Tech Refactored

S2E43 - Communicating Legal Ideas with Brian Frye

June 03, 2022 Nebraska Governance and Technology Center Season 2 Episode 43
Tech Refactored
S2E43 - Communicating Legal Ideas with Brian Frye
Show Notes Transcript

Brian L. Frye joins us on the podcast to discuss, among many things, law professorship, legal scholarship, and the need for making nuanced academic material more accessible and understandable for the everyday person. Gus and Brian also explore the idea of what it looks like when conceptual art and legal scholarship overlap.

Brian L. Frye is the Spears-Gilbert Professor of Law at the University of Kentucky College of Law, as well as a filmmaker, and artist.

Disclaimer: This transcript is auto-generated and has not been thoroughly reviewed for completeness or accuracy.

[00:00:00] Gus Herwitz: This is Tech Refactored. I'm your host, Gus Herwitz, the Menard Director of the Nebraska Governance and Technology Center at the University of Nebraska. Today we're joined by Brian Frye. Brian is the Spears Gilbert Professor of Law at the University of Kentucky College of Law, and he's absolutely one of the most interesting and creative scholars I know.

He describes his own work as concept art, and it challenges us and it challenges others to think about the purpose of scholarship and to question how we communicate our ideas. And that's our topic today, how we communicate our ideas. Ryan, welcome to Tech Refactor. 

[00:00:56] Brian Frye: Thanks, Gus. It's great to be here. I'm glad to be on, [00:01:00] on your show and to talk about legal scholarships, one of my, one of my favorite subjects and my favorite artistic medium.

[00:01:09] Gus Herwitz: It's- and most people don't think of legal scholarship or scholarship as a artistic medium. I guess that that's not entirely, uh, wrong. There are art scholars certainly, but, uh, most law professors and, and actually I wanna start there. You are a law professor. How do you think about what a law professor is and what we do?

[00:01:28] Brian Frye: Yeah, that's I think, a deceptively deep question. On one level, what we do is, You know, work in a professional school, training people to be. To be lawyers on another level, what we do is produce legal scholarship in the pursuit of an academic enterprise. I think in some respects it's a little unclear exactly what that [00:02:00] academic enterprise is.

Right. Are we describing what the law is? Are we reflecting on what the law ought to be? Are we participating in changing the law? Some combination of, of all three, and, you know, what is our real obligation in that respect? I, I think that. It's an open question that, you know, people engage with different legal scholars, different people in and outside of the legal Academy engage with and different ways, think about in different ways and conceptualize their own sort of project.

In, in, in different ways. And I guess like I personally have reflected on that a lot myself and thought about what, if anything I have to offer in, in that respect and sort of settled on, uh, kind of my own scholarly, quasi scholarly project in sort [00:03:00] of light of thinking about what's the point of doing any of this in the first.

[00:03:05] Gus Herwitz: So that, it's a fascinating observation for, for many academics really, there isn't that much uncertainty about what it is that they're doing. If you're a, a biologist or, uh, uh, a physicist or even a philosopher, there are defined questions that you, as a community of scholars, Trying to answer with a defined methodology, and you, you know what the goal is.

Let, let's make transistors smaller. Let's find a new chemical that lets us do this or that. Let's find a, a new answer to the question. What does, what's the meaning of life? With legal scholarship and, and other, uh, social science fields. Certainly we don't really have that defined set of questions or methodologies that define what is that we're doing.

So I, I wonder, uh, with your own work, did you come to these questions and kind of start thinking about, what, what am I [00:04:00] doing here once you were already a legal academic, or did you enter the academy? Kind of wondering what, what's the point of all of this? What are we trying to. 

[00:04:09] Brian Frye: Yeah, so that, that's a, I think a really multi-layered and interesting question. And I would start by sort of just observing that one of the things I really like about legal scholarship as a genre is that something becomes a legal scholarship because you call it a legal scholarship. There's a kind of precautionary element to it. It's anything can be a legal scholarship if, if you want it to be.

But ironically, most of the people who participate in doing legal scholarship are very conservative about their use of the genre as a literary or artistic form. And in fact, in most cases, I think people don't think of themselves as in fact engaging in the practice of a [00:05:00] literary or artistic enterprise when they do legal scholarship, even though in fact they are.

Just doing it in a highly ritualized, very conventional sort of way I guess. I came to the legal academy very obliquely. I started being interested in legal scholarship, frankly, before I went to law school and while I was in law school, I was reading a lot of legal scholarship and thinking about the law in kind of theoretical, conceptual terms, and I just assumed that that was normal for law students to do.

Um, I was later informed. I was mistaken, but nevertheless, Right. Uh, so I, you know, I, I wrote a lot on my, and I was, I was interested in, uh, which was pretty wide ranging. And I kind of didn't worry too much about whether what I was doing looked [00:06:00] like legal scholarship in the conventional sense or not.

Although I think, you know, I started sort of trying to at least you to the most kind of fundamental conventions of legal scholarship. More or less, right? I mean, like the first article that I published, not the first guy I wrote, The first or first of all I published was sort of written in a hard boiled detective novel style, which struck me as like the obvious approach to the subject matter of the article, which was in a sense, a kind of true crime story around, uh, the a second Amendment case from, from 1939.

um, but in retrospect was a, an unusual choice, right? Mm-hmm. to write it in that voice. Uh, it didn't even occur to me at the time that there was anything unusual about it, but the interesting thing was it kind of resonated with readers, I think, in a way that was different to, and maybe richer than it would have, and if I had approached it in a more conventional format, uh, and I continued to kind of do unusual.

[00:07:00] I guess in retrospect, sort of things in relation to legal scholarships. You know, I wrote a, uh, another paper later, uh, sort of nominally about charity law, but really thinking about how people conceptualize their, their relationship to art making and art. Production and what that means in a kind of socio historical context.

Uh, which again, I, I, I frequently had the experience of, you know, people to whom I presented my scholarship, asking me how it was that what I was presenting them was in fact a work of legal scholarship as opposed to something else that they weren't quite sure what it was, which I always found a little puzzling.

Cause I was like, well, these are just ideas that. Exploring and why isn't that enough? Mm-hmm. for the legal scholarship. I think the real kind of interesting moment came, uh, when I, when I got tenure right, and I asked liberating moment for many [00:08:00] people it was, it was, it was for me, conceptually liberating in, in a lot of ways, in part because I realized that there wasn't really, um, there really wasn't any rules that I.

To, to satisfy. So, you know what I, I asked one of my senior colleagues, I was like, Well, now that I'm tenured, right? Sort of what are the expectations of me as a now promoted scholar, you know, going forward, academic career. And they, they look almost puzzled. Like I was asking them some kind of weird question and they were like, well, I guess you should publish more and you should develop a national profile.

And I was like, Hold my beer. I can do that. . Right? I, I think the reaction was, we didn't mean it quite in that way, you know, but, you know, National profile's, national profile. I kind of just saw that as an opportunity to think about what my angle was and mm-hmm. , what I always tell my students is like, look, you know, you're not just an automaton, right?

Everyone's got their own sort of, [00:09:00] Value and their own sort of set of capacities that they bring to the table. And, you know, you should think about what those are and, and maximize 'em. Like be entrepreneurial about what your career is gonna look like. And so I said to myself, you know, what do I have that is unusual among law professors?

Well, I have a mfa. I went to art school, right? I mean, I did art for a long time. I should take advantage of that and think about what that means. To me as a legal scholar and how that could inform and perhaps enrich my, uh, my scholarly production as, as a legal scholar. And it kind of dovetailed nicely with a project I've been thinking about for a long time.

Right. So, you know, while I was at Sullivan and Crowell, uh, working as a securities lawyer, it occurred to that awful like, Of unregistered securities. Um, and I was very fascinated by the kind of parallel between the two and how they seemed to kind of sync up with each [00:10:00] other in a really nice, kind of abstract, conceptual way.

The problem was that this didn't really speak to anyone. Right. When I tried to explain it to kind of people in the law world, they looked me like, What the hell are you talking about? You know, like, Trying to explain conceptual art to a securities lawyer is, is quite a feat. I tell you the typical reaction is why would anyone wanna buy something like that?

Right? And you know, similarly for people from the art world, it just didn't compute, right? Cause they thought about what they were doing as participating in the sale of artworks as opposed to a sort of investment proposition in. In works of authorship and, uh, and, and you know, so I struggled for a long time with the idea of how to kind of explain these ideas in the form of a legal scholarship that would resonate with people and help them understand why I thought the problem was interesting.

And it wasn't until that moment, right after I got in tenure and I started kinda thinking, reflecting more broadly on what I wanted to do as a legal scholar, [00:11:00] that I realized that the mistake I'd made was thinking that I. Expand or explode the genre. Like the real question for me was how to activate legal scholarship.

And I realized what legal scholarship needed was conceptual art, right? So rather than just write an article that described what I saw as being a problem and put it in kind of conventional legal scholarship terms, I realized that what I really wanted to do was create conceptual art in the medium of legal scholar.

Right. So rather than just read a Law Law of Review article, I decided to do a work of conceptual art that would not just explain, but demonstrate the proposition that I wanted people to explore in the article. And I found it worked really, really well, right? Because it made it kind of real and. Tangible and concrete for people in a way that an abstract description wouldn't have.

So rather than just describe the problem, I created the problem, right? And I went ahead and like sent a no action letter request to the cc, which [00:12:00] was in fact the sort of way of germinating or activating. The work of, of art in the first place. And sort of that, that dialogue between the conceptual artwork and the sort of framing of the conceptual artwork in the form of a legal scholarship, I think made it much more effective.

And when I saw how well that worked, I realized that I could do anything I. Right. Anything could be a legal scholarship if I wanted it to be a legal scholarship. And the fun part of it was thinking about legal scholarship as a literary genre or as an artistic medium, and what that kind of liberates you to do when you engage in that fashion.

You know, and I, and I will say that, you know, there are certain scholars out there who I think, Done a lot of similar kinds of things and I really did follow their lead. Like in particular, I was really inspired by the work Ofta Murray at, uh, Loyola [00:13:00] la, right? She really is kind rethought the medium of legal scholarship as a literary genre.

You know, she's a poet and, and a writer, and I think that her, you know, her ability to kinda step back from legal scholarship and see it as a kinda a meta medium. Was really exciting for me. Likewise, Pure Schloss article. The LA Review article was really helpful for me in kinda thinking about legal scholarship as a literary genre as opposed to just a kind, neutral medium for the communication of, of ideas, you know, other people too.

But those are the two who are most sort of influential on me and kinda rethinking what I wanted to do as, as a legal academic.

[00:13:46] Gus Herwitz: So the- so many questions, uh, so many directions that we could go. I, I, I think the standard, uh, legal article, law review article or approach to legal scholarship is [00:14:00] a, uh, 15 to 30,000 word paper with lots of footnotes. Typically 300 to 450 footnotes. About half of the typical law review article page is filled with footnotes. That mixes a, a, a group of, uh, doctrinal or just a, a black letter, straightforward "what does this statute mean?" "What does this legal question analysis within some normative or policy prescription?"

And here's my proposed solution to this issue. And that's what most law professors spend most of their lives trying to write one of every year, basically. Um, I guess I, I shouldn't ask multiple questions at once, but I'm going to ask, uh, two questions at once. Should more people be writing conceptual a more conceptually, uh, uh, interesting, uh, pieces of scholarship.

I, I think a scholar once, uh, uh, said something along the lines of, [00:15:00] uh, the medium is the message. Um, so are we con uh, uh, constraining. Our scholarship and our impact on the world by sticking to, uh, this, uh, uh, type of format. So that, that's one question. Should, uh, more people be writing, uh, in taking this approach their, their scholarship.

And then the, the other question is, um, Does your work need to be approached in this way? Or could you have, uh, uh, asked and considered your question about, uh, uh, conceptual art at the SEC as, uh, unregistered securities? Um, could you have done that in a more traditional doctrinal form with the same effect, do you think?

[00:15:45] Brian Frye: Yeah, well I'll take the second question first cuz I actually think it's a nice setup for, for the other one and, and I think the answer is yes, I could've done it that way, but I don't think it would've been very effective or very interesting. [00:16:00] And in fact, I tried to for a long time, right? This was one of many ideas that kind of rattled around in my head for a long time.

I thought about how to write it. I thought about how to approach it. I thought about what I wanted the argument to look like in kind of more conventional legal scholarship terms, and it just didn't write, you know, it didn't come together in a way that was satisfying to me, and it didn't feel like what I was producing was worthy.

Of the idea. And so I just didn't do it. I didn't finish it because I was like, This doesn't, There's something missing, right? It needs something else. There's sort of, it needs an activation, it needs a special sauce, it needs something different to make it really click and really function in the way that I want it to.

And so, again, like for me, the, the, the realization that a legal scholarship can look like anything that you want it to look like was really. Was key for me cuz I realized that it took. Thinking of the medium as a literary genre, [00:17:00] as an artistic medium to make the article really resonate in a way where people would understand what the point was, right?

They would understand why I was saying this and see it working, as opposed to it just being a description of something that was purely abstract and therefore wouldn't resonate with people at all and, and I think this really gets to what I think is a fun. Kind of issue or kind of the reality of legal scholarship is that the overwhelming majority of legal scholarship is not written to be.

Right. And in fact, no one, no one does read a lot of it. Uh, even the people who are interested in what it says don't typically, I think, sit down and read a larva article from beginning to end. They look at it as a way of kind of conveniently packaging particular observations and ideas in ways that are kind of abstractable from whatever format it is in which they're presented.

And I think that's the reason why, which you. When people write alarm [00:18:00] articles, they typically have, you know, like very extensive sort of throat clearing at the beginning, telling people where they can look in the article for different elements of whatever it is that they produce. They put in a table of contents that tells you if you're interested in this part, go to here.

If you're interested in that part, go to there. Right. And so they're, they're kind of a tool that you can use as spare parts to build something else out of, and they aren't meant to be used as a kind of, Storytelling medium or way of kinda digesting a kinda bigger picture idea for better, for worse. And, you know, and it's, and it's not that I think there's anything necessarily wrong with that.

I do think it's kind of limiting. Um, and I also think that it, it, it tends to get boring. For a lot of people, not just to read, but but to produce and it becomes kind of a chore. And, and I just don't think it's necessarily a very effective way of communicating, uh, ideas to the extent that that's really what, what you care about.

And frankly, I, I kind of feel like [00:19:00] for a lot of law professors, they would increase their impact. And have more fun doing what it is that they do. If they could write in a kind of a more approachable, uh, more, uh, relaxed kind of format, like most LA articles frankly could easily be expressed in an open.

The overwhelming majority of articles have a page or two maybe of actual original content and insight, which could very productively be distilled into a short essay of some kind. Um, but you know, we have institutional incentives not, not to do that. Um, and you know, the reality is most people who go into legal academia, um, come from a particular kind of mindset and have a particular.

A very conservative approach to what it is that they do. They're people who are good at playing by rules, right? They've always been good in school, right? They listen to what the teacher says and they do the things the teacher wants, and they [00:20:00] do it in the most conventional way possible. Cause they wanna get an a.

In, in every class. And they bring that mindset, I think, to their, to their jobs. And I think we train people, the incentives are very strong to play by the rules, to do things the way everyone else does it, to not rock the boat, to not be too weird, Right? To like do the footnotes and to do the placement and cetera, et cetera, cetera.

Right? And the more you internalize that, the easier it is to keep on. On doing it. And, you know, I think for better or for worse, um, you know, I, I was not well socialized as lawyer or, or law professor. And so when I realized that no one was actually gonna make me do any of those things, I just stopped doing them and stopped caring and instead kind of saw it as an opportunity to kind of reflect on.

The process and on the institutions and on the, the sort of the, the academy at large. [00:21:00] Um, and sort of how, you know, how we think about what it is that, that we think we're doing. Like I, a friend of mine is like, it, it's interesting to me because I think a lot of people are not happy. About what I'm doing, cuz they see it as like breaking rules that shouldn't be broken.

And also, um, I I, I think that it's frustrating to a lot of people to see somebody do what they perceive as mocking the institution. Mm-hmm. , um, or the sort of conventional norm. Of legal scholarship. I mean, for me it's kind of a love letter. I really, I actually love legal scholarship and I love the process and I love the ideas.

And for me, it's sort of like this is the best way that I've found to express that admiration and, um, And, and appreciation. But I think for a lot of people, it's hard for them to see it that way. Cause it, it comes off to them as being kinda mocking or sarcastic. Um, it's not [00:22:00] intended like that, but I, I, I can understand why it might be perceived in that way.

[00:22:05] Gus Herwitz: Yeah, it's- it's uh, a really rich set of points there. Um, and I absolutely can see how someone could view it as this is mocking or this. This is an offense to my understanding of this thing that I'm doing, that I, I think, is the defining essential characteristic of my identity as a, a researcher and as a scholar.

And I, I, I'd say two things to that. Um, first, you're exactly right. It is so empowering and so important to sit down and just ask yourself. Why am I doing this? Why am I doing it in this way? Why is this the form that I'm using to explore and communicate my ideas? And if you don't have an answer to that, that that tells you something and that becomes a research question that becomes something for you to try to better understand.

And at, at some level, I thi this is the nature of all criticism. Um, criticism is, uh, [00:23:00] it's the essence of scholarship. It's the essence of what we do. And it it's the essence. Exploration and understanding and criticism and mockery are arguably flip sides of the, the same coin. They, they both are necessary to advance, uh, how we, uh, understand what we're doing and, uh, get better at what we're doing.

We are speaking with, uh, Brian Frye from the University of Kentucky. Uh, we will be back in a couple of minutes to our couple moments to continue our discussion. 

[00:23:32] Announcer: Momentum. It's building at the University of Nebraska Lincoln with game changing work in precision agriculture, nanoscience and digital humanities. We're unlocking mysteries in brain research, solving the impossible with remote surgery using robots, and we're creating bold futures with world leading research in early childhood education. We don't slow down and we are not letting up. We are Nebraska.

 [00:24:00]  Gus Herwitz: We are back with Brian Fry, a University of Kentucky law professor, talking about his scholarship and scholarship and how we as academics communicate our ideas.

Um, and I, I. There's, there's so many directions I want to go with this, uh, discussion. Um, Brian, I, I have to start. I think, um, we're, we're, uh, podcasting. We're, we're having a discussion that we're going to, we're recording it. We're going to releases a podcast. This is the, uh, governance and technology centers, uh, podcast.

And I, I've come to think of this as an important aspect of my own research, talking to thinkers and scholars, learning from them, asking them questions, sharing it with the world. You also have a absolutely wonderful, uh, podcast, the, uh, Ipsa Dixit podcast over five or six or even 700 episodes that you've recorded along with, uh, uh, collaborators, uh, over the last couple of years.

I, Is that part of your scholarly [00:25:00] endeavor? Is that something that you just do for fun? How, how do you think about, uh, podcasting and its relationship to your identity and, uh, role as a scholar? 

[00:25:11] Brian Frye: Yeah, I, I, it's a lot of different things. So, I mean, I, I started podcasting legal scholarship during my sabbatical, the first sabbatical I ever got, mainly cuz I was bored and didn't know what to do with myself.

Uh, and I was really interested in hearing from other people about their ideas about legal scholarship and kinda learning in a more kinda holistic way. About what legal scholars were doing. Uh, I was also really interested in. Promoting ideas and people who I found interesting who I didn't think were getting as much attention, uh, as I thought that they deserved.

Um, you know, there's, what I see as kind of a problem with the legal profession and legal scholarship in [00:26:00] particular is that it's. Profoundly hierarchical. And that hierarchy is really baked in very deeply to the profession and the opportunities that are available to people. And I think a lot of that hierarchy is not justified.

Mm-hmm. , But is perpetuated nonetheless. Right. So it's sort of like if you get lucky early on, And you know, you get the right people paying attention to you, you get all the opportunities and it's really easy for people to get lost and for good work to not get the attention it deserved. So, you know, one thing I tried to do was look for things that I thought were interesting, but that.

People in general didn't have structural reasons to pay attention to. Um, so, you know, I interviewed a lot of people at like, kind of less fancy schools or, you know, people who were not yet, uh, on the tenure track market or, you know, people who were lawyers who were producing legal scholarship but [00:27:00] weren't actually part of legal academy law students who are doing work that I thought was cool and interesting and exciting that I wanted to engage with as well.

Um, So, you know, that for me was a big part of the project. Uh, as I did it, I, I realized that I was sort of learning, well doing, um, and that sort of the, the project of podcasting about legal scholarship was also a way of modeling what I saw as productive engagement with, uh, with legal scholarship and with ideas.

The legal academy in ways that were, you know, easier to consume for people who might not otherwise sit down and actually read a large article, which is most people, right? I mean, most large articles don't end up getting read and they're not, like I said earlier, they're not really designed to be read. And what I found was that like sitting down and talking about the ideas for half an hour with someone was oftentimes a much more efficient way, uh, for them to communicate what was really [00:28:00] valuable about the scholarship than necessarily the.

Formal legal scholarship format, uh, you know, in addition and kinda in, in sync with what you were just saying. Uh, I, I did and I still do see a lot of the podcasting enterprises being a research enterprise for in particular, you know, in the last year or so, I've gotten really interested in NFTs web three, blockchain, crypto, etcetera, from a kind of, Sociological ethnic graphic almost kind of standpoint.

And so I've done a series of interviews with people in that space and, and that was for me, primarily about information gathering and trying to understand who was participating in this space, why they were participating it, and how they understood what it was that. We're doing. So, you know, that was very much a kind of, uh, information gathering exercise.

Uh, in retrospect, I think a lot of what I was doing with the [00:29:00] podcast in general was much the same. I just didn't necessarily think of it in those terms while. While I was doing it, but it did kind of inform my bigger picture reflections on the sort of nature of the scholarly enterprise and the aspects of it that we prefer not to recognize because they are so uncomfortable.

So like a a, a observation slash joke. I like to make is that the peculiar thing about law professors is that we know how to solve market failures in every market except the markets we directly control, um, . So it's amazing to me the way that legal scholars complain incessantly about the way that. Kind of the legal academy is structured in the way it values things and yet never seem to do anything to change them, even when those changes would be incredibly easy.

Right. So something as simple as legal scholarship, You know, in a lot of ways, I think actually the market for legal scholarship is. Is [00:30:00] okay, Right. Is at least better than the market for a scholarship and other disciplines where, you know, at least it's open access. Pretty much everything gets published. Uh, there's, you know, lots of availability, uh, you know, and it more or less, you know, despite all its inefficiencies, uh, ultimately, you know, produces information in ways that are accessible and available to people.

But at the same time, it would be so easy to make it so much better, and yet we. We clinged these inefficiencies because they reflect a kind of deeper set, I think, of arguably kind of pathological, um, like hierarchical commitments that we have that I think people are reluctant to acknowledge and even more reluctant to abandon, at least in so far as those hierarchies are ultimately at least potentially beneficial to.

To themselves. Um, and I, you know, I, I think that that's a conversation that a lot of people are trying to [00:31:00] engage in. I've tried to push it myself. I think a lot of people find it very uncomfortable and don't,

I think, Uh, 

[00:31:13] Gus Herwitz: so, uh, I wonder if you were to have a conversation with a, uh, newer, younger scholar, someone, uh, who, who has a research agenda, they, they know what it is, the questions that they want to be, uh, uh, engaged with that they wanna be talking about. Um, what advice would you give. About how to communicate their ideas.

[00:31:36] Brian Frye: Yeah, I, I mean, it's a tough question because, I mean, I think the sensible advice is to play by the rules, right? I mean, there's really no upside to not following the rules because if you want to kind of be successful, that's the way to get there. And the rules are very clear. They're pretty easy to follow.

And if you kind. [00:32:00] Put your, put your nose to the grindstone, it's not that hard to satisfy them. Right? And so I think, you know, I think it's unsurprising to me that the response of most people in the legal academy is to play by the rules and follow the rules and do things the way you're expected. And ultimately it works out pretty well.

Um, I personally find that kind of boring and not very interesting. And, you know, the reality is like, if, you know, if I couldn't have fun, The job and have fun. Expressing myself in legal scholarship as a medium, I just wouldn't bother doing it anymore. And there's lots of other things that, you know, you could do that you know, would offer you alternative ways of engaging.

I mean, if you want money, you could just be a lawyer. It's much more lucrative, right? If you wanna be creative, you can just be an artist, right? I mean, it's not very lucrative, but you have lots and lots of freedom. You know, I kind of had been figuring how to sort of. A path that gives me the best of, or at least as much as I can expect of, of both [00:33:00] worlds, you know?

But I mean, I, I guess my, my, my advice to like a person sort of contemplating like, you know, how do I chart my own path in the legal academy is sort of be careful what you wish for, right? Um, it may, may or may not be worth it depending on, on what you wanna achieve. Right. I mean, like as a, as a friend of mine pointed out a while ago.

She, you know, she said, Brian, people don't like being called hypocrites. And it's right. People don't like being called hypocrites. And, you know, calling people hypocrites is not always a great way to advance yourself. In a particular profession for better force. Right. I mean, like, you know, like they said, like develop a national reputation.

I mean, you could develop a national reputation a lot of different ways. I'm not sure the one I developed is, uh, necessarily the most wise, uh-

[00:33:52] Gus Herwitz: Any reputation is good reputation. That's right. 

[00:33:55] Brian Frye: As a great philosopher once said, the only thing worse than being talked about is not being talked about. [00:34:00] 

[00:34:01] Gus Herwitz: Yep. It's interesting you, uh, in, in answering the question, you started by saying, Well, if you want to be successful, uh, you should, uh, follow, follow the, the, uh, well tro path and don't shake the boat. Um, and, and implicit in there is an understanding of what success in an academic profession. It's, um, it, it's, uh, Getting promotion in tenure and moving up through the academic ranks and being recognized amongst your peers as doing whatever the form is per the performative understanding of academia.

If you're, if you're doing that, you are academic. Good. And yeah, that's success. Yeah. Um, and. I for, for many of us that might not be how we think of a success quite so much. We're, we're academics. Uh, and I'm obviously using the word we, I don't mean to necessarily include you in this, but, uh, I, I certainly include myself in this.

Um, [00:35:00] I, I care less about what my peers think about me than if I'm having an impact and I'm in, uh, asking and hopefully answering or contributing, uh, answers to. Important, challenging questions. Um, and, uh, that that's a very different understanding of success. And it, it's, it's notable even in your, uh, uh, immediate answer to the question, Well, if you wanna be successful, do this.

And how that is coded in a very certain way for how we think about success. 

[00:35:32] Brian Frye: Yeah. Yeah. No, I, I think that's right. And the real issue when it comes to legal scholarship in particular, but in some respects, kind of scholarship in general, is that if you wanna be really cynical about it, it's not created in order to be consumed, right?

Most scholarship is created for a institutional purpose. That does not necessarily require [00:36:00] the actual content of the scholarship in question to be valuable or used for anything at all. And like I said earlier, it's, it's not written to be read. It's written to kind of satisfy certain kinds of requirements to get certain things that you want in the future.

And to the extent that it's consumed as actual content, I think the overwhelming majority of law of the articles are consumed in the form of the. Right. I mean, more often than not, you can derive all of the actual content of alar review article simply by reading the abstract, right? That's sort of like the goal of most abstracts is to tell people, this is what's in the article.

If you wanna talk about this thing, you can cite my article as an example of whatever it is that you're talking about. You don't actually have to read the article. All you have to do is read. All you have to do is read the abstract. Um, I've always found that kind of interesting. Um, and, you know, and I, I have always thought of, you know, what I produce as intended [00:37:00] for actual consumption as opposed to satisfy kind of abstract criteria.

Um, you know, for better or for worse, right? I mean, like, it hasn't necessarily done me any favors in terms of. In terms of my career. But, you know, I do think it means that people, at least some people read the articles that I write, which is invaluable to me. And I, I consistently get people kind of write to me and they're kind of surprised.

They're like, Oh, you know, it's like Barbie articles are usually really boring. And I read this and it was actually really interesting, and I, I read it, I'm like, Wow, you read it, you know, , you actually read the article from beginning to end and you know, something away from it. Um, You know, for me that's what success looks like.

But, you know, I'm not sure that that's necessarily the success that everyone necessarily wants. Um, and so, you know, I think the question is really you, you gotta sit down and ask yourself what, what you're, and why you're doing it, and what goal is [00:38:00] that's, that's, mm-hmm. , that's a kind of existential question as, as it worked, you know, And it's like, it kinda just depends on what you.

[00:38:09] Gus Herwitz: And it can be uncomfortable and scary to ask. And another variation of, of the same question, I guess, and this is just very standard run of the stuff, but understanding and thinking about who's my audience? Who do I want to read this? If it's, uh, I, I want. For other people in my field to read this. Um, then that's a very different audience than, uh, I want judges to read this and take it seriously.

Or I want, uh, judges or advocates, other lawyers, uh, practicing lawyers to read this in a way where I need to anticipate every question that they might have. And that, okay, that's a traditional LAR view article perhaps versus a wider, uh, scholarly. I want many academics in lots of fields to read this, another, uh, understanding.

And I, I want, [00:39:00] uh, lay people, I want, uh, informed, interested, uh, consumers of knowledge to be able to read this. And they're, they're all important, They're all legitimate audiences. But if we don't. Think about who our audience is. Um, we don't think about why we're doing this. Uh, it, it, uh, runs the risk of taking away from the impact of our scholarship, whatever it could be.

[00:39:25] Brian Frye: Yeah. Yeah, yeah, yeah. And like I said earlier, I mean, I, I do think that the mind run of legal scholarship is not written to be read by anyone. Mm-hmm. . And you know, the safe way to do legal scholarship is to kind of. Find some conventional assumptions and add a new epi cycle to whatever those conventional assumptions are.

No one needs to read that because anyone who would be in your potential audience already knows what it's gonna say before they pick it up. Um, you know, and that's [00:40:00] fine. I mean, like, you know that there's a long scholastic tradition of, you know, debating how many angels can dance on that pin. And you know, there's nothing wrong with that.

And that's participation in a genre in its own way. And I kind of appreciate the fact that, you know, we've perfected that genre in some respects. But, you know, I do think that maybe. There's Rome, or it's time to think about the genre in a more kinda. Liberated way. And to think about it as a literary genre or as an artistic genre, rather than as, uh, as you say, a kind of clu Andes, you know, the medium is the message, right?

I mean, like, let's, let's kind of take a step back and ask, you know, if that's true, what kind of messages can we use to medium. To convey I think a lot wider range than a lot of people, uh, have conventionally have [00:41:00] conventionally realized. And you know, I just think it's an exciting moment to think about accessibility to legal scholarship, the level of interest that people have in the law and in what legal scholars think, and this kind of wide opportunity to sort of do basically anything you.

And, and I've seen this like in particular, like, you know, a lot of my scholarship recently has been focused on NFTs and web three and kinda crypto markets and so on. And what's really interesting to me is like the way that legal scholarships try to engage, or rather the way that legal scholars try to engage with.

This new marketplace and this new medium for transactions is, is as conventional as their approach to legal scholarship in the sense that, you know, they have a bunch of buckets that they feel like they understand, and when something new comes along, they look for the bucket that they can put it in.

Mm-hmm. . And if it doesn't fit in the bucket, they're like that thing's. There's something wrong with it. It [00:42:00] doesn't fit in any of our buckets. And I guess my alternative way of thinking about that is that, you know, if these new things don't fit into our buckets, what we need is new buckets. Mm-hmm. . Yep. That is, 

[00:42:13] Gus Herwitz: So I, that's.

Just critically important and we're, we're in, in many ways, a new world. And I, I, it's interesting as I say that, um, I, I am very much a believer that one of the, uh, greatest deficits in much current legal scholarship is that we've lost ideas that were long ago discovered, um, and methodologies and questions and tools that prior generations of legal, a.

Um, for various reasons, I think we're more attuned, uh, uh, to using. Um, and, uh, so, so it's interesting for me to say that we're, we're in a new world where we, we need new buckets, as you say, new forms to think about these questions. But we, we don't do ourselves any favors when we [00:43:00] say, I think it's a really, it's a real, uh, NFTs in web three.

We need to answer and think about in a traditional. 

[00:43:08] Brian Frye: Yeah, I think it's a real back to the future moment for me in a lot of ways. I mean, it's kind of ironic that legal scholarship in the past had the potential for a level of innovation and creativity that I think in many ways it's lost. Today, right?

Mm-hmm. , And that kind of came about at several different historical moments. You know, I think back to something like, you know, the Slanky and explorers, right? Mm-hmm. or the work that people like, you know, Douglas and whatnot were doing way back in the day. That was exciting. Formally innovative work that resonated precisely because of the formal innovation.

Like, you know, you could have. You could, Splunking and Explorers could have been written as a conventional large article, but it would've been very forgettable, right? Yep. The fact that it was written in the way that it was made it powerful. [00:44:00] Right. I would say the same thing about someone like, you know, Derek Bell or other CLS people in the sixties and seventies.

The work was powerful because it was formally innovative. Um, but I feel like a lot of that formal innovation was ironed out. Of legal scholarship for, for various reasons. And for me, it's exciting to think that maybe this is a moment where we could bring it back again and to start to, you know, kind of use those examples from the past as a way of envisioning what scholarship could look like in the future.

Yeah. And 

[00:44:35] Gus Herwitz: at at the same time, I, I think we're at a unique moment in American history where there is both more need and also more desire for the, the common citizen to understand what the hell is going on, um, and really have. Accessible explanations of legal ideas and concepts and what the debates are and what the issues are, [00:45:00] and when, when we paper over it with formalism in a way that makes it, uh, particularly inaccessible, even though you're right, most of it is open access.

You can download most of these articles from the internet and tried to read them. No one's going to because they're, they're impenetrable unless, uh, you are indoctrinated into that form. Um, Uh, it, it's doing both ourselves and society a, a disservice. Um, I I, uh, I have one last question that I want to, uh, ask, um, before we start to wrap things up.

And this is a, uh, somewhat, uh, uh, just an observation. Uh, in the first part of our discussion, uh, you referred consistently to a legal scholar. And, uh, uh, that's, I think an idiosyncratic way, uh, to refer, uh, to, uh, uh, scholarly output. Um, it, what, what's your thinking behind that, because I'm, I'm sure that you have some thinking behind that phrasing.

[00:45:58] Brian Frye: Yeah. I started [00:46:00] using the phrase legal scholarship as, uh, as a noun, um, or as a kind of an, an identifier. The same time that I started thinking about what I was doing. Creating conceptual art in the medium of legal scholarship. So for me, calling it a legal scholarship is kind of like calling it a painting or calling it a sculpture or calling it a work of conceptual art, right?

It's to say that it's an object that conveys meaning and taking a step back from. What is produced and thinking about it as a medium and as an object that is generated in the course of creative activity for me, helps make the medium itself not invisible anymore. Cause I think for me, the real issue.

With, with the production of legal scholarships is that most legal scholars don't think about what they're doing as expressing themselves within the [00:47:00] bounds of a particular literary format or artistic medium. They, they see the genre as invisible. Right. And I think that, you know, the, the kind of books and articles that talk about producing legal scholarship kind of take that for granted, right?

If you look at something like Eugene Volek, you know, academic legal writing, right? He explains in a very kind of straightforward way what the formal conventions of legal scholarship are without, you know, and this is this project, but he, he doesn't ask why we have those conventions. He just observes that that's what the conventions are.

And then, you know, Pier Schlog did something really similar kind of. Spent a more meta way in his article, the LAR review article, right, where he sort of lays out what the conventions are while kind of in encouraging the reader to think about those conventions as conventions as opposed to just kind of formal tools that structure the, the nature of what's what's being produced.

So I love [00:48:00] giving that article to my students. To read in my seminar class because it kind of does two things at once, right? It not only provides them with a very useful model for thinking about what it is they're expected to do when they're producing a legal scholarship, but it also provides them with a kind of meta opportunity to reflect on the fact that what they're doing is adopting literary and artistic conventions.

Otherwise would go kind of unrecognized and to think about them as conventions as opposed to things that are required or necessary or fundamental to the expression itself, cuz they're not right. All those things, all those things we do to make something look like a law review article, to make something look like a legal scholarship are, are purely, um, are, are pure.

Conventional, they're, they're purely artificial, right? They don't have to be there and they don't actually do anything to make it work more effectively necessary other than to make it look like. [00:49:00] And so, you know, that for me is sort of to talk about it. A legal scholarship for me is a way of saying what we're doing is a enterprise constrained by these formal kind of expectations, and we can.

Other means of expression and still have it fit within that format. It's, it's a legal scholarship if I say it's a legal scholarship. 

[00:49:29] Gus Herwitz: Well, Brian, uh, it's our, our time together is, uh, coming to a close. Thank you so much for joining me as a co-creator and co-author, uh, in this. Of art that we have created, uh, this, uh, episode of Tech Re Packard and thank you as always to our listeners for joining us on this episode.

I've been your host Gus Herwitz. If you want to learn more about what we're doing here at the Governance and Technology Center, or submit an idea for future episode, you can go to our [00:50:00] website at ngc.unl.edu or you can follow us on Twitter at UNL underscore ngtc. If you enjoyed the show, don't forget to leave us a rating and review wherever you listen to your podcast.

Our show is produced by Elsbeth Magilton and Lysandra Marquez, and Colin McCarthy created and recorded our theme music. This podcast is part of the Menard Governance and Technology Programming Series. Until next time, I'll be here creating. [00:51:00]