No one owes it to me to take me on or to engage in discussion. But after a certain point, the silence becomes deafening.
This past week I did a blog post entitled Many Judges Are Bad at Textual Interpretation. What Do We Do About It? The first half consists of my critique of textual interpretation offered in a recent appellate court opinion; in the rest, I suggest that judges and litigators could do with some serious training in textual interpretation, as an alternative to pseudoscholarship and misbegotten conventional wisdom.
I thought it was an interesting and provocative post, so I ran it by Jason Steed, aka @5thCircAppeals, doyen of appellate lawyers on Twitter. After I published it, he tweeted a link to his followers. Silence. So a couple of days later I reached out to his group myself, using their hashtag:
— Ken Adams (@AdamsDrafting) August 7, 2020
And Jason retweeted that. Still nothing.
Long ago, during the bathrobe-blogging years, I learned not to expect anything from online readers. I write stuff that interests me. If anyone else finds it useful, that’s a bonus.
All the same, when I write something that’s seriously provocative and no one touches it, I find that puzzling. That was my reaction to having #appellatetwitter ignore last week’s post. After all, generally they display a fair amount of swagger online.
But then I recalled that their response is hardly exceptional. My 2015 law review article on represents and warrants (here) is, if I say so myself, a seriously original work of scholarship that reduces the conventional wisdom to a smoking ruin. The same for goes my 2019 law review article on efforts provisions (here). The response in each case? Chirping crickets.
In fact, it’s exceedingly rare for anyone to take me on in the marketplace of ideas or explore my ideas in any detail. I can think of four reasons for that.
First, if you really want to critique my work, you’ll have some work to do. Probably way less work than the work I put in to formulate the analysis you wish to critique, but still. You’d have to become intimately familiar with my arguments, then you’d have to marshal your own, then you’d have to state your case. Few people can be bothered with that sort of thing or have the aptitude for it.
Second, when it comes to the guidelines where, after gnawing on the subject for many years, I describe serious shortcomings in a traditional usage and recommend a clear alternative, I’m right. That’s not as bumptious as it sounds. The traditional usages are preposterous; the clearer alternatives are straightforward; and I’ve been working at this stuff long enough, with input from countless readers and seminar participants, that over the years I’ve been able to refine my analysis of a given issue. There’s not much to be gained in arguing with someone who’s right. (More broadly, yes, I’ve been plenty wrong and have had to fix plenty mistakes and misjudgments; see my response to John Juba’s comment.)
Third, if you critique my work, I’ll respond, and I’ll do my best to be polite and constructive about it. But people might not be interested in that sort of exchange. (If I think you’re taking liberties, I might respond in kind, but that’s a different matter.)
But towering over those factors is a fourth: Those who are invested in a dysfunctional system have nothing to gain from challenging it and are temperamentally ill-equipped to do so . If you’re a cog—big or small—in the transactional copy-and-paste machine, it’s unlikely you’ll be interested in scrutinizing it too closely. If you’re part of a herd, you’ll likely be willing to join them in going over the cliff.
This attitude might be a function of your knowing which side your bread is buttered. It might also, or instead, be a function of cognitive dissonance: you’re so invested in the dysfunction that you can’t countenance it being wrong, so you instinctively reject the alternative.
That’s why I no longer look to rehabilitate dysfunction. For example, I stopped consulting (with occasional exceptions) after it became clear that half my clients were so wedded to the dysfunction that they were unable to use the new contract I had prepared for them.
Now I prepare my guidelines for whoever is in a position to find them helpful, and I’m doing my best to contribute to building a contracts infrastructure that offers an alternative to the waste and futility of the current system.
Hey, “take me on” leads naturally to … Take on Me!