEGAL STUDIES RESEARCH PAPER SERIES Working Paper Number 07-11 March 23, 2007 Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the State of the Art) Pierre Schlag University of Colorado Law School 97 Geo. L. J. 803 (2009) This paper can be downloaded without charge from the Social Science Research Network electronic library at: http://ssrn.com/abstract=976078ESSAY AND RESPONSESSpam Jurisprudence, Air Law, and the RankAnxiety of Nothing Happening (A Report on theState of the Art)PIERRE SCHLAG*TABLE OF CONTENTSI. EXCELLENCE IN MEDIOCRITY ............................ 809A. THE VIRTUES OF EXCELLENCE IN MEDIOCRITY ............... 809B. THE TYRANNY OF THE TWO BELL CURVES .................. 811II. A THEORY OF THE SORRY STATE .......................... 812A. B⫹ JURISPRUDENCE ................................. 812B. AIR LAW ........................................ 812C. LEGITIMATION NEEDS ............................... 813D. THE FACTICITY OF LAW .............................. 814E. REDUCTIONISM RULES ............................... 815F. POST-MORTEMISM .................................. 819III. WHAT IT’S LIKE ..................................... 821* Byron R. White Professor of Law and former Associate Dean for Research, University ofColorado Law School. © 2009, Pierre Schlag. I wish to thank many people who would no doubt prefernot to be associated by name with this essay. By way of providing some context, I offer the followingobservations:During the rock n’ roll era (circa 1955–1980), young males developed a habit of imitating theirfavorite rock stars by pretending to play a non-existent guitar. This behavior became known as “airguitar.” It was a practice of dubious value: On the one hand, air guitar produced no real sound. On theother hand, no one playing air guitar ever struck a false note. The definitive article is Adam Liptak,Playing Air Guitar, N.Y. TIMES, Sept. 1, 1985, at A40. The relation of air guitar to contemporary legalscholarship is relatively straightforward. As for Spam Jurisprudence, it pretty much speaks for itself.Rank Anxiety—a more interesting phenomenon—was the ruling epistemology in law schools at thebeginning of the twenty-first century. At that particular juncture, radical insecurity about the nature ofthe enterprise (along with the intense corporatization of the University) led to widely publicized effortsto gauge individual and institutional contributions to “legal scholarship” by reference to various rankingschemes. Virtually everyone decried the rankings. Virtually everyone followed them. It is thought thatSpam Jurisprudence and Rank Anxiety were related phenomena. Some suggested a positive feedbackloop.803A. CASE-LAW JOURNALISM .............................. 821B. LCM ........................................... 823C. THE PERPETUAL LAW SCHOOL EXAM ..................... 824D. WHERE DOES IT ALL END? ............................ 826E. RANK INSECURITY .................................. 826F. SO WHAT? ....................................... 827G. WHY THINGS WILL GET WORSE ......................... 830H. ARE DEANS RESPONSIBLE? ............................ 831I. WHAT SHOULD BE DONE? ............................. 831In 1969, I saw The Endless Summer.1It was a surfer movie about two guys(Robert and Mike) who traveled the world in search of the perfect wave. Highart—it was not. Plus, the plot was thin. But there was one line that, for mygeneration, will go down as one of the all-time great movie lines ever. Andalways it was a line delivered by some local to Robert and Mike, the surferdudes, as they arrived on the scene of yet another dispiritingly becalmed ocean.And every time, the genial local, always and forever smiling, would look atRobert and Mike and say, “You guys reeeeeaaaaaaaally missed it. You should’vebeen here yesterday.”I mention this because it was exactly this line that popped into my mind rightbefore I was to give a talk at Harvard to young law faculty. Now, pleaseunderstand that I know that you are never—ever—supposed to say that toyounger generations. It’s bad form. And so as I walked towards the room for thetalk, I told myself, “You can absolutely not say that.”2But it came out anyway: “You guys reeeeeaaaaaaaally missed it. You shouldhave been here yesterday.” Well, not in so many words, but close enough. Andthe reason I’m mentioning this now is to make it incontestably clear that I reallydo know you’re not supposed to say that and also that I’m about to say it again.You guys reeeeeaaaaaaaally ....Andthereason that’s true is that Americanlegal scholarship today is dead—totally dead, deader than at any time in the pastthirty years. It is more dead, vastly and exponentially more dead, than criticallegal studies was ever dead during its most dead period.Nothing’s happening.Now it’s true that we’re producing at a vastly faster rate than ever before.More papers. More conferences. More panels. More symposia. More blogs. And1. The movie was actually released in 1966.2. It’s really not responsible to say this as a tenured faculty member. I mean here are these youngprofessors on your faculty, looking to you for help and what is that you come up with? “You guys reallymissed it?” You cannot say that. It’s unacceptable. Utterly and totally unacceptable.804 [Vol. 97:803THE GEORGETOWN LAW JOURNALfaster and faster too. More and faster. Over seven thousand American legalacademics3—and all of them cranking out those talks and papers as fast aspossible. The speed of legal scholarship is just off the charts right now.And yet, nothing’s happening.4How could this possibly be? The short answer is that, all around us, there ismore, vastly more, of nothing happening than ever before. Now, this mightseem odd, but upon reflection, it’s not. In fact, not at all. Indeed, if anything, theaccelerated culture of legal scholarship has positive feedback effects on nothinghappening:5Who, after all, would have the time to notice the vacancy of theenterprise? More to the point perhaps, who would be foolish enough to point itout?This would be me.6Now, I do have enough sense not to dwell on how absolutely terrific thingswere twenty years ago. (Which, by the way, in a relative sense, they were.)Instead, I will dwell on how truly awful things are today.Could things be any different?On the one hand, I want to say of the dominant paradigm of legal scholarship:It


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