According to Jeff Harrison at MoneyLaw, that’s the number of law review articles produced by lawprofs over the past 10 years. I kid you not. 72,000. And climbing. And that’s without adding in the books they write.
To what end? According to Lucky Jim, “. . . along the knife-edge dividing the conceivably-just-about-relevant from the irreducibly, immitigably, irrelevant.” Other than to prove scholarliness and productivity amongst one’s peers, and to help their law school ranking, not even other lawprofs can bother to read them.
One hundred thousand offerings by law professors. Tons and tons of law review pages, ink, and now, of course, down-loaded pages just in case the article may come in handy. If you down-load as casually as I do, these are send to recycling about a year later often after not much more than a skim.
Should trees die so lawprofs have something to do at night? I think not. In fact, I think it’s a terrible waste that so many good thoughts and carefully drawn sentences are wasted on the dusty desks of other lawprofs. Since I’m not a lawprof, I must posit that they write because they must if they want to keep their standing amongst academics. But does it serve any greater good? Not if there are so many articles that no one can read them.
But it doesn’t have to be this way. It’s a shame to waste all these fine minds on writing articles that no one will read, and certainly not the “irreducibly, immitigably, irrelevant” articles.
As Harrison proposes more rigorous standards for publication, to reduce the sheer number to something more manageable (not to mention useful), what are the others to do? How about go out into the real world and apply their formidable talents to the representation of people who are otherwise shut out of the legal system? Certainly, there are the poor criminal defendants entitled to counsel by Gideon. But what of the civil litigants for whom legislatures and courts create many important rights and causes of action, but the cost of vindicating those rights is so disproportionate that it will never happen.
Consider, for example, the Tom F. case, which was financed by a wealthy parent but was of huge importance to less wealthy families who would never otherwise have been able to afford to litigate a case like that all the way to the Supreme Court. There are plenty of cases like this, where enormously important rights are at stake, but subject to financial ability to litigate. It’s perfect.
It’s not that some law review articles don’t enhance our understanding of the law, or influence its future direction. But 72,000? Too many words with far too little relevance. Consider this option, going out into the real world and putting your energies toward helping real people with real problems in the real world. Now that’s relevant.
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I like Jeff’s critical take, but I also think a post like that can’t just be based on sheer volume alone. Give some examples of terrible law review articles!
On some level, the articles explosion is driven by the USNWR rankigns rat race. The idea is to be influential in your field, and the way to do that is to get cited in other articles. It’s an entirely internal, self-referential system of merit.
Now some copyright professors in Canada just started a Facebook profile that helped scuttle a terrible proposed law there. That’s a real service to the community. But note how ideological neutrality in the field is going to slow down recognition of that achievement….some people are going to think it was a great law, and they are going to be unwilling to acknowledge the significance of this political contribution. Perhaps the same could be said of my colleague David Feige’s superb book Indefensible….some are going to disagree with his characterization of the criminal justice system, and unfairly discount his work as a result.
So ideological disputes lead us to fall back on neutral “citation counts” as a way of assessing quality. We end up mistaking scientific criteria of influence for social relevance. The name of the game becomes trying to write an article about a relatively ubiquitous concept that everyone is going to want to refer to in future articles, so they refer to you. On some level, that is precisely the wrong incentive to create–it really discourages people with very different perspectives from
critiquing the mainstream, because they won’t get cited. They’ll be seen as too far outside it.
One final example: I wrote a piece on search engines recently that (I thought) included an important critique of economists’ treatment of externalities. I originally entitled the piece “Information OVerload Externalities.” But I later gathered that because the piece critiqued (rather than participated in) the language game of legal economists, they’d never cite it. So it got renamed “Copyright in an Age of Information Overload.” The piece fitted well within the mainstream of copyright scholarship, and has done well there. But I doubt it will have the effect it really ought to have–leading legal economists to question their positivism when it comes to cyberspace.
Anyway, that’s probably too much for now, but I want to say that there are lots of arguments to be had. On the other hand, perhaps we really are witnessing some dialogues of the deaf….and if that is the case, it is truly useless. I have worried about that in a recent piece on economic debates over network neutrality, and will send that to anyone interested.
You raise many excellent points, Frank. I forgive Jeff’s lack of examples due to the space constraints of a blog post, not to mention the crap he would take by “naming names” amongst a group that demands collegiality, or else.
Don’t fret for Bronx buddy, David Feige. He’s got an audience, but the time isn’t right to challenge the status quo in criminal justice. Consider the flip side, the book by (now-deceased) Justice Harold Rothwax, Guilty. Harold was a long-time Legal Aid lawyer in Manhattan who was appointed an Acting Supreme Court Justice back in the days when it wasn’t a crime to be a defense lawyer. But over the years, he soured. It wasn’t that Harold wasn’t smart; he simply became bitter. His polemic was intellectually unsound and pragmatically unfair. But it was right for the time.
I’m sure that you are correct about what’s driving this train (and particularly like your phrase “an entirely internal, self-referential system of merit”), and I’m equally sure that most lawprofs realize that the train is going nowhere. So how do lawprofs, as a group, get off the train and put their efforts into something more societally useful/relevant?
I would like to review legal articles on Tasers and stunguns.
Why Law Review Will Make You Rich!
Scott Dodson at
Why Law Review Will Make You Rich!
Scott Dodson at