Next weekend there will be a UCLAW faculty retreat, focused mainly on scholarship. I am not a fan of faculty retreats. In my experience, they usually morph from retreats into routs.
But moved by a desire to be a good institutional citizen—a feeling to which I am unaccustomed, to be sure—I agreed to speak on a panel entitled “What is the Purpose of Legal Scholarship?”
Today I learned that there will be three rounds of topics during the panel and each panelist will have 2-3 minutes of speaking time per round. Those of you who have had the misfortune of hearing me speak will know that disaster looms. I need at least five or six minutes of preliminary throat clearing to start the engine.
But so be it.
In any case, here’s what I would have said if I have had more time.
Preliminary Throat Clearing
When I started out as a law professor I didn’t spend a lot of time thinking deep thoughts about what I was doing. I didn’t worry much about finding my scholarly voice. I was not very intentional about picking topics.
My former UIUC colleague John Nowak once told me I could get tenure by finding an interesting legal problem and offering up a plausible solution in an article with at least 300 footnotes and then repeating the process a couple times. Which turned out to be true. Probably not so much today, but while that’s a sad commentary on the state of the legal academy, it’s a story for another day.
My Orwellian Moment
Some years later, I encountered George Orwell’s essay Why I Write, and discovered that it was possible to be very intentional about the writing process.
In it, Orwell says there are four primary motives for writing, all of which seem to me to be relevant to the scholarly enterprise.
Sheer Egoism
“(i) Sheer egoism. Desire to seem clever, to be talked about, to be remembered after death . . ..”
We are all guilty of it. After all, as Professor Michael Smith observes, “Getting published in a sufficiently prestigious journal may be gratifying in its own right, and it may lead to positive attention from one’s colleagues, spouse, and friends.”1
But I think we need to be conscious of the errors to which egoism can lead. In particular, the desire to appear brilliant. Smarter than the average bear. Which leads to works like James Joyce’s Ulysses: impenetrable masses of jargon; choosing complexity over clarity; adopting tribal mores and memes so as to be accepted.
Sidebar
I earnestly commend to your attention Daniel A. Farber, The Case Against Brilliance, 70 Minn. L. Rev. 917 (1986): “There is a tendency today for high-flying theorists to scoff at those whose work stays closer to the ground. Icarus, too, was undoubtedly scornful of pedestrianism.”
Aesthetic Enthusiasm
“(ii) Aesthetic enthusiasm. Perception of beauty . . . in words and their right arrangement.”
“Craftsman-like” is a kiss of death in a tenure letter, but I think we should all aspire to a high level of craftsmanship.
An analogy suggests itself. My maternal grandfather was a carpenter. As were his three sons, but my grandfather was especially talented. He made beautifully crafted things.
I’ve never read a law review article—let alone written one—that had the beauty of my grandfather’s work. Or of a great novel.
But there is beauty to be found in the law: A legal problem elegantly solved. A well-turned phrase.
Consider my favorite example of elegant legal writing:
Joint adventurers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty. Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions.2
There is beauty in those words.
Sidebar
I commend to your attention Karl N. Llewellyn, On the Good, the True, the Beautiful, in Law, 9 Univ. Chi. L. Rev. 224 (1942): “Is it not fair to conclude, then, there can be no part of our institution of law which may not yield fresh light, if one knocks at it asking, there also, after Beauty?”
Striving for Beauty
When I was a kid, I wanted to grow up to be a science fiction writer. As I got older, I realized two things: (1) I can’t write dialogue and (2) the vast majority of science fiction writers make almost no money. But I still think of myself as a writer.
And, as Orwell observed, “even a pamphleteer or writer of textbooks will have pet words and phrases which appeal to him for non-utilitarian reasons.”
I enjoy the process of trying to find just the right word. Of trying to be clear. Turning a good phrase. Developing a flow and rhythm to the work.
A Time to Cease Striving
I find it odd that a lot of law professors don’t seem to enjoy the writing process. They struggle. They view it as a chore. They labor endlessly over a project.
Perhaps they are striving for that elusive beauty. But, per Qoheleth, “there is a time to be silent and a time to speak.”
At some point you have to stop striving.
I have a friend—no longer in the academy—who worked on the same law review article for three years. I read multiple drafts and by the end it was very good. Perhaps not beautiful, but good.
Yet, my friend couldn’t seem to cut the cord. He was an editor, not a writer. And he bailed before getting tenure.
An analogy suggests itself. My grandfather did not labor endlessly over his projects. He got them to a stage at which they were the best work he could do and then he didn’t dither over trying to make them just a little bit better. Instead, he sent them out into the world for others to enjoy.
So there’s a balance to be struck between creating a work of merit and deciding that’s it’s as good as it’s going to get. Or, as an older friend told me when I started out, “you’re going to write a lot of juvenilia. We all do. You just have to be conscious of striving for maturity.”
Historical Impulse
“(iii) Historical impulse. Desire to see things as they are, to find out true facts and store them up for the use of posterity.”
One of the topics we will take up in the faculty rout retreat is going to be “the extent to which our legal scholarship serves public or social purposes.”
I think Orwell’s reference to “true facts” and “the use of posterity” is precisely the social purpose of legal scholarship.
Truth
I know that postmodernists—including some (Most?) of the crits—view truth as contextual, relational, and socially constructed rather than purely objective or absolute.
Suffice it to say that postmodernism gives me a headache.
I agree with Dan Farber that “truth is the key to good scholarship,” not just one of “a number of equally valid goals.”3 Hence, I also agree with Arthur Leff that what legal scholars should be striving for is to reach “those occasional moments when they say, in some concise and illuminating way, something that appears to be true.”4
Whose Use?
I am a law professor. I teach in a professional school not a graduate school. My students will go out into that profession. So I firmly believe that my scholarship should be accessible and useful to them. Academic lawyers should see the law as it is and then share that insight with our profession.
My Audience
This leads to a suggestion: Have a specific audience in mind. Have specific people you want to persuade. Hopefully, not just other law professors.
These days most of what I write has an intended audience of just 12 people: the seven members of the Delaware Chancery Court and the five members of the Delaware Supreme Court.
I find corporations endlessly fascinating. These legal fictions that are the most important economic actors in the world. Unlike most areas of American law, corporate law is dominated by a single, tiny state: Delaware. Even in these days of DExit, its courts remain the most important source of corporate law. So, my goal is to think deeply about the problems that court is confronting and persuade them to see those problems the right way (i.e., my way).
Political Purpose
“(iv) Political purpose—using the word ‘political’ in the widest possible sense. Desire to push the world in a certain direction, to alter other people’s idea of the kind of society that they should strive after.”
Obviously, this is the reason and motivation most relevant to legal scholarship. As it should be.
Much of my work is explicitly political (writ broadly). I have written about the intersection of conservative thought, capitalism, and corporate law. I’ve written about the differences between conservative and progressive corporate law scholarship. I’ve written about the insights one can draw from Catholic social thought for corporate law.
Much of my work is implicitly political, as well. Unless one is merely quoting what the court said (itself a political choice), one’s analysis inevitably rests on certain normative priors. The key thing—or so it seems to me—is to be transparent about those priors. I think capitalism is superior to socialism. I think corporations are, on balance, positive social actors. I think know director primacy is superior to shareholder primacy. It would be hard to read any of my scholarship and not see those priors doing their work in the background.
Yet, I think it is worth pondering the implications. We live in an increasingly tribal society. The legal profession is increasingly tribal. Even law schools show some tribalism, despite their dominant tendency towards monoculture. Are you just writing for your tribe? Or are you trying to persuade people who reside in other tribes? Because they require different styles and choices.
This relates back to my previous point; namely, who is your audience? My scholarship got a lot better when I realized that I had a target audience and that I needed to adapt my work to reach them. I see my job as writing them a letter that they will find useful and persuasive.
Find your audience and you’ll find your voice.
Conclusion
Lastly, legal scholarship should be joyous. As Arthur Leff observed:
I concede that people who write about law also have other reasons for doing what they're doing: getting promoted, illustrating the economic rationality of the common law, turning off the fishy stares of prolific colleagues, explaining to practitioners what article 9 now is all about, illuminating the necessary incoherence of the infrastructure of the late monopoly-capitalist state so as to hasten its eventual destruction. Whatever. But isn't it also true that what we all also want is the rush that occasionally comes from doing something very well which is very hard to do at all?
Legal scholarship is what legal scholars do. Like all craftsmen, some are luckier than others. Some, I suppose, never attain the grace of doing anything particularly well. Most do sometimes; some do more frequently; none does very often. But to have crafted, on occasion, something true and truly put—whatever the devil else legal scholarship is, is from, or is for, it's the joy of that too.
Find you joy.
And have fun.
After putting the spring 2026 semester to bed, I had completed 76 semesters of law teaching (some of which were spent on sabbatical to be sure). As the fall 2026 semester begins, I have just 5 more to go before I ride off into the sunset. One of which will be a sabbatical. It's been a long but rewarding and, for the most part, joyous career.
At this stage of my career, I have little to gain but even less to lose. And probably not a lot of time left in which to write.
So I’ve abandoned any effort to be strategic about my projects. If a project isn’t fun, I’m not doing it.
Fun is the main reason I had a blog for over 20 years and currently have two Substacks. I really enjoy knocking out 1500-3000 word pieces on some topic of interest. As a hobby, it’s a lot more interesting than stamp collecting and a lot less dangerous than woodworking.
Consider my article Effecting Industrial Policy Via General Incorporation: Encouraging Privateering as Case Study, available at SSRN: https://ssrn.com/abstract=6065867. Yes, I think it makes a contribution to the literature by showing how the switch from special to general incorporation was a form of industrial policy. This is a new and, I think, useful way of understanding that switch.
But c’mon. When I was a kid I wanted to grow up to be a pirate. (I later went through a Godfather phase, but we don’t talk about that anymore.) With all due apologies to the taxpayers of California who pay my salary, I wanted to write that article mainly because I got to wallow in what had once been a career goal.
If you’re not having fun with your scholarship, you’re doing it wrong.
So here, I must disagree with Orwell. He wrote:
“Writing a book is a horrible, exhausting struggle, like a long bout of some painful illness. One would never undertake such a thing if one were not driven on by some demon whom one can neither resist or understand. For all one knows that demon is simply the same instinct that makes a baby squall for attention.”
This has not been my experience. To the contrary, my ideal day goes like this: Get up. Contemplate the meaning of life. Briefly. Put on some old cotton sweats. Go upstairs (our house is in some sense built upside down). Make a coffee on my fancy new espresso machine that’s 50% a flat white and 50% a latte. Eat a couple of egg sandwiches while reading the Wall Street Journal. More coffee. Devotions. Make another coffee and wander downstairs to my office. Feed my fish. Sit down in front of the computer and start researching or writing. Lunch. Back in front of the computer. Feed the fish. Dinner. Rinse and repeat.
That’s my idea of fun (I fully realize YMMV). And pretty soon that’ll be every day.
Michael L. Smith, Generative Ai and the Purpose of Legal Scholarship, 21 U. Mass. L. Rev. 29, 49 (2026).
Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928) (Cardozo, J.).
Daniel A. Farber, Brilliance Revisited, 72 Minn. L. Rev. 367, 379 (1987).
Arthur A. Leff, Afterword, 90 Yale L.J. 1296 (1981).