When Adam Liptak’s column appeared in the New York Times, the question wasn’t whether he was right or wrong, unduly harsh or overly superficial. The question would be how many scholars would scream in agony at another knife in their heart.
“Would you want The New England Journal of Medicine to be edited by medical students?” asked Richard A. Wise, who teaches psychology at the University of North Dakota.
Of course not. Then why are law reviews, the primary repositories of legal scholarship, edited by law students?
The pain. The pain.
James T. Lindgren, a law professor at Northwestern, once put it this way: “Our scholarly journals are in the hands of incompetents.”
Well, sure. And no. It’s hardly fair to call student law review editors incompetents. Amateurs, perhaps, but that doesn’t make it a bad thing. Liptak goes on to repeat the oft-cited words of judges, from Roberts to Jacobs, about how nobody reads law reviews anymore. About how they’re irrelevant to the practice of law. As Matt Bodie notes at PrawfsBlawg:
So here comes Adam Liptak with his version of this tired old story, reciting the quotes & studies that have been trotted out before. I find these critiques to be based on a blend of ignorance, arrogance, and incoherence.
True, the arguments of irrelevance have been said before, as have the defenses by academics who need law reviews to justify their claim to being scholars. As much as I never tire of naked lawprof mudwrestling, so much flailing and hand-wringing about how much scholarship matters, as if they’re saying so will change any judges’ or practitioners’ mind, it’s not as if the same prawfs haven’t made the same arguments before to the applause of their own. That’s the funny part about it, that so many smart former law review editors will murder too many words that are only persuasive to themselves.
But the law review, as an institution, serves purposes. The problem is that it’s not quite the purposes the prawfs would like us to believe they serve. Let’s cut to the quick:
1. Every law school has a law review, and likely a few other journals of inconsequence as well, so that the school’s top students have a role to fulfill that they can put on their resume. If there is no law review, they can’t go to job interviews and say they were an editor of the law review. The more journals, the more students can claim to have participated, though everyone knows that the law review is the top dog, and the other journals are for the second tier students who didn’t make law review. Still, it’s better to have something to put on the resume than nothing.
2. Every aspiring tenured professor needs to publish law review articles. Sure, they all want to be in the top tier law reviews, Harvard, Yale, Stanford, but they only take so many articles and so the aspirants for tenure are forced to keep spiraling toward lower tier law reviews if they want to get published. And they want to get published. Better in a bottom tier law review than not published at all.
3. Within the academic community, there are very few opportunities to make a name for oneself and establish credibility and legitimacy. It’s not like other lawprofs are watching you teach, or even if they did, they would care. Teaching is what academics are forced to do when they aren’t being scholars. Scholarship is what makes them taller, better looking and more adorable. No one gets to speak to a symposium of law profs because they were a really good teacher, and no one who doesn’t get to speak to a symposium is respected by their peers.
4. The foregoing creates a symbiotic relationship that benefits law students and law professors. There is nothing wrong with that.
Now, let’s look at the complaints.
It is hard, for starters, to improve on the classic critique by Fred Rodell, a law professor at Yale, in his 1936 essay, “Goodbye to Law Reviews.”
“There are two things wrong with almost all legal writing,” he wrote. “One is its style. The other is its content.”
People send me law review articles from time to time on subjects that might interest me. I dread reading them, as the turgid prose makes me want to stick needles in my eyes. Sometimes, I’m shocked and thrilled to find that they’re readable, interesting, even useful. It’s rare, but it happens. My all-time favorite law review article is Sasha Volokh’s “n Guilty Men,” 146 U. Penn. L. Rev. 173.
Most are either brutally boring, pointless, or irrelevant. And that’s limiting my reading to only those law review articles that are on subjects of specific interest to me. There are articles so wholly pointless that no lawyer or judge could possibly be interested, yet they see daylight.
And yes, every once in a while, of the thousands upon thousands of murdered words and published articles, there will be one that is transcendent, that will inform and change the legal landscape. These are the ones that the haters ignore and the lawprofs adore. To be fair, they are extreme outliers. To also be fair, they happen.
So what’s the harm in letting this symbiotic relationship go on without the compulsion of pointing out the general worthlessness of law reviews? Without them, we would miss the handful of truly worthwhile articles, and nobody puts a gun to our heads to force us to read the huge mass of crap the kids publish.
The problem is that the bulk of law students, the ones who don’t make law review and are forced to take out loans to pay their full-freight tuition, aren’t enthralled by the number of words their lawprof murdered in Podunk Law Review and would greatly prefer someone who could clue them in on how to become honest-to-god practicing lawyers someday.
Since lawprofs have a median background in the practice of law of seven minutes, they are strong on theory and weak on everything else. And since they are busy thinking up deep and novel thoughts on theory, even that doesn’t tend to be particularly useful. And they get paid a pretty comfortable living for thinking deep and novel thoughts, on the students’ dime, despite this glaring hole in their skillset.
The professoriate could fix the problem, for their own benefit and that of their students, but they would rather murder another million words to argue why teaching (is this a trade school?) and practice experience mean nothing, and why they should be allowed to continue on their path to the brilliant scholarship so adored within the Academy and, occasionally, worthwhile to the profession.
It’s not that the problems are unfixable, but that it’s against the institutional interest of academics to fix them. And so they invite articles like Liptak’s and respond with their self-serving attacks. And law students continue to suffer, given tummy rubs instead of the education they need and for which they became debt-slaves.
And that’s not even getting into the problem that half of all law schools should be shut down. But if they did, they would take half the law reviews and professor jobs with them. Can you imagine how many words would be murdered then?
Edit: If you want to keep tabs on the posts relating to Liptak’s column, TaxProf Paul Carron is graciously aggregating them for your convenience.
* Apologies to Ken White.
“Ideally, one would like to see the law schools “take back” their law reviews, assigning editorial responsibilities to members of the faculty. Students would still work and write for the reviews, but they would do so under faculty supervision. Their care in citation checking would be valued by the authors, but the tendency toward poor judgment and thoughtless impositions on authors would be held in check. Doubtless it is too much to hope for such a reform.” Judge Richard A. Posner, Legal Affairs (November/December 2004).
I doubt it’s much of an ideal. Shifting law reviews out of the hands of students and into the hands of scholars not only ruins the symbiotic relationship, but fails to solve the problem of lawprofs writing articles of no extrinsic value to anyone other than other lawprofs.
In the Posner Law Review Model, law students would retain the critical role of citation checking, and, perhaps, student case notes. Most peer-reviewed law journals have never aspired to create extrinsic value., which is why so few law review articles are cited by the judiciary.
The few outlier law journal articles you allude to in your post are less doctrinal in content. Whether the law review industry creates intrinsic value is dubious, but it depends on how one defines value.
I once wrote an article which commented on a case pending before the Ontario Court of Appeal. I sat in to listen to oral arguments. When one of the lawyers mentioned my article, Justice Doherty remarked something to the effect: “Anyone can write an article. Lawyers and professors often disagree with our decisions, but it doesn’t mean we have to read what they write.”
And why should they? It’s not like they read what we write either.
It’s like that in New York too?
Of course. We’re not special. See Appellate Squawk for details.
I’ll defend Harry Potter for one reason, I was lucky enough to be under a great professor whose evidence book is titled “The Wizard’s Guide to Evidence” and contains numerous cites to Harry Potter. However, he’s very much the practical professor you extort, whose career was long and notable before settling down and teaching evidence and crim pro for 40 years, and keeping a finger on the pulse by practicing as well as teaching.
I’ll also defend some of the other Journals. Truth is most people in law care about a couple topics unless they suddenly need something. The specialist journals cater to those folks. At lessor tier schools that have a strong focus on one or two fields of law, those Journals may be higher ranked than the main journal. They also get more attention within that field since they service it. Which can have more direct effects. In any event there’s still a place for traditional legal scholarship, even with its warts, and even if not cited it can have a good effect.
A notable incident would be John Duffy’s paper pointing out a flaw in the appointment process of administrative law judges in the patent office that lead to a rather quick change in the law. It’s a pure theory academic paper, lots into obscure academic issues, but it likely stopped years of expensive litigation. (The short version is the judge’s were being appointed by the PTO Commissioner, not the Sec of Commerce, which made ~10 years of appointments likely invalid).
Huh. You appear to be citing to me for a statement that I didn’t make and don’t believe. (That “practice experience mean[s] nothing”).
Have you considered using a cite checker to verify your sources?
Comments speak for themselves.
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