Legal Commentary

As I've begun to go to conferences and to learn what legal academic life is all about, I'm coming to appreciate some of the manners of speech and phraseology that are part of the culture.  The pregnant So..., the postmodern "stories" and "narratives" (often offered up inside tellingly non-neutral quotation marks), the orthogonalisms, the acutely self-conscious normative/descriptive parsings, the takings up of the second part first, and so many others.  For the most part, these turns of phrase and other methods of communal engagement are not at all objectionable to me -- in fact, there is a good deal to be said for the verbal and stylistic peculiarities of academic culture.  It's even interesting how one or another shard of argot seems to catch fire, live out its natural life, and expire.

At a few conferences this year I have heard the phrase, "It is what it is," uttered either by the speaker in chief or a respondent.  At one, it was used twice in the same session by two speakers, though with somewhat different connotations.  The idiom is not new to me (and probably not to many of you, too) and has been imported, I think, from the business and/or sports culture.  I know folks in the business world for whom the phrase is a staple, and I seem to recall Jason Varitek recently intoning it despondently after the Red Sox were embarrassed by the upstart-but-still-destined-never-to-win-it-all Tampa Bay Rays (and whatever happened to the evocative "Devil" modifier?).  

I've never much liked the idiom.  Here's a gloss on its possible meanings in an academic context, though probably there is substantial crossover to other spheres:

• Conversation strangling: "It is what it is" may be meant as a suffocating move.  There just isn't anything left to say, and that should be obvious.  All reasonable inquiry has been exhausted.  The time for thought is past; now is the time for action.  What will you choose and what will you do?
• Fatalistic: Here the phrase is meant to indicate something unchanging and immutable.  There is no point in intellectual resistance when one is up against the vast, impersonal forces of nature.  There is a kind of metaphysical inevitability in the point being made, one which reflects the sweeping and recurrent patterns of history.  From a description of the thing examined is derived a moral attitude toward it -- a resigned helplessness coupled with the power to predict the future and retrodict the past.
• Hard-nosed commonsensical: the idiom can also mean something calculatingly pragmatic.  This sense is perhaps closest to that used by my business friends: if "it is what it is," better to cut one's losses and expend one's resources elsewhere, where the payoff is sweeter.  Banging one's head against a stone wall is not profitable.  It is the shrewd person who hears clearest the voice of practicality and who intuits when enough is enough.
• Mystico-Essentialist: "It is what It is" is a contemporary echo, maybe, of "I am what I am" (God or Popeye, as you like).  In some subconscious way, the phrase is meant to impart a spiritual authority to the object -- the "it" (no need to complicate matters by calling it the id).  The "it's" essence has been uncovered and it is nothing less or more than the mute thing in itself.  Ok, ok, perhaps this last gloss is a stretch.

Each of these possible meanings is pernicious in its own way.  This is not to say that there is nothing insightful in each of them.  But I do think that "it is what it is" should not be used unthinkingly or reflexively.  It is not at all an innocent turn of phrase and I hope very much that it does not become one of our permanent verbal mannerisms (incidentally, a Westlaw search dredged up a few recent articles that use the idiom, including Pierre Schlag's latest incursion in the Georgetown Law Journal, where it is used to describe legal scholarship itself). 

To combat the ascendancy of this idiom, it might be worthwhile to introduce a few variations at that next conference; maybe,

• Dadaist: "It isn't what it is."
• St. John of the Cross/Via Negativa: "It is what it isn't."
• Burkean: "It is what it has been."

Suggestions for others? 

Back to exam grading, which I am now discovering is exactly what it is.