To “to be or not to be” or not “to be or not to be”?
A lighthearted request to authors of legal articles.
“What’s in a name?”1 Often a Shakespeare reference, if we’re talking about the titles of legal articles. Most popularly, an homage to the famous question “to be or not to be,” which turns out to be an incredibly popular naming device. Some authors copy the phrase directly, while others substitute the word “be” with some term relevant to the article—like “disclose,”2 “report,”3 “reaffirm,”4 or “roll.”5 The possibilities are endless.
Or so it would seem. A Westlaw search of articles using this format yields more than a thousand results.6 Though this phrase may have seemed limitless, we’ve found ourselves scraping the bottom of the barrel. Indeed, this naming convention has been so exhaustive that authors have been forced to reuse the same verbs and nouns.7 This is not to say that new topics will not arise tomorrow, thereafter seducing the legal academy into just one more hit of this cliché.8 But when this moment arises, I make just one request: resist the temptation to use this phrase. There are so many better titles at your disposal.9
This is not to say you cannot borrow from Shakespeare.10 Indeed, I do not come to bury Shakespeare; I come to praise him.11 In this praise, though, lies a warning: not all which comes easy is gold.12 Often, the better part of creativity is discretion.13 Many great articles are undermined when this discretion is used to settle on a cliché that ultimately signifies nothing.14 To be sure, I know that it is not easy to think of a good title for an article. Though some articles just naturally lend themselves to great titles, most require greatness to be thrust upon them.15 All I ask, though, is that when naming our articles, we each recognize that we face an important choice: “to be [unique] or not to be [unique]?”16 That is the question.
William Shakespeare, Romeo and Juliet act II, sc. 2.
Mary L. Kovalesky, To Disclose or Not to Disclose: Determining the Scope and Exercise of A Physician’s Duty to Warn Third Parties of Genetically Transmissible Conditions, 76 U. Cin. L. Rev. 1019 (2008).
Stormy L. Strickland, To Report or Not to Report?-Supreme Court Determines Dodd-Frank’s Whistleblower Protection Only Extends to Individuals Who Report Directly to the SEC, 48 Tex. J. Bus. L. 1 (Spring 2019).
Fred W. Bopp, III, To Reaffirm or Not to Reaffirm: Much Ado About Nothing or the Tempest?, 15 Me. B.J. 86 (2000)
Jose J. Valcarce, To Roll or Not to Roll: An Analysis of Factors to Consider in Deciding Whether to Retain Retirement Assets in an Employer’s Qualified Plan or Whether to Roll Them to an IRA, 7 Hous. Bus. & Tax L. J. 272 (2007).
See, e.g., Jill I. Gross, Post-Pandemic FINRA Arbitration: To Zoom or Not to Zoom?, 52 Stetson L. Rev. 363 (2023); Alexander Maas, The Inadequacies of Cost-Benefit Analysis As A Tool for Decision-Making: To Breach or Not to Breach, 58 Idaho L. Rev. 109 (2022); Angélica Guevara, To Be, or Not to Be, Will Long Covid Be Reasonably Accommodated Is the Question, 23 Minn. J.L. Sci. & Tech. 253, 255 (2022); Slade Mendenhall & Brian Underwood, To Sever or Not to Sever: Mixed Guidance from the Roberts Court, 69 Drake L. Rev. 273 (2021); Michael Heise, Jason P. Nance, To Report or Not to Report: Data on School Law Enforcement, Student Discipline, Race, and the “School-to-Prison Pipeline”, 55 U.C. Davis L. Rev. 209 (2021); Hillel Y. Levin et. al., To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties?, 73 Wash. & Lee L. Rev. 915, 916 (2016); James E. Gallagher, To Prosecute, or Not to Prosecute, Who Should Make the Call?, 50 New Eng. L. Rev. 73 (2015); Maureen Johnson, To Quote or Not to Quote: Making the Case for Teaching Law Students the Art of Effective Quotation in Legal Memoranda, 56 S. Tex. L. Rev. 283 (2014); Evelyn M. Aswad, To Ban or Not to Ban Blasphemous Videos, 44 Geo. J. Int’l L. 1313 (2013); Pamela Taylor, To Steal or Not to Steal: An Analysis of the Computer Fraud and Abuse Act and Its Effect on Employers, 49 Hous. L. Rev. 201 (2012); Jason R. Mudd, To Construe or Not to Construe: At the Interface Between Claim Construction and Infringement in Patent Cases, 76 Mo. L. Rev. 709 (2011); Hillary Farber, To Testify or Not to Testify: A Comparative Analysis of Australian and American Approaches to A Parent-Child Testimonial Exemption, 46 Tex. Int’l L.J. 109 (2010); David D. Haddock, To Tax Tribes or Not to Tax Tribes? That Is the Question, 12 Lewis & Clark L. Rev. 971, 972 (2008); Richard L. Lippke, To Waive or Not to Waive: The Right to Trial and Plea Bargaining, 2 Crim. L. & Phil. 181 (2008); Gary J. Simson, To Teach or Not to Teach, 39 U. Tol. L. Rev. 375 (2008); Traci Donovan, Foreign Jurisprudence—To Cite or Not to Cite: Is That the Question or Is It Much Ado About Nothing?, 35 Cap. U. L. Rev. 761 (2007); Shelby D. Green, To Disclose or Not to Disclose? That Is the Question for the Corporate Fiduciary Who Is Also A Pension Plan Fiduciary Under ERISA: Resolving the Conflict of Duty, 9 U. Pa. J. Lab. & Emp. L. 831 (2007); Robert J. Aalberts, “To Sue or Not to Sue”: The Past, Present and Future of Construction Defect Litigation in Nevada, 5 Nev. L.J. 684 (2005); Paul S. Mistovich, To Recall or Not to Recall?, 14 B.U. Pub. Int. L.J. 163 (2004); Alan F. Blakley, To Squeal or Not to Squeal: Ethical Obligations of Officers of the Court in Possession of Information of Public Interest, 34 Cumb. L. Rev. 65 (2004); Steven Zeidman, To Elect or Not to Elect: A Case Study of Judicial Selection in New York City 1977-2002, 37 U. Mich. J.L. Reform 791 (2004); Kassie Hess Wiley, To Disclose or Not to Disclose, That Was the Question-Until Now: Tennessee’s New Rule of Professional Conduct 1.6 Mandates Disclosure of Confidential Client Information to Prevent Physical Injury or Death to Third Parties, 34 U. Mem. L. Rev. 941 (2004); Ellen J. Pantaenius, To Speak or Not to Speak: The Interplay Between Unfair Trade Practice and Securities Laws Poses Challenges for Corporate Speech, 72 UMKC L. Rev. 257 (2003); Fazila Issa, To Dispose or Not to Dispose: Questioning the Fate of Preembryos After A Divorce in J.B. v. M.B., 39 Hous. L. Rev. 1549, 1551 (2003); Stanley A. Goldman, To Flee or Not to Flee—That Is the Question: Flight As A Furtive Gesture, 37 Idaho L. Rev. 557 (2001); Paula Walter, The Doctrine of Informed Consent: To Inform or Not to Inform?, 71 St. John’s L. Rev. 543 (1997); J. Clark Kelso, To Devolve, or Not to Devolve?: The (d)evolution of Environmental Law, 27 Pac. L.J. 1457 (1996); R. Bryan Morrison, To Seal or Not to Seal? That Is Still the Question: Arkansas Best Corp. v. General Electric Capital Corp., 49 Ark. L. Rev. 325 (1996); Jacqueline D. Fernandez, Non-Profit Peddling in Waikiki: To Permit or Not to Permit?, 17 U. Haw. L. Rev. 539 (1995); Jennifer Marigliano Dehmel, To Have or Not to Have: Whose Procreative Rights Prevail in Disputes over Dispositions of Frozen Embryos?, 27 Conn. L. Rev. 1377 (1995); Kevin J. Kelley, To Enhance or Not to Enhance: A Guide to Uniformity in Applying Perjury Enhancements Under Section 3c1.1 of the United States Sentencing Guidelines: United States v. Dunnigan, 27 Creighton L. Rev. 585 (1994); Mark A. LoBello, The Dichotomy Between Artistic Expression and Industrial Design: To Protect or Not to Protect, 13 Whittier L. Rev. 107 (1992); Sharon A. Mattingly, To Quote or Not to Quote: The Status of Misquoted Material in Defamation Law, 43 Vand. L. Rev. 1637 (1990).
Compare Shelley Ross Saxer, To Bargain or Not to Bargain? A Response to Bargaining for Development Post-Koontz, 67 Fla. L. Rev. F. 5 (2015), with Marilyn L. Widman, To Bargain or Not to Bargain? Identifying Mandatory and Permissive Subjects of Collective Bargaining in Ohio After Serb v. Youngstown City School District Board of Education, 30 U. Tol. L. Rev. 215 (1999). Compare also Alissa Macomber, To Pay or Not to Pay: The Nevada Slayer Statute and the Insurance Companies’ Dilemma, 9 Nev. L.J. 475 (2009), with M.P. Sullivan, To Pay or Not to Pay-the Fifth Circuit Divided: The Issue of Gas Royalties on Take-or-Pay Payments, 62 Tul. L. Rev. 297 (1987). Compare also Agron Etemi, To Defer or Not to Defer: Why Chief Justice Roberts Got It Right in City of Arlington v. FCC, 118 Penn St. L. Rev. Penn Statim 22 (2014), with Elliot Gardner, To Defer or Not to Defer: Judicial Review of Zoning Board Decisions in New York, 2 Cardozo Pub. L. Pol’y & Ethics J. 421 (2004).
We will undoubtedly see “To ChatGPT or not to ChatGPT” in a law journal any day now.
Once in a blue moon, there is an article that just begs for this phrase to be used. See Timothy P. Loftus, To Bee or Not to Bee: Robobees and the Issues They Present for United States Law and Policy, 2016 U. Ill. J.L. Tech. & Pol’y 161 (Spring 2016). In such rare cases, ignore the pleas of this essay.
For a collection of other quotes that authors use, see generally Stephanie J. Willbanks, What’s in A Name? Would A Rose by Any Other Name Really Smell As Sweet?, 63 J. Legal Educ. 647 (2014).
See William Shakespeare, Julius Caesar act III, sc. 2.
See William Shakespeare, The Merchant of Venice act II, sc. 7.
See William Shakespeare, Henry IV act V, sc. 4.
See William Shakespeare, Macbeth act V, sc. 5.
See William Shakespeare, Twelfth Night act II, sc. 5.
William Shakespeare, Hamlet act III, sc. 1.