“Call me Ishmael.”

Legal scholarship is in many ways like whaling. We don’t use harpoons, except in especially contentious symposia. And most of the mammalian harm is emotional, rather than physical. But there are many similarities.

1. Whales, Once Abundant, Are Disappearing

In the early days of legal scholarship, novel ideas were abundant. Blackstone, Story, and Kent were out there as background, but there was much unexplored territory—both general theoretical work and summaries of the law. Whales were abundant. Today, the major theoretical positions have been staked out ad infinitum, summaries and restatements of the law are abundant, and the few remaining whales lie on the edges—inspired primarily by new developments in technology and markets.

Much of today’s scholarship merely applies old ideas to new marginal questions. (Witness the work of many late-arriving law-and-economics and critical-legal-studies scholars.) The number of truly novel ideas is dwindling; most of the whales are gone.

2. To a Desperate Whaler, Everything is a Whale

The whales are rare, but the demand for “cutting-edge” scholarship has not ceased. Tenure at most schools depends on it. And the number of legal writers has increased substantially since those early days. Fewer whales; more whalers.

Faced with this mismatch between expectations and possibilities, the tendency is to call anything one finds in the ocean—down to the smallest minnow—a whale. How many times have you read an introduction claiming to offer a significant contribution to the literature, only to find a relatively trivial point? And sometimes the conclusion is not just trivial, but clearly incorrect. Not even a fish or a whale; just an old shoe.

3. Chasing White Whales

“Towards thee I roll, thou all-destroying but unconquering whale; to the last I grapple with thee, for hell’s heart I stab at thee; for hate’s sake I spit my last breath at thee.”

Some scholars spend their entire careers chasing the elusive white whale—the profound insight that all their predecessors have missed that will rock the legal world. It sometimes happens, but only rarely. Most claims of white whales are wrong. And many of us toil on, wasting time on grand theories that ultimately prove unsuccessful, when we might have made useful contributions of a more pedestrian variety.

4. If You Do Catch a Whale, Spend the Rest of Your Life Talking About It

If Ahab had caught the white whale, he would have spent the rest of his life in front of the stove describing his conquest to anyone who would listen. (This is a familiar scene to those of you who know people who love to fish.) The same thing sometimes happens to the few legal scholars who do come up with a profound insight. They spend the rest of their careers applying that insight in marginally different ways.

5. If You Can’t Find a Whale, Talk About Whaling

Some people realize they’re not going to find a whale, so they spend much of their time talking about whaling—criticizing other people’s scholarship; writing about legal scholarship and the publication process. It’s much easier than actually trying to find a whale yourself. Mea culpa.

[The quotes, for those not familiar with the work, are from Herman Melville’s Moby Dick. And, if you’re not familiar with Moby Dick, why not? It’s a masterpiece.]