Anyone who has written a law review article is familiar with the strictures imposed by the form. Most of these, such as the need to provide citations for even obvious claims or the antiquarian devotion to small capitals, are relatively harmless, if at times mildly aggravating. But some conventions raise more substantive worries: for example, the expectation that the piece will conclude with a short section, often “Part IV,” setting out a solution or a menu of law and policy proposals that follow from the article’s descriptions and analyses.
This de facto requirement is in many ways a privilege: how lucky that we are afforded the chance to propose alternative doctrinal approaches and legal arrangements with the possibility that they will be taken up in the real world, especially given the relatively close position of many law professors to power and to the state. And yet, this de facto requirement of a prescriptive Part IV is often a source of frustration for authors and readers alike. Although expected to be short and pithy, a Part IV must also be actionable and workable, and the task of creating these solutions in a satisfactory way often requires different methods, sources of knowledge, and even participants than the traditional timeline of law review writing allows. Moreover, once written, a Part IV menu of prescriptions can distract readers from the analyses or critiques that might be the real takeaways of a piece. Faculty workshops, for instance, are frequently dominated by questions about the specifics and workability of the suggestions in the final section of an article, precisely because they feel tangible and possible. And yet, turn to Parts I, II, or III of the same piece, and you might find a capacious set of interlocking ideas or seemingly intractable problems that call into question the very concepts and structures that underly traditional approaches to legal analysis and policy.
Why should we restrict ourselves to fitting our visions for change into existing and often problematic legal frames? Why not aim higher? We think of this as The Part IV Problem: the ways in which law review conventions encourage us to conclude our writing by setting aside bold analysis, clarifying critique, and collaborative innovation in favor of what is feasible or immediately actionable. The Part IV Problem has long bothered us, but it is especially acute in our current moment, when many of our legal and political institutions are undergoing rapid and terrifying transformations under authoritarianism. In such a climate, the stakes are higher. The idea that we can chip away at problems through familiar legal and policy reforms has become less convincing, and the potential dangers of reformist or tepid prescriptions for change have widened.
The current dismantling of the administrative state by the Trump administration, for example, undermines the idea that we can address administrative law problems through conventional administrative law solutions. What does it even mean to propose a new approach to the cost-benefit analysis framework or a reform to a Clean Air Act regulation in a world where agencies are being summarily dismantled, while others are unleashed to abduct, attack, and kill without constraint in our communities? This reality demands an enhanced level of collective ambition, combined with the kind of institutional specificity and knowledge that legal scholars often bring to the table. There are concrete questions we can ask in our work and of each other. What would a new, reimagined approach to administering the safety net look like, in a world where we must build from scratch an apparatus to deliver disaster relief or food security? What administrative authorities must be dismantled altogether? What legal and political forms might be actually responsive to democratic demands and the depth of need? The answers, here, will not be found within our prior administrative law frameworks of APA procedure, Chevron deference, and the like. We must think bigger.
Or consider the legal questions raised by the President’s recent attempts to use criminal prosecutions to target his political enemies, including James Comey and Letitia James. On one view of these moves, we witnessed the rule of law evaporate; the Trump administration has eviscerated the legitimate procedural underpinnings of federal prosecution, including the requirement that there be actual evidence of guilt, and replaced them with partisanship and caprice. But a deeper analysis suggests something more nuanced, something that is both an erosion of long-held prosecutorial norms and a continuation of the evergreen use of the criminal law by those in power to perpetuate inequality and support the status quo. On this view, the prosecutions of Comey and James, not to mention of countless less privileged people resisting federal law enforcement on the streets, reveal larger truths about the function of criminal law in serving those in power and those with capital, and marginalizing those without. This raises bigger questions about, among other things, what forms of accountability or security we might create collectively to replace these institutions and practices of state violence. These are questions that abolitionist organizers and movements are and have been addressing through their own analyses and collective experimentation. In other words, these questions can be answered, but not by a law professor sitting alone in her office, and not with a conventional Part IV analysis based on the same legal and ideological assumptions that created our current system. Once again, we must think bigger.
The causes of the Part IV Problem are easy to identify: we can find them in the comfort that readers and evaluators take in concrete takeaways, in the stubborn expectations of law review editors deciding which articles to publish, and, perhaps most intensely right now, in the annual January three-week dash after grading to finish a piece in time for February law review submissions. But the responsibility ultimately lies with authors themselves, as we sharpen our analyses and craft our writing, to resist the pull of Part IV conventions in favor of critical and expansive thinking that can pave the way for broader conversations about how to move forward together, and in solidarity with those most subject to the domination of the law.
How can we do this? To begin with, overcoming the Part IV Problem requires that we expand our notion of feasibility, a concept that student law review editors often dwell on when deciding which articles to publish. We take such a desire for “feasible” prescriptions to boil down to two expectations of rigorous scholarship: first, that the suggested prescriptions are possible in the near-term under current conditions; and second, that the suggested prescriptions are likely to have the effects the author claims they will have.
Both 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—directly restricts the scope of our normative visions, removing ideas and concepts that might be possible sometime in the future under different legal and political conditions, and limiting our ability to move transformative ideas from “off the wall” to “on the wall” of what is possible. A focus on this form of feasibility also risks 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 second component of the feasibility mandate emphasizes a different dimension: “would this actually work?” 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. 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 relatively modest solution. Indeed, the modesty of the solution is its own kind of emblem of sophistication. The irony here 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 a vision of change beyond what seems currently possible.
One way, then, to open up space for a wider array of concluding sections in legal scholarship is to take a broader view of feasibility. These “feasible” solutions might still be precisely the kind of technical, in-the-weeds institutional design proposals at which many legal scholars excel. But they might also be virtually unimaginable under our current conditions. And yet, by putting them to paper, imaginations are sparked and new possibilities can follow.
We can also look beyond feasibility and prescription, removing the Part IV problem by removing the traditional Part IV itself. For the task of building actionable alternatives in response to an article’s analysis might well require participatory, interactive, and collaborative conversations with impacted communities, movements, policymakers, and practitioners. Scholarship with an eye toward these future collaborations might focus on offering critical analyses of an issue or opening up important questions, and then move the task of solution-building elsewhere. These future collaborations could take different forms: perhaps other interventions written by different voices, responding to or building on the critiques offered in the initial paper; or interactive workshops and convenings that move the collective work of solution-building out of the academy and into direct dialogue with civil society actors and directly impacted communities. Another way to say this is that sometimes the takeaway is best developed not through scholarship but through the other activities we take up as scholars and citizens: teaching, public discussion, service, governance, lawyering, organizing, activism.
***
As we head into this coming law review submission season, we conclude with some appeals to our fellow travelers within the world of law review reading, writing, and publishing.
To student law review editors, whose careful work of selection and editing we value tremendously: please do not evaluate the strength of law review articles using only traditional notions of form or feasibility. Instead, think of the impact of a law review article in your journal along multiple vectors—it need not contain a blueprint for legislation or doctrinal change that can be implemented today. It might instead be a starting point for a conversation that leads to collective action, or a spark of inspiration for future ideas that we cannot yet know. And remember that this is true for your own student writing, as well, whether it is for your law review or another forum.
To our fellow legal scholars, broadly defined (if you’re reading this, that means you): as you ready your work for law review submissions, for workshops, and for sharing with the world, be honest with yourself about your theory of change and where your goals lie, and craft your Part IV accordingly. If you indeed seek to provide specific actionable solutions, those should flow from the analysis offered, and they should match its 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. This will often require seeking out new sources of knowledge, new bodies of research, or new collaborators that were not necessary to write the first parts 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 your primary points, but from other perspectives, methods, or collective conversations. By being clear about one’s intervention and fitting form to function, we can try to avoid giving short shrift to our own big ideas and their implications. In many cases, this might mean not having a prescription section at all. Perhaps the punchline of the paper should be simply to let the descriptive, normative, critical, or imaginative contribution speak for itself. This does not mean that the article cuts to black out of nowhere. Instead, we can ask what inspiration, if any, we might offer to others who might want to brainstorm future prescriptions and directions for change.
As legal scholars we also evaluate the writing of our peers, whether in our own heads, in casual conversations, in feedback to authors at conferences, or in high-stakes hiring and promotion decisions. Here, too, we have a responsibility to think more critically and explicitly about how we evaluate legal scholarship—and to make more room for scholarship that expands the aperture in unconventional ways. We can question fairly the methodological approaches to a Part IV without resorting to easy critiques about whether a solution is possible tomorrow. And we can lift up the value of rigorous analysis that calls into question our current legal and political arrangements, that pushes us toward a horizon in which new understandings and new legal structures will emerge. By doing so—by acknowledging and overcoming the Part IV problem—we can help ensure that legal scholarship produces the kinds of insights and critiques we desperately need, particularly in this moment of crisis.
