Introduction
As legal scholars, we have tremendous freedom to choose what we study and how we study it, to engage with the relationship between how law is and what legal arrangements might help move us toward a better world. In a conventional law review article, it is in the final section that a scholar is expected to explain how their analysis in the preceding twenty thousand words can and should bear on how we move forward in the world.
Traditionally, this is Part IV of the article, one which follows an explanation of an important problem or object of study, and a description, analysis, and/or framework to help understand it. Part IV gives answers. This “policy” or “implications” section may be a way to analyze doctrine in the future, or perhaps a proposal for new legislative, administrative, or judicial rules, or better lawyering strategies. The article may label these ideas “solutions,” “prescriptions,” a “proposal,” or a “discussion of policy arguments.”
It can be the most exciting part of the article, “where we, as legal scholars, can pursue our wildest, most idealistic dreams for society.”
Often, a Part IV will not focus on one solution but rather will name a series of “implications” for how to think about law and the world. Or it may simply gesture at future directions for research—after all, workshop participants said that the first draft was really two articles. But, just as often, Part IV will be both brief and specific, telling the reader: Here are possible ways out of the problem I have explained.
We do this because legal scholarship is normative.
In addition to studying and analyzing the rules, institutions, and ideas that structure our legal and political worlds, we have the disciplinary posture of providing explanations of how the law works in the context of broader theories of justice and how the law should work if it is to further a just society. Flowing from this normative posture is an expectation of suggesting solutions to the problems unearthed by those analyses, of connecting the “is” to the “ought.” This is an exciting privilege in our scholarly corner of the world. Whereas in many disciplines the norm is to stick to explaining the findings of a methodologically appropriate inquiry, in ours we can propose solutions.
Scholarly methods certainly differ,
but this default Part IV expectation holds true across most, if not all, of them.
And people read about those solutions and even implement them! Despite reports of their irrelevance, law review articles are read both within and outside of the academy; they are cited as sources of expertise; and they are used, albeit modestly, to craft legal and political strategies and policies.
An ending prescription can be a worthwhile thing. But to some legal scholars, this opportunity can feel like a burden. Having engaged in analysis that pushes forward our collective thinking about law, to encounter a de facto requirement to further fix the problems, and to do so in just a few short pages, presents difficulties along multiple dimensions. To begin with, it takes more work. A responsible Part IV will not just throw out the first suggestions that come to mind. Instead, it will engage with other pieces of scholarship and advocacy that think about whatever those solutions may be, and it will come to a nuanced conclusion about the limits of any suggestions, whether in particular cases or more broadly. To be done right, it will often require seeking out new sources of knowledge, bodies of research, or collaborators that were not necessary to write the first parts of the article. But this is not the heart of the problem. Part IVs are not extra credit; it is our job, after all, to do the work required to produce our scholarship as best we can.
This Piece labels the Part IV expectation in legal scholarship a problem because, too often, the de facto requirement of a fix-it Part IV with feasible solutions leads to suggested prescriptions that do not meet the scale or distinctiveness of the problems at stake. This can cause both intellectual and material harms. First, the Part IV problem might take the form of narrowing. Here, the problem is that the article might offer a set of proposals that are too modest or weak, or that merely tweak existing realities in a way that does not respond to the complex and structural phenomena that the article itself might be more interested in. Often, the narrowing happens out of a sense that a proposed solution must be feasible, defined in a range of ways that, as this Piece suggests below, can inhibit expansive thinking.
Second, the Part IV problem might take the related form of displacing: Here, the problem is that the closing emphasis on a set of law or policy prescriptions can paradoxically displace the very intellectual and normative impact of the article itself, by implying that the most important takeaway of a piece of scholarship is the prescription at the end rather than the innovative thinking that precedes it—thinking that is often the central contribution of the piece, the thing that moves us forward.
Third, the methodology and analysis that precedes Part IV might itself constrain the writer’s sense of what is possible within a prescription that follows from the earlier parts of the article. The norms of academic legal writing suggest that one’s prescriptions should follow from the preceding text.
Fair enough. But focusing too cleanly on crafting an answer using the text that precedes can in some cases preempt more creative thinking or sources of solutions that the scholar might otherwise be drawn to. Here, the pressure to land on concrete, feasible policy solutions has outsized, if unintentional, influence, limiting the creativity and clarity of analysis. Sometimes the most impactful new legal and political arrangements may be best generated outside the confines of a given methodology, outside a given set of current doctrinal or political or institutional realities, and outside the solitary space of a law professor’s office.
The Part IV problem is more pronounced than ever in our current moment. We are surrounded by acute legal and political crises and steadily growing economic, social, and ecological catastrophes that inevitably interact with, and are facilitated by, legal and political structures.
Legal scholarship has contributed to the ways in which law and policy reinforce these real-world problems.
And legal scholarship can also be a tool to unmask these realities and help us imagine, and create, a more just world.
This is also a moment of fierce legal upheaval, with longstanding legal norms pushed aside, the rule of law itself up for grabs, fascism on the rise, and people on all sides of the political spectrum questioning the continued existence of our legal institutions, whether that be the Department of Education or a local police department, the Supreme Court or a town criminal court.
Here, too, legal scholarship has both paved the way for our current crises and provided a forum for capacious thinking about how we might resolve them, sometimes in new and unexpected ways.
The Part IV problem vexes these urgent and noble possibilities for legal scholarship by diluting the impact and force of our broader critiques and reimaginings.
By the same token, the current moment seems to raise existential questions for those legal scholars who see their work primarily in terms of its policy or prescriptive contributions—those scholars, in other words, whose primary focus is on writing Part IVs that avoid the problems named above. What, as Professor Elizabeth Popp Berman asked in a recent intervention,
does it even mean to study law and policy and propose alternatives in a world in which the very notions of the rule of law, democratic institutions, or good faith policy design and implementation are seemingly evaporating in real time before our eyes? Decoupling to some degree the critical and reimagining functions of scholarship from the technical prescriptive function—in part by freeing ourselves from the constraint of the conventional Part IV—can be helpful here. Berman herself suggests that one response to the current reality could be to “zoom out,” to look at history and deeper critiques of power, political economy, ideology, and the like, to challenge current realities, and to help imagine alternative futures.
Alternatively, as Professor Luke Herrine suggests, perhaps the current crisis invites us to deploy our technical, legal, and policy expertise and wonkery in an entirely different mode, focused not on what is near-term practicable but instead on what might make more transformative visions actually workable, concrete, and actionable.
Coming to a more nuanced approach to our respective Part IVs in legal scholarship is thus an important question of craft and methodology, especially in this moment. We have opened up some substantive and methodological questions about legal scholarship in previous work, especially in articles that we have co-authored with others on how scholars might think about “law and political economy” (LPE) and “movement law,” respectively, as approaches to meeting the current crises.
In these works, we have wondered alongside our co-authors what it could mean to reorient legal scholarship with the explicit goals of pursuing liberation, antisubordination, and opening up sources of countervailing power in and through legal institutions.
We have emphasized the material harms that can flow from analyses that claim neutrality but reinscribe existing pathologies of inequality and market power, or that aspire to use the law to promote democracy but leave out the collective imaginings of those most directly impacted by antidemocracy and subordination.
Further, we have articulated our respective hopes that legal scholars can play a modest role in unmaking stagnant legal configurations and remaking our world in new and better ways. Our motivation for this Piece flows from this optimism about the potential of legal scholarship to be a part of material change.
At the same time, the Part IV problem is not just an issue for scholars who subscribe to the LPE or movement law frameworks. Every law review article is presumably about an important aspect of the law, broadly defined. And most legal scholars feel the pull of the default expectation of ending with concrete takeaways for the future, of moving from the “is” to the “ought.”
More than that, they want to be a part of changing the law for the good, however they define it.
And so this Piece is for all legal scholars, and particularly for junior scholars or those without full-time jobs in the academy, who may feel a particularly acute pressure to conform to the default form of law review articles,
particularly knowing that student law review editors will themselves be expecting this form.
In short, this Piece is a love letter to legal scholarship in the form of a critique.
We highlight the dangers of the Part IV norm in legal scholarship in an effort to heighten legal scholars’ self-reflexivity as we write, discuss, and evaluate the scholarship of other writers.
We speak, too, to law review editors who choose which pieces to publish and how to edit them, and all readers of legal scholarship as they decide how to digest, assess, and use what they read. Part I of this Piece articulates the value of normative legal scholarship, including the value of prescriptive interventions that help improve legal doctrine, procedure, and policy. Part II lays out the Part IV problem, first by fleshing out the dangers of focusing on feasibility, defined in a range of problematic ways, when evaluating normative takeaways in legal scholarship. Second, we articulate three versions of how Part IVs can be problematic, each of which flows from a de facto requirement that law review articles provide prescriptive takeaways and that those takeaways be feasible: the narrowingproblem, the displacing problem, and the constraining problem. Part III suggests some questions and approaches that legal scholars might take to try to avoid the Part IV problem(s), including rethinking our notion of feasibility, as well as reconsidering whether an article needs a Part IV at all.
This Piece has no Part IV. Rather, we hope that our short conclusion will serve as an invitation for our fellow legal thinkers, broadly defined, to shift our expectations about legal scholarship and expand the range of interventions we hope to see in our writing and the world. This is not an argument against Part IVs but rather a call to eliminate the default expectation of one. We want to give ourselves permission to employ more variegated ends to articles, ends that better fit the overarching purpose and momentum of a particular piece of writing. Liberating ourselves from the straitjacket of the Part IV requirement means expanding the possible species of our interventions. It is not giving up on prescriptive work but rather fitting our writing to match with our wildest, most idealistic dreams, and the interventions, big and small, feasible and fanciful, that can help us get there.
I. Legal Scholarship and Normativity: In Praise of Part IVs
Legal scholarship can and should be normative—it can describe, analyze, and critique how the law is or was and how the law should be. This is, indeed, what most legal scholarship does—it translates its empirical or theoretical insights into recommendations for how to move forward to a better place—whether that is a better way of litigating cases, lawyering, teaching, writing legislation, structuring institutions, organizing people toward social change, or engaging in legal thinking or scholarship itself. We believe that a normative orientation is a good thing. In this belief we are indebted to Professor Robin West’s seminal articulation of the value of “impassioned normativity” in legal scholarship—scholarship that aims to push us toward what justice requires and therefore invokes both explicit concepts of justice and suggestions for how to move toward those ideals.
There has been at least a century of vibrant debate over this aspect of the legal scholar’s role and whether it makes sense for legal scholars to take a normative stance on the legal phenomena that they describe.
Critics have argued that law reviews are obscure,
unhelpful,
vapid (“Air Law,” in the words of Professor Pierre Schlag),
or, more dangerously, that the “scholarly compulsion to point the way to reform” leads to milquetoast ideas that keep us enmeshed in a self-referential world of legalism.
For critics and fans alike, many think of prescription as the central feature that distinguishes legal scholarship from other forms of scholarly analysis.
We are less interested in wading into these debates than in agreeing with West’s arguments that normative scholarship is important and appropriate for legal scholars. It is also needed more than ever. When done well, and with an explicit theory of change or vision of justice, legal scholarship can impact the world in important ways. Indeed, legal scholars are often situated within or close to elite realms of power, including state power, so that their scholarly prescriptions influence legal and political outcomes directly and tangibly.
Legal scholars are also often well positioned to analyze legal problems and assess potential ways to work toward justice, in the sense that legal scholars—often but certainly not always professors
—have a particular set of resources, skills, and sometimes on-the-ground experience working in the law, each of which gives us the ability and privilege of being able to move the ball forward on a search for justice or liberation or efficiency or whatever north star a scholar might hold dear.
Our own view is that the thinking behind the output of law reviews is often done best with others, in community with people who have grounded understandings of how the law operates—whether those people are social movement actors, lawyers and policymakers, or directly impacted people in their individual capacities.
And when that collaborative thinking happens, there is all the more reason to pursue scholarly writing that both names its normative commitments and draws conclusions for how to think about, reform, and/or abolish particular laws and legal structures.
Whether normative legal scholarship is a good thing is separate, though, from the question of the form of law review articles—of if, when, and how legal scholars articulate the prescriptive conclusions that flow from their normative approaches to the study of law. In writing this Piece, we revisited some of the pieces of legal scholarship in our own personal canons of inspiration—the ones that made us want to be legal scholars—with an eye toward their prescriptive conclusions. We thought of Professor Lucie White’s Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G, better known simply as Mrs. G’s Shoes, a beautiful elucidation of power and voice in court known for its critique of subordination along lines of race and gender in poor people’s courts and hearing rooms.
In Mrs. G’s Shoes, White provides a short final “normative” part, in which, in just seven pages, she names the limits of legal change, suggests small moves that lawyers and judges can make to promote antisubordination, and calls for a broader reconstructive project that looks beyond formal legal equality.
We revisited Professor Gerald Frug’s The City as a Legal Concept, noting that Frug’s Part IV is dedicated to exposing the paucity of legal thought around city power and yet contains and concludes with concrete first steps to give cities “real power”: the creation of city banks and city insurance companies.
And we noted that some of the articles we revisit most frequently are themselves full-throated normative calls for change in legal thought and methodology, whether it is Professor Mari Matsuda’s Looking to the Bottom,
which lays out both a critical methodology and a framework for the substantive legal issue of reparations, or Professors Lani Guinier and Gerald Torres’s idea of demosprudence in Changing the Wind, a conceptualization of how movements engage with the law that Guinier and Torres explain via in-depth case studies.
In both Matsuda’s and Guinier and Torres’s articles, the final section is a synthesis of how to move forward rather than a newly constructed set of solutions.
As these examples from our own personal canons illustrate, normativity can take on different forms, and can, but need not always, entail fixes to the problem, or even first steps toward fixing the problem. It can, as with White’s and Frug’s pieces, suggest an array of ways forward that include reconstructive or radical reformulations alongside useful tweaks. It can avoid prescription altogether. Or it can frame entire pieces as prescription: As with Matsuda’s and Guinier and Torres’s works, the entire article can essentially be a Part IV. There are many ways to fit the goal of a piece of scholarship with its normative takeaways.
These examples, of course, reflect our own scholarly interests and dispositions, which lean politically left and crit. They also reflect our specific positionality and education, as three of the five scholars named above were our law school professors. We are confident that there are a similar range of seminally inspiring works in other areas of legal thinking and from other vantage points, though we do not intend to catalogue them here. Indeed, because legal methodology takes on so many forms, normative takeaways vary tremendously. Whether using law and anthropology, law and economics, positivist legal analysis, critical race theory, or feminist jurisprudence, there are important normative lessons that can follow from the heart of the article, and they likely look very different than the above examples. From each of these disciplinary approaches, there can be important intellectual and material payoffs.
Moreover, a terrific law review article need not move mountains or create new frameworks. Projects that take on a narrow set of legal issues or point out a small move forward can be as important as articles that take on entire fields of study or practice. To state the obvious, what is narrow in the grand scheme of things can still have a material impact on people’s lives—it can be a tool for litigation, the basis of a policy or governance proposal, or a spark for a brainstorm at a community meeting.
In a 1990 takedown of legal scholarship, one professor believed that he was effectively lampooning the absurdity of legal scholarship when he referenced the title of an obscure law review article Why Study Pacific Salmon Law?
The next line followed, “Why, indeed.”
And yet, when one actually reads the piece on salmon law by environmental law scholar Michael Blumm, the opening sentence gives a strong answer that speaks for itself: “Salmon and steelhead trout are to the water resource what the miner’s canary is to air quality in a mine: they are effective barometers of the adequacy of the water resource to support a host of consumptive and recreational uses.”
When legal scholars and commentators make fun of obscure topics with material consequences for people, and the narrow prescriptions that may follow, these critics betray not the insignificance of legal scholarship but rather their own shallowness.
As one of us knows well, part of why scholars with PhDs in disciplines related to law may want to become a law professor, rather than join a department in their PhD’s discipline, is because of the Part IV opportunity: How wonderful that in a world marred by injustice of all kinds, part of one’s job can be to think about how to make ideas of justice and observations about legal phenomena translate into ideas for making the world more just (or equal, or liberatory, or efficient, depending on one’s normative orientation). As the other one of us has experienced, for public interest lawyers, the chance at taking a normative view of the law is often part of the pull toward academia as well. To be able to step away from the day-to-day work of litigation, transactions, policy work, government lawyering, or movement lawyering and take a bird’s-eye view of legal structures outside of the limits of those structures is not just a breath of fresh air; it can provide hope that change is possible where previously there was only inertia or doom. The Part IV opportunity is a joy and a privilege.
This does not mean, however, that the best practice for writing a law review article is always to end with a short prescriptive section with a list of solutions detailing how to move forward in an immediately actionable way. And it certainly does not mean that the prescriptions in that list must be feasible, a particularly damaging way of thinking about normativity that we discuss in the next Part. For, rather than an opportunity, feasible solutions have become a de facto requirement. Student editors look for them. Questions at workshops focus on them. And this is not always ideal. In fact, it can be harmful.
II. The Part IV Problem
We refer to “Part IV” as the moment at the end of a law review article when a scholar reaches for solutions, implications, or fixes to the problems or issues unearthed up to that point. It may end up a Part III, V, or VI, depending on the organization of the article—but it is the final section, put forth in its tone as the concrete takeaway for the reader. We have explained above that having a normative takeaway can be a useful and important thing. But it is not always a useful and important thing, especially when the focus is on what is feasible over what is best. This Part critiques the concept of feasibility as it relates to the prescriptive section of law review articles and articulates three possible problems produced by a default requirement of a concrete, pithy, and feasible Part IV: the narrowing problem, the displacement problem, and the constraining problem. Taken together, these problems produce a body of legal scholarship that is less bold, less rigorous, and less transformational than it otherwise could be.
This Part of the Piece has fewer citations. We do not think it is productive to name individual articles that fall into the Part IV traps that we mention, although we should say that we have fallen into some of them ourselves in past work. We are not taking aim at law professors as writers, but at legal academia as an institution. This is about how we read, workshop, discuss, and cite the writing of legal scholars. It is about how we evaluate scholarship for hiring, promotion, and tenure decisions. It is about the law review submission process, and how student law review editors select articles for publication. These actions and norms inevitably influence what we write about and how we write it. The fault is with the expectation of a particular form, and not with any particular writer, editor, or reader.
A. On Feasibility
Law review conventions encourage us to set aside our wildest dreams, or even just our most innovative ideas, in favor of what is feasible. Just think of how faculty workshops become taken up by questions about the specifics and feasibility of the suggestions in Part IV, precisely because they feel tangible and possible. And yet, turn to Parts I, II, or III, and you might read of a capacious set of interlocking and seemingly intractable problems. In a format in which we have the freedom to propose a new way out, why focus on what is legally or politically feasible in the moment, especially this moment? Why not aim higher?
We dwell here on the idea of feasibility because law review editors seem to dwell on it, too, when deciding which articles to publish. A recently leaked set of memos by student editors of a leading law review confirms that their assessment rubric requires answering the question, “Are the [article’s] proposed solutions, policy recommendations, and prescriptive advice reasonably feasible?”
Indeed, this is the only prompt given to these editors when evaluating prescriptions; they are to assess whether the Part IV is feasible, full stop, nothing more.
Feasibility can mean a host of different things. As students of evidence know well, feasibility is a capacious concept, ranging from a literal question of whether something is “physically, technologically, or economically possible” to a narrower definition that limits feasibility to “that which is capable of being utilized successfully.”
The notion of feasibility in the law of environmental regulation contains a similar range of understandings, falling somewhere between “safe” and “efficient.”
In regulatory policy debates, a focus on feasibility means conducting studies to determine how to “reduc[e] an activity’s risks as far as possible consistent with the long-term flourishing of the activity”—or, how to regulate an industry without shutting down that industry.
A feasible reform will not crash the system. Law review editors and legal scholars seem to use a similarly wide spectrum in assessing feasibility, from literally possible to likely to happen successfully and without widespread disarray.
Following this wide understanding of feasibility, a de facto requirement of feasible prescriptions in law review articles boils down to two elements: a suggested prescription should be (1) likely to happen (i.e., legally or politically feasible sometime soon) and (2) likely to have the effect that the author claims it will (i.e., likely to succeed on the author’s terms). Both of these aspects of feasibility limit Part IV prescriptions in harmful ways.
The first part of the feasibility mandate—a focus on what is likely to happen in the short term—restricts the scope of our normative visions down to ideas that are conventionally understood to be possible within our current political and legal climates, removing ideas and concepts that might be possible sometime in the future under different conditions. A student editor might be correct in labelling these ideas infeasible in this limited sense, but that would not mean that they are not possible, or that thinking about them cannot help us push through to new and better understandings of our current conditions. Indeed, imagining and crafting solutions that respond to the realities of the problems diagnosed—whether or not immediately “feasible” in the conventional sense—is an important way in which scholarship and free inquiry push conversations forward. Scholarship can even make currently infeasible ideas more likely to be actionable, moving them from “off the wall” to “on the wall” of what is possible.
While there is a place and role for proposals tailored to current political constraints, there is also a place for questioning those constraints and pushing against them. A legal academic would be asking a germane question about an article in a workshop or job talk if they were to push a writer to confront unstated hurdles in moving a doctrine, law, or concept into mainstream discourse, but although those hurdles should be stated, they should not rigidly suppress bolder, more inspiring, or more compelling alternatives.
The second component of the feasibility mandate emphasizes a different dimension: the technical efficacy and impact of the proposal. This is the question that we often engage in a workshop or presentation: “Would this actually work?” Here too, there is a place for this question and for scholarship that takes current legal, institutional, or sociological constraints seriously. A central concern here is that a seemingly too-bold proposal might be so radical as to disrupt, perhaps fatally, existing legal and institutional structures. This is a common challenge not just in legal scholarship but in policy debates more broadly. (Think how often proposals for, say, an expanded safety net are met with a chorus of challenges asking, “But how would we pay for it?”) From this understanding of feasibility—a fear of crashing the system—the implication is that genuinely serious scholarship that takes technical realities seriously should suggest a modest and technically-sound solution. Indeed, the modesty of the solution is itself an emblem of sophistication. Yet the irony is that if we take feasibility to mean “efficacy in solving the problem described,” it may well be that genuine efficacy requires more structural change to existing laws and institutions—and that such structural changes may in their own way be more efficient, achieving more widespread positive impact.
B. Three Aspects of the Part IV Problem
In this section we explore three facets of the Part IV problem. Although they can and do overlap, each aspect of the Part IV problem stems from the expectation that a law review article contain a final section with prescriptive takeaways, and, moreover, that those prescriptions be feasible in both senses of the word discussed above.
- The Narrowing Problem. — The default Part IV expectation can narrow a writer’s vision as they conclude their work, leading to weak solutions that do not meet the scale of the problem and often legitimize the status quo. By weak we do not mean small: A small move in doctrine, policy, or pedagogy can improve a life, or be a single step on the way to something better. What we do mean is that in an effort to be both pithy and feasible, legal scholars often propose solutions that appear too modest or relatively unimaginative, even as the other parts of the article may be informative, original, and revealing of deeper dynamics.
The danger of a weak or reformist solution is that it will dampen the potential of the analytical moves made in the article, legitimize the underlying conditions that enabled the problem in the first place, and impede our imaginations for bigger change.
A weak set of solutions becomes amplified when it is taken up by lawyers and policymakers, makes its way onto a law school syllabus, or becomes the thing that the article is used or cited for without context.
The menu-like nature of many Part IVs can compound this narrowing. When you divide a Part IV up into two sections, for example, one that lists immediately actionable steps and one that is more capacious, it is often but not always the first list that gets cited and remembered.
Frug’s The City as a Legal Concept, which was described in the previous Part, is a counterexample here: This seminal article in the field of local government law is not known for its suggestion that we create city banks and city insurance companies, although perhaps it has been used toward those ends. Instead, it is known for its reconceptualization of cities and its optimism about local power in the face of structural inequality and deficits of democracy.
Moreover, the concrete suggestions of city banks and city insurance companies are actionable but not reformist: creating them would build local power rather than legitimize the domination of states in the name of the wealthy and privileged.
Looking beyond feasibility, another way to think about the narrowing problem is in the language of “reformist reforms” and “non-reformist reforms.”
The idea of a “non-reformist reform,” initially generated by democratic socialist André Gorz, is used today by many left social movements and organizers to refer to the idea of a reform that moves us toward a long-term radical horizon even as it may make a small intervention in the world.
A non-reformist reform might tweak legal doctrines and statutes and work within existing governance structures. Whether a reform is non-reformist depends not on which legal tools it uses but on its relationship to the possibility of broader change and its stance toward state power or, in the parlance of socialists, the hegemony of the ruling class. In contrast, a reform may be reformist if it capitulates to existing power structures, increases the resources available to harmful institutions, or exacerbates power imbalances.
This idea can be transported, to a degree, to the Part IV problem.
Not all legal scholars write in solidarity with left social movements, but many legal scholars aim their Part IVs at improving material conditions for people who are subject to subordination, either individually or as a group.
And for many of us, part of our analysis involves recognizing the background legal structures and institutions that facilitate and maintain the subordination and domination that motivate us to write in the first place. When legal scholars writing in this vein suggest reforms or legal solutions to social problems simply because they are the most politically or legally possible in the short term, we risk legitimizing the background forces that sustain the problems we care about, that relegate the most promising solutions to absurd or utopian impracticalities. If we describe our article’s takeaways flatly and without attention to power, to structure, and to the co-constitutive nature of law and inequality, then we reinscribe the legalist framing that makes these problems seem intractable.
- The Displacement Problem. — The de facto requirement of a pithy Part IV can also distract from the power of a piece of scholarship, displacing the emphasis on the inquiry or analysis with an emphasis on a solution. Often, the greatest value of a piece of legal scholarship is not its prescription, but what comes before: a rich description of the law at work, through any number of methodologies; a new vocabulary through which to understand law and society; or an illumination of connections between areas of law or modes of thought that sparks new ways of thinking and acting. When such brilliance concludes not with questions, vocabularies, or frameworks for future thinking, but rather with a bullet-point list of concrete to-dos stated in a confident, scholarly tone, a reader might naturally focus on these tangible, and sometimes less intellectually challenging, conclusions, rather than on the deep questioning that the rest of the article demanded of them. The list of policy takeaways, when framed as a feasible conclusion to the article’s analysis, become a distracting set of actionable items that cloud the new forms of thinking and action—praxis—that the reader might otherwise leave the piece with.
One pronounced version of this displacement problem is that it can undermine the productivity of critique—of critical forms of scholarship that open up contradictions, shake up our assumptions, or unsettle given understandings of the law and the world.
Such critical legal scholarship may advance a better world, however defined, but not by proposing specific solutions in the moment. Indeed, one of the ideas behind critical legal scholarship in its multiple forms is that there are certain problems that law cannot solve, or at least cannot solve in its current configurations.
Critical race theorists and others push us to recognize this tension between critique and reform, between the emancipatory potential of legalism and its repressive tendencies.
For example, Professor Angela Harris has described the deep tension between “radical critique and racial emancipation”—between a commitment to uncovering deep structural problems and a faith that deep critique can help reveal a path toward liberation.
Harris’s conclusion is that the tension is productive: “The task is to live in the tension itself . . . .”
Living in this tension does not mean setting aside calls for change or action; to the contrary, it can push us toward forms of praxis that open up new ways of living together or seeking change.
But to live in such tension is inherently to be uncomfortable. Neat takeaways, in contrast, bring us comfort.
We want to improve the law, our communities, our worlds. And so it is naturally tempting to grasp for feasible prescriptions when finishing an article or when reading an article and then describing its value to others. The prescriptive section of an article is also a natural place to pick up debate and discussion, especially in faculty workshops and job talks, giving us all something concrete to grasp onto. But some writers are so good at making their prescriptions sound actionable that they dilute the significant insights and deep critiques within the rest of their article.
- The Constraining Problem. — The third problem occurs when legal scholars are constrained by their own methodologies and internal analyses as they arrive at the end of their articles and get ready to craft prescriptions. The problem here is that sources of solutions can and often are different from sources of challenges, and to look for solutions internal to the logic of these structures is to limit our imaginations.
Here, again, caveats do not fix the problem: When a scholar looks internally to the legal tools and doctrines within the article, drawn in by the expectation that they be the one to provide actionable and feasible solutions, they imply to the world that those legal doctrines and tools are the only way forward. Rather than a capacious analysis narrowing down to a list of actionable items (what this Piece calls the narrowing problem above), here the methodological and epistemological approaches in Parts I through III constrain the possibilities for the solutions that follow.
In some ways, this is a problem of fit: A particular methodology might be useful to generate a descriptive analysis or framework but not to shift toward prescription. Legal scholars using a variety of disciplines have identified similar pathologies or tendencies to force a solution where it does not belong. Some scholars have critiqued empirical legal scholarship that moves to normative solutions following empirical findings without defending the leap from one to the other,
often by using amorphous normative reasoning following a rigorous empirical methodology.
When an article has used quantitative methods to bring forth concrete descriptive analyses, for example, it is tempting to solve the problem with similarly quantitative reasoning; Professor Joshua Fischman critiques this as “conflat[ing] the measurable with the good, [and] justifying policy proposals on the basis of the measurable objects.”
Similarly, qualitative sociolegal analysis can too cleanly lead to policy solutions internal to existing legal systems, thus reinforcing the status quo.
The answer that flows from one’s normative outlook cannot always be given in the same terms as the descriptive analysis. Nor can it always be given with the same tone of scholarly confidence that a descriptive claim might elicit.
It might require a pivot, a new way of thinking about things, or a different set of background conditions. When we reach too easily for solutions, we risk circling back into a form of legalism that reinscribes the central structures of the issues at hand.
This is not a problem limited to law review articles. In a 2011 essay entitled Why Last Chapters Disappoint, Professor David Greenberg laments something similar when it comes to books that deal with social problems: “Practically every example . . . , no matter how shrewd or rich its survey of the question at hand, finishes with an obligatory prescription that is utopian, banal, unhelpful or out of tune with the rest of the book.”
Greenberg focuses on the banality—pedestrian solutions that he believes could be found in a magazine and do not need a full book to defend.
Channeling essayist H.L. Mencken, Greenberg argues that there may be something uniquely American about the hubris of assuming that an intellectual grasp on an issue means that there is always an accompanying solution.
A similar hubris may sometimes infect the law review article’s norm of a Part IV, especially when the scholar reaches back to the article’s own internal logic to craft its solution. This is particularly damaging because, unlike a book for a general audience about a social problem, a law review article is aimed at a specialized audience that is relatively close to the article’s suggested changes.
Unpacking this scholarly hubris means recognizing that sometimes the same expert or legal scholar who describes or analyzes a problem is not going to be the source of the best solution. The solution may require different collaborators than the first three parts of the article did, different or collective sources of knowledge, and new methods of interpreting that knowledge. When we look to just ourselves, or even just our colleagues—traditional legal experts—as the sources of collective imagining of how law could be structured, we dampen the epistemological possibilities through which we might otherwise find ways to move forward.
Indeed, not all legal problems can be solved with the law, or at least not with our dominant forms of state legality.
Sometimes it is collective imagining—“freedom dreams”—that can help us imagine new or as yet nonexistent configurations through which we can thrive together.
This requires asking “what might be” before moving from the “is” to the “ought.”
Sometimes the solutions that flow from such collective inquiries are not fully formed. They may be prefigurative—they seem to be outside the law, but they enact ways of thinking, relating, or acting that are in fact living out alternative understandings of how the law could operate.
They may still be ill-formed or unknown, taking the shape of questions and possibilities, shadows and light.
It is possible, of course, to engage in pathbreaking description and stick the landing with a prescriptive part. Some articles do actually have a good fit between method and solution. And for those that don’t, they can pivot in effective and rigorous ways that do not circle back to the limiting frames that precede. To take one recent example of such a pivot, in the 2022 article, The Fat Prisoners’ Dilemma, Professor Rabia Belt catalogues the ways in which the state “produce[s] fat incarcerated people” by producing fatness, criminalizing fatness, and then creating conditions of incarceration that create and sustain fatness.
Belt demonstrates how all these things interact with each other, and she spends a substantial part of the article showing how existing laws and doctrines, including the Americans with Disabilities Act, the Prison Litigation Reform Act, and various state tort claims, do not allow for claims of disability stemming from fatness.
The Fat Prisoners’ Dilemma does have a final normative takeaway—but it is not a set of doctrinal or legislative fixes to the problems above.
Instead, Belt suggests a framework for thinking about disability more broadly, one that combines an understanding of the intersectional nature of the condition with the slow violence of state action and austerity that produces and maintains fatness.
From this, Belt is able to move beyond doctrinal fixes—indeed, she states clearly that her suggested framework for thinking about disability requires looking beyond doctrine and litigation, and toward broader structural issues like the distribution of resources under the welfare state, food justice, and mass incarceration.
This is unabashedly normative. But it does not attempt to fit a solution into the legal problems the article has unearthed.
Pivots as deft as these require rigor, time, and additional discussion of the normative subject at hand. They cannot be written in two quick weeks in anticipation for law review submission season, or as a three-page throwaway at the end of an article. And they are not always appropriate for every law review article’s subject, methodology, and focus—a pivot can be a distraction, too. And so it can also be generative to end a law review article without any prescriptions at all, simply by asking questions, gesturing toward new ways of thinking, or saving one’s “Part IV,” instead, for another article. The discussion that follows suggests some possible moves and questions for a scholar to consider when approaching the structure of and prescriptions within their law review articles.
III. The Part IV Possibilities: Beyond Feasibility
There are infinite ways to end a law review article effectively. The law review form should not require prescriptions so much as welcome them when they make sense in a particular case. This Part suggests some alternative approaches to crafting the concluding sections of legal scholarship. First, we might broaden our conception of what feasibility means and requires. Second, we might look beyond the concept of feasibility altogether. Third, we should be more self-conscious in tailoring our concluding sections to the kinds of interventions we hope to make; to that end, this Part offers some possible prompts for authors to consider.
One way to open up space for a wider array of concluding sections in legal scholarship is to take a broader view of feasibility. As noted above, feasibility often operates as a de facto requirement that law review articles offer solutions that are (1) likely to happen in that they are legally or politically feasible in the near term under current conditions and (2) likely to have the effects the author claims they will have.
But one might imagine this feasibility mandate quite differently, taking an approach to feasibility that prioritizes the second dimension over the first. Indeed, if our scholarship reveals deeper structural and systemic failures of existing legal institutions or social arrangements, it might well be that a truly efficacious set of solutions, one that addresses the root problems, requires interventions that are effective but not plausible under current legal conditions. These solutions might still be precisely the kind of technical, in-the-weeds institutional design proposals at which many legal scholars excel. Here, the task would not be to seek near-term political viability but rather to build legal frameworks that are in fact fit for purpose to address the deeper problems identified in the scholar’s critique. These proposals may not be acted on soon, but they might help build a stable of ideas and proposals whose time has not yet come.
A second way of opening up space for more capacious endings to legal scholarship is to look beyond the feasibility mandate altogether. Articles might offer empirical or historical analysis, or normative or conceptual frameworks, without precise prescriptions, laying groundwork on which others can build. As suggested above, the approach here would be for an article to recognize that the task of building actionable alternatives might well require different thinkers, doers, and leaders, and a different mode of analysis than what the initial article offers.
Perhaps the task of developing solutions requires more participatory, interactive, and collaborative conversations with impacted communities, movements, policymakers, and practitioners. Rather than expecting the author to offer solutions in the mode of the all-knowing expert, scholarship in this vein would lean into contributions that are critical, visionary, or that open up important questions and then move the task of solution-building to a different venue. Concretely, this could take different forms: perhaps other interventions written by different voices (scholars, practitioners, and impacted people alike) that respond to or build on the critiques offered in the initial article, or more interactive workshops and convenings that move the task of solution-building out of the academy and into more direct dialogue with civil society actors. Put differently, sometimes the takeaway is in other parts of being a scholar and citizen: teaching, public discussion, service, governance, lawyering, organizing, and activism.
This Piece closes by suggesting some questions that a scholar might ask themself as they write a law review article and approach its ending. This Piece has argued that the Part IV problem stems from a mismatch between the goals and strengths of an article and the concluding solutions offered. To overcome this problem, an author might simply be more self-conscious about their approach, enabling them to tailor a Part IV in ways that fit with the article itself. That might mean a particular approach to providing solutions, or it might mean deliberate resistance to the pull to provide solutions, leaving such work for future follow-up by the author or others in the field or on the ground. An author might ask themself:
How do I envision my article impacting the conversation? Every scholarly contribution has a theory of change, even if it is implicit.
We imagine our scholarship will advance current thinking in some form. This Piece suggests authors be honest about their motivations and goals for the article. Some articles might in fact be motivated by a desire to offer specific solutions to a problem. Other articles might have very different motivations. It might be the author aims to offer a normative account or to push a particular normative vision closer to reality. It might be that the article is primarily meant to be critical and deconstructive. Or empirical and descriptive. Or visionary and imaginative of another future. Each of these goals is different and implies different kinds of closing sections.
Does my Part IV fit or flow from the sections that precede it? Here, a scholar should consider what kind of Part IV—if they have a Part IV at all!—would be best suited to accompany the prior sections of the article in light of the author’s goals for the article. If the author indeed seeks to provide specific actionable solutions, those should flow from the analysis offered and match the analysis’s scale and ambition. If a methodological shift is needed to arrive at prescriptions, then it should be as rigorous as the methodology of the rest of the article. Or perhaps the best fit is to suggest points of departure for future conversations that could pick up the problem-solving baton in ways that incorporate the author’s primary points, but from other perspectives, methods, or collective conversations. The hope would be that by being clear about one’s intervention and fitting form to function, authors avoid giving short shrift to their own big ideas and their implications.
If I do intend to offer feasible prescriptions, what is my understanding of feasibility? For those articles that do seek to offer prescriptions, authors might ask themselves what kind of feasibility they are aiming for. Some prescriptions are concrete and actionable under current political conditions. Other prescriptions might be focused more on how one might operationalize a big alternative vision for an area of law under very different, not-currently-in-place political conditions. Authors can bring their expertise to bear on concrete and specific proposals but need not be on the hook for answering for the vagaries of the current political or policymaking environment. Other variations are possible here, too. Perhaps the author intends to provide prescriptions that are not as feasible or comprehensive but are illustrative of a particular vision or approach. An author can embrace the multiple meanings of feasibility and accept or reject them transparently.
Should this article even have a prescription section at all? Here, the author might consider whether the article would be more powerful without prescriptions in the first place. Perhaps the punchline of the article should be simply to let the descriptive, normative, critical, or imaginative contribution speak for itself. Perhaps the work of prescription-designing might be better accomplished through different kinds of collaboration with other voices and other methods beyond those used in the article. This does not mean that the article cuts to black out of nowhere. Instead, the author can ask themselves what inspiration, if any, they might offer to others who might want to brainstorm future prescriptions and directions for change.
These prompts are not comprehensive, but this Piece offers them to generate a more capacious set of approaches to the Part IV problem. For many legal scholars, their analyses and prescriptions may already feel well-aligned and comfortable. But for those who see the challenge of offering feasible prescriptions as in tension with their intended contributions and approaches, the hope is that this Piece offers some affirmation of what has perhaps been nagging you, and, more importantly, alternative ways of approaching your Part IVs.
Conclusion
We began to conceive of this Piece nearly a decade ago when we were untenured scholars worried about how our work would be received and used by a broader audience of scholars, editors, and impacted communities on the ground. Since that time, we have seen legal and political upheaval all around us,
sometimes in ways that have inspired us, and sometimes in ways that have made us cower. As we write this conclusion in 2026, commentators from a range of political backgrounds have declared an end to the rule of law, and, whether or not the rule of law is dead, it is undeniable that many of our long-standing legal and political institutions are being actively transformed in unrecognizable ways.
There is too much work ahead—and the depths of the crises we face are too great—for us to be content with conventional approaches to policy prescriptions in our scholarship. Now is not the time to limit our thinking to only those policy prescriptions that we think fit in conventional legal forms, let alone the conventional law review format. We need greater inquiry, analysis, critique, and imagination than ever. Legal scholarship provides a wholly unique form of combining these modes of writing in ways that are flexible and porous to a wide range of methodologies, influences, and collaborations. By looking beyond the Part IV problem, fellow legal thinkers can generate insights and critiques that more readily have the kinds of impact needed, particularly in this moment of crisis.