Michigan State University College of Law
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Faculty Publications
1997
Force Majeure in Legal Scholarship
James Ming Chen
Michigan State University College of Law, [email protected]
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Recommended Citation
Jim Chen, Force Majeure in Legal Scholarship, 14 Const. Comment. 427 (1997).
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BUT CF....
FORCE MAJEURE IN LEGAL
SCHOLARSHIP
Who's to blame when legal scholarship is bad? Not pedestrian, repetitive, uninspired, or poorly conceived-just bad. If
those crazy Minnesotans at Constitutional Commentary are to be
believed, the fault lies with us scholars, that we are overweening.
The "manifestly reasonable strategy" of "taking... shocking
position[s]" in the quest for tenure generates "Gresham's Law
of LeSal Scholarship."! Warped as it is by rampant "Ph. D.
envy," the market for legal scholarship values '''paradigmshak[ing]'" hypotheses over "'extremely intelligent conventional
legal scholarship.",3 A decade after Daniel Farber railed against
academic "brilliance," legal scholars everywhere are still seeking
the elusive "play of intelligence,,4 and usually missing it.s We
could tell many stories on bad scholarship,6 but that would lie
beyond the realm of reason.7
1. Daniel A. Farber, Gresham's Law of Legal Scholarship, 3 Const. Comm. 307,
310 (1986); see also id. at 308, 309 n.9 (offering Uextreme," "fanciful" article ideas to
junior professors "desperate for a topic for a tenure piece"); cf. Jim Chen, Rock 'n' Roll
Law School, 12 Const. Comm. 315, 315 (1995) (blaming the creation of "the prototypical
article on 'law and rock 'n' roll'" on the "fear that lurks in the heart of every junior professor"). See generally Kenneth Lasson, Scholarship Amok: Excesses in the Pursuit of
Truth and Tenure, 103 Harv. L. Rev. 926 (1990).
2. Jim Chen, Law as a Species of Language Acquisition, 73 Wash. U. L.Q. 1263,
1267-68 (1995).
3. Daniel A. Farber, The Case Against Brilliance, 70 Minn. L. Rev. 917, 929 n.54
(1986). As this is the appropriate place for the obligatory citation to Thomas S. Kuhn,
The Structure of Scientific Revolutions (U. of Chicago Press, 2d ed. 1970), we now offer
our burnt sacrifice to the late "God of Paradigms."
4. Daniel A. Farber, Brilliance Revisited, 72 Minn. L. Rev. 367, 381-82 n.42
(1987).
5. See Daniel A. Farber, Missing the "Play of Intelligence," 36 Wm. & Mary L.
Rev. 147 (1994).
6. Contra Daniel A. Farber and Suzanna Sherry, Telling Stories Out of School: An
Essay on Legal Narratives, 45 Stan. L. Rev. 807 (1993); Daniel A. Farber and Suzanna
Sherry, The 200,000 Cards of Dimitri Yurasov: Further Reflections on Scholarship and
427
428
CONSTITUTIONAL COMMENTARY
[Vol.14:427
The time has come for a new theory, so fanciful that it could
be accused of being "brilliant": It's not our fault. Legal change,
especially when compelled by drastic political shifts or other
similarly cataclysmic events, is the force majeure of legal scholarship, an unavoidable, overwhelming power that excuses scholarly nonperformance.8 Law as the slippery object of scholarly
desire serves also as the scapegoat for scholarly failure. For a
law professor who is pathologically predisposed to write wacky,
even bad scholarship, mootness may be the greatest of the passive virtues. Blessed indeed is the professor who, having nothing to say, abstains from giving in words evidence of the fact. 9
In law and legal scholarship as in life, timing is everything.
Whether aggressively forged in a quest for new intellectual
paradigms or more modestly crafted as part of the practice of
"normal" legal science, good legal scholarship must be timely.
Poor timing can condemn an otherwise meritorious idea
(whether defined according to its truthfulness or its brilliance)
to the dustbin of moot debates and derivative ideas. The difference between timeliness and irrelevance can be razor thin. Michael McConnell, for example, published his study of The Origins and Historical Understanding of Free Exercise of Religion lO
just in time to "cast[] doubt" on the freshly decided Employment
Division v. Smith. 1I Imagine, on the other hand, the anguish of
nineteenth century scholars who staked their careers in constitutional law on John Calhoun's theory of nullification,12 Roger
Taney's theory on the legal status of blacks/3 or Melvin Fuller's
theory of federal taxation. 14 One of us was able to rescue two
communications law articles in the wake of the Telecommunications Act of 1996; the other watched in horror as a journal re-
Truth, 46 Stan. L. Rev. 647 (1994).
7. See generally Daniel A. Farber and Suzanna Sherry, Beyond all Reason: The
Radical Assault on Truth in American Law (Oxford U. Press, 1997).
8. See generally Viterbo v. Friedlander, 120 U.S. 707, 727-28 (1887) (defining
force majeure by reference to its literal meaning in French, "superior force").
9. John F.T. Murray, Publish and Perish-By Suffocation, 27 J. Legal Educ. 566,
566 (1975) (quoting George Eliot for the following proposition: "Blessed is the man
who, having nothing to say, abstains from giving in words evidence of the fact.").
10. Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990).
11. 494 U.S. 872 (1990), discussed and cited in McConnell, 103 Harv. L. Rev. at
1420 & n.43 (cited"in note 10).
12. John C. Calhoun, A Disquisition On Government and Selections from the Dis·
course (Liberal Arts Press, 1953).
13. Dred Scott v. Sanford, 60 U.S. 393 (1856).
14. See Pollock v. Farmers' Loan and Trust Company, 158 U.S. 601 (1895).
1997]
BUTCF....
429
viewed his paper on the political "success" of Yugoslav constitutionalism, even as the country dissolved.
Let it never be said, though, that Constitutional Commentary fails to give bad ideas their due. Even Dred Scotl S has received a sober second look in these pages. 16 And lest anyone
forget, only two short years ago this journal undertook the
thankless task of documenting the most stupid aspects of the
Constitution.17 Constitutional Commentary hereby announces a
contest in honor of scholarship that never was. We invite readers to submit, anonymously or notoriously, the abstracts of articles rendered moot, obsolete, and probably unpublishable (even
by the modest standards of American law reviews) by scholarly
force majeure. Why should your obsolete ideas languish in obscurity, when they can become prize-winning submissions and
bask in the infamy that only publication in Constitutional Commentary can confer. Please submit all entries by July 1, 1998.
Jim Chen* and David Schultz**
15. See Dred Scott v. Sanford, 60 U.S. 393 (1856).
16. See Christopher L. Eisgruber, Dred Again: Originalism's Forgotten Past, 10
Const. Comm. 37 (1993).
17. See Constitutional Stupidities: A Symposium, 12 Const. Comm. 139 (1995).
* Associate Professor of Law, University of Minnesota Law School.
** Assistant Professor of Political Science, University of Wisconsin, River Fal1s.