Zombie Law Reviews Won’t Die

In the quiet, secret world of people who call themselves legal scholars and public intellectuals, a discussion was had: Is it time to end the misery? Carissa Hessick defends the zombies.

One criticism of law review articles that they are too long.  If you can’t make your argument in 25 pages, so the argument goes, you should simply write a book instead.  I disagree.  I can think of plenty of arguments that cannot be fully supported and defended in only 25 pages.

But then, there are plenty of law review articles that could make their extremely limited point in ten pages, if you cut out the “appreciation” footnote. Assuming the law review article is worthy of publication at all, rather than fodder to fill the empty pages of the multitude of journals every law school produces to give the kids something to put on their resume, most would be more than sufficient at ten pages to state and support their position. 

I get it. Prawfs must be very serious. In the one in a million chance their article is read by anyone outside their family, maybe even makes it into an opinion, they want to have it locked up, every I dotted and T crossed. Let no weasel word go unfootnoted. But that’s one of the reasons no one reads law review articles. They’re tedious. Prolix. Long and incredibly boring. The article may have a brilliant idea, but the reader has to live long enough to get to it.

A second criticism about law review articles is that the effort we put into them would be better spent writing in other formats that are more likely to be read by the general public.

Maybe the general public. Maybe lawyers and judges, the vulgarians who do what you see from afar.

Writing a law review article forces you to conduct significant research, think deeply about a problem, and seriously engage with arguments on the other side.  In other words, writing a law review article makes you an expert about a particular issue. (Emphasis added.)

No. No it does not. No, no, no. Possessing expertise makes you an expert about a particular issue. Writing a law review article makes you a law review article writer. It may be that a prawf is an expert, to the extent that word applies, about an issue, but it’s far more likely that the academic is little more than a functionary, recounting what others have written, said and done, with plenty of reach but no real grasp.

Academics often fail to appreciate why ideas they believe to be brilliant don’t catch fire, with their never-before-considered paradigm shifts in the foundations of legal doctrine, but those in the trenches see a very different problem. Your brilliance bears no resemblance to reality and no recognition of how law actually happens. You write about unicorns prancing on rainbows. You write about that one tree in a forest you’ve neither seen nor even realized existed. But you believe with all your heart that your one tree is the most important tree, the tree to end all trees, the tree that will change all trees. It’s just a tree.

As Paul Horwitz responded, this isn’t the first time academics have discussed the moribund law review article. Indeed, it’s been discussed many time, most notably after C.J. Roberts let rip that nobody needs an article about “the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.” Oh, the trauma, the pain, the disrespect.

There are valuable, even important, law review articles. Orin Kerr’s articles on the CFAA are regularly cited by courts, and they matter because they deal with real problems in need of real solutions. That can’t be said of all.

In the grand scheme of allocating scarce resources, how is it possible that lawprofs believe that a dedication of $100,000 toward the completion of such critical scholarship as Harry Potter and the Half-Crazed Bureaucracy, 104 Mich. L.R. 1523 (2006) is a good use of capital?

Remember, lawprofs get paid a salary while writing this drivel, and that salary gets paid from students’ tuition.

The upshot is that Hessick is both right and wrong. There is a place for scholarship, even if most are experts in nothing more than the use of Microsoft Word. There is a place for shorter, punchier, actually interesting writing as well, where people will actually read it and, perhaps, come away a little smarter than they started. Op-eds. Blog posts, Cosmo articles. Whatever. It may not get you tenure, but it might just help people to understand the issue a little better.

But some deep ideas can’t be fleshed out adequately in a blog post, and Carissa is right that they require a more thorough, more scholarly parsing than can be accomplished in another format. Sometimes, academics have some truly brilliant ideas. Not often, but sometimes.

Most academic writing serves only academic purposes, whether tenure or ego. Calling yourself an “expert” doesn’t make you one, no matter how hard you stomp your feet. As long as you realize that the vast majority of law review articles are the unfortunate murder of words for no intellectual reason, write all you want and come to grips with the fact that no one will read it, no one will care. It’s a tree falling in the forest with no one there to hear it.

If you want to believe your brilliance matters, on the other hand, then a couple observations. Write about things that matter to the people who do whatever it is you write about. Write about it for real, not from the backs of unicorns. State an actual idea in real words, without the equivocation and with a degree of clarity that makes your idea modestly comprehensible.

And most importantly, be brief. How long should a law review article be? How long should a person’s legs be? But no longer. Not a single word longer. Then again, I’m neither an expert nor public intellectual, so what do I know.

38 thoughts on “Zombie Law Reviews Won’t Die

  1. wilbur

    I guess I should put the kibosh on my upcoming article: “The Erie Doctrine and Justice Whitaker: A Deconstruction of Transgender Values”.

      1. wilbur

        That was quite a post from Mr. Bennett,, with a lesson for all of us.

        However, I think he was wrong to put “Dishonestly” in his brief. It added nothing to his argument and makes him look bad instead of the intended target.

        Adverbs like that should be used sparingly, if at all, in a document submitted to the court. If there is dishonesty involved, it should be evident without having to label it as such.

        1. SHG Post author

          On the one hand, had Bennett realized that West’s quote was not of the law, but of Franks’ mischaracterization of the law, he likely would have written something different. On the other hand, getting his prosecutor pissed worked to his tactical advantage. Did it make Mark look bad? Not if we judge it by what happened at oral argument.

          1. wilbur

            Yes, I thought about that. Strategically, if you know something is going to push your opponent’s bat-shit crazy button, you may want to. But it’s risky.

  2. Richard Kopf

    SHG,

    One of the foremost critics of law reviews and legal education writ large is Judge Harry Edwards of the D.C. Circuit, who was, and remains, a law professor and eminent legal scholar himself. His article on The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 401 (1992), has been recognized as one of the most-cited law review articles of all time.

    I highly recommend to your readers an easy to read 2016 interview of Judge Edwards by Ronald K.L. Collins. It is entitled “On Legal Scholarship: Questions for Judge Harry T. Edwards.” One can find the interview on the web without difficulty.

    All the best.

    RGK

    1. Anon

      Judge Kopf,

      Why haven’t you written more law review articles?

      Not being sarcastic here, I think you would be able to address real topics with pragmatic solutions– at least they would start thoughtful conversation.

      You and a law clerk/law student should index what are probably hundreds of opinions, and look for common issues that need to be addressed by the bar–then write something about it.

      That would help a lot of us in the field.

      1. SHG Post author

        I only comment to note the value of your using “anon” as your handle for this comment. I hope the Mossad doesn’t find you.

      2. LocoYokel

        As a layman the issue I see with this is the same one that occurs in any field.

        While everybody could benefit, those who need it the most assuredly won’t. They would believe that it doesn’t apply to them because $REASONS and would proceed to discuss in their groups how obviously ignorant the author is as he isn’t parroting back their party line and telling them how right they are in all things.

        I would love to read (ok, skim) such a work although my understanding would be much shallower and I would miss much that speaks to those knowledgeable in the law.

        1. SHG Post author

          Practicing lawyers don’t read L.Rev’s unless they’re extremely good or on an issue where they desperately need some backup and will take whatever they can get. Some of us read more than others, but no one reads them for kicks.

          1. Jim Tyre

            Fact check: true. You’ve mentioned Orin. I read him regularly, because he writes about subjects that are relevant to my practice. (I don’t always agree with him, but it’s always worth knowing what he’s saying.) There are some others, but they’re the exceptions to the rule.

            1. SHG Post author

              But there’s something more about Orin than others who may write about CFAA or 4th A. He know his stuff and his ideas find their way into decisions. So it’s not just relevant to your practice, but relevant to your success in practice.

      3. Richard Kopf

        Anon,

        I have written four law review articles. One dealing with citation counts by the courts regarding two law reviews (judges generally ignored them, so I found), one dealing with partial-birth abortion and a challenge to conservatives, one (for a Canadian law review) dealing with the internet and the courts and one dealing with sentencing and the use of empirical data to inform sentencing.

        I have decided against writing any more because I have now concluded that Professor Christopher M. Fairman’s article, entitled Fuck, 28 Cardoza Law Review 1711 (2006), said it all.

        More seriously, my past blogging efforts satisfied my needs to write for lawyers and informed lay people. I am just too tuckered out to continue outside of writing for my day job. Besides, the ever-increasing brain-dead nature of discourse even among the legal profession has truly discouraged me. And, finally, there is nothing sadder than an old bastard trying desperately to remain relevant while baying at the moon.

        All the best.

        RGK

          1. Richard Kopf

            SHG,

            No, I didn’t mean you as you are well aware.

            Yours is the only blog I read every day without fail. Yours is the only blog I comment on. I marvel at you as a person, a writer, and a thinker. I have called you a public intellectual and I meant it.

            Besides, you are now the proud owner of the 2018 HEUER AUTAVIA JO SIFFERT COLLECTOR’S EDITION BY CALIBRE 11. Life is good at your double wide.

            All the best.

            RGK

        1. Skink

          “Besides, the ever-increasing brain-dead nature of discourse even among the legal profession has truly discouraged me. And, finally, there is nothing sadder than an old bastard trying desperately to remain relevant while baying at the moon.”

          Rich, I know you’re discouraged. We know you’re discouraged. But what if you can bring one brain-dead individual back to the circus? Your voice is needed and wanted. Your voice is unique. What if Paine decided to stop writing?*

          Besides, if the lawyers in your day job don’t tell you what to write, you should just smack them in the head.

          *I go a little too far, but fuck it: I want you to write.

  3. Stephan Illa

    Long ago, Fred Rodell, a professor of law at Yale, wrote an insightful and entertaining attack on law review writing. He opined: “There are two things wrong with almost all legal writing. One is its style. The other is its content.” F.Rodell, Goodbye to Law Reviews, 23 Va. L. Rev. 38 (1936). Rodell’s piece is available for free on-line [no link for you!], and his criticisms are as pertinent today as when they were written.

  4. Jim Tyre

    Sigh. But for law reviews, The Common Law Origins of The Infield Fly Rule, 123 U. Pa. L. Rev. 1474 (1975), would not exist. It’s extremely important scholarship, still relevant today. And one continues to be in awe of the fact that it footnotes the first word of the article, that word being “The”.

  5. pav

    I don’t mind a long article that provides a history lesson. A well-researched article can help place a current legal doctrine, statute, or rule in its proper context–providing the “how” and “why.” Reminds me of the Chesterton reference you’ve made multiple times about needing to know why a fence was erected before tearing it down. I’ll read 25 pages about the history of the fence, not 25 pages about what we should do with the fence.

  6. shg

    Carissa Hessick decided to respond to this post by twitter (unfortunately, as it precludes engaging in any discussion here), but here’s what she had to say. There are 18 twits in total.

    1. CBHessick

      Thanks for posting the link to the Twitter thread, Scott. I was just going to do that.
      ~ Carissa

      1. SHG Post author

        Just to reiterate here what I replied on the twitters, we’re more in agreement than you may realize. While you re-raised an old issue in your new post, this has been an ongoing discussion for more than a decade online, and obviously longer (See Fred Rodell) in dead trees.

        Just so you know where I’m coming from, my favorite law review article ever (by Sasha Volokh), with Orin Kerr’s A Theory of Law, a close second.

        1. CBHessick

          I agree that some of what we are talking about has been discussed quite often before. But I don’t think, for example, that what I am saying is responsive to Judge Edwards’ critique of legal scholarship. And for reasons I explained on twitter, I think the blogging conversation of ~ 15 years ago is a bit different as well. https://twitter.com/CBHessick/status/984409531433316352

          1. SHG Post author

            There are some nuances that have changed over the years. Blogs were fresh then, and no one was sure where they would go. We know better now. But on the whole, the argument has always been law reviews or something else. I am in favor of scholarship, both because I believe we need a place to discuss/consider theory and shifts, address how law should affect technology, etc. I just want to it to be more user friendly and effective.

            By the way, ask Dave Hoffman about my vulgarian comment. Much of my writing style involves obscure references for my own amusement. Long time readers may get it, but like Dudley Moore in Arthur, sometimes I just think funny thoughts.

      2. Miles

        One thing about your “experts” issue: Some people become experts. Some never do. Neither writing scholarship nor practicing for 100 years guarantees that you’re an expert at anything. For practitioners, expert is something others call you. To call oneself an expert is rather shameless.

        1. SHG Post author

          I’m not sure what qualifications, if any beyond employment, make someone a scholar, but I’ve noticed that some academics use the word “expert” and “scholar” interchangeably. Whether they’ve achieved authoritative status may not be the issue as it is for lawyers.

    2. Charles

      Maybe you just call a truce? Profs can write as much as they want. With footnotes. But they must publish via twitter. /1 of 2,984

  7. B. McLeod

    Too many academics lack the discipline wrought by the practical experience of courts that will not extend page limits simply because the proponent of a position thinks more words are required to properly support the argument.

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