Posted by: Patrick Allen Foster | October 24, 2013

Liptak Slams Law Reviews, Much Harumphing Ensues

Earlier this week, Adam Liptak lit up the blawgosphere with a critical article in the New York Times on law reviews. Just about all of the points he makes have been made before and are probably familiar to anyone who has ever worked on a law review. Still, every so often a well-placed piece on a perennial controversy will catalyze a conversation. Here’s Liptak:

“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?

These student editors are mostly bright and work hard, but they are young, part-time amateurs who know little about the law or about editing prose. Yet they are in charge of picking the best articles from among many hundreds of submissions written by professors with authentic expertise in fields the students may never have studied.

Liptak goes on quote remarks by Chief Justice Roberts (“Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar”) and other judges.

A summary of the critiques Liptak and others make of law reviews might look like this:

  • they are edited by law students, who are amateurs and who necessarily lack experience in the practice of law;
  • the articles are heavy on theory and tend toward esoteric subjects that are of little interest or help to legal practitioners or the judiciary;
  • the tend toward theory-heavy and esoteric articles has increased over time, such that courts like SCOTUS no longer cite law review articles as much as they did in the past;
  • law reviews generally have no peer review mechanism, as would be standard in the journals of many other academic fields.

Liptak’s article has sparked a number of responses. Prof. Paul Caron (TaxProf Blog) has collected these responses (here and here), so I just want to focus on a handful.

First, at the Volokh Conspiracy, Will Baude and Orin Kerr both have posts defending law reviews. Baude:

First, the emphasis on judicial citations is misleading. Not all law review articles are trying to be cited, let alone be cited by courts. I can say from personal experience that there are a lot of articles that get read and used by law clerks and law firm associates but aren’t cited in the final opinion or brief.

Then there are articles that simply address other audiences. Some address legislatures — think of Vic Fleischer’s work on carried interest, which led Congress to introduce legislation that would have taxed fund managers at higher rates. And there are even articles that address, yes, academics or students or future generations.

Second, let us assume that many law review articles are indeed bad. In fact, I suspect this is true. But so what? Remember Sturgeon’s Law, that “90% of everything is crap”? That does not tell us much about the many that are good.

The model of legal scholarship is different from some other academic fields that rely more on pre-publication screening instead of post-publication screening. In these fields, the goal is that only stuff that is good (or thought to be good by the gatekeepers) gets out in the first place. The peer review model is better at generating a consensus in the field — or at least the appearance of one. The legal scholarship model is better at generating a wide range of arguments that subsequent readers can evaluate for themselves.

Kerr:

Liptak suggests that law reviews have less influence today than they did in the 1970s and 1980s, citing a study that about 50% of Supreme Court decisions in the 1970s and 1980s cited law review articles while only 37% of decisions since 2000 do so. But that difference is likely explained by the growing rift between the ideology of Supreme Court Justices and legal academics, not anything about the law reviews. Back in the 1970s, the Justices and the legal academics were more or less in sync. Justice Marshall could cite Larry Tribe for support, and it was all copacetic. That is no longer true. Today’s conservative Justices view legal academics as hopelessly out-of-touch with the Court. The mainstream of the academics and the mainstream of the Justices don’t share much space in common, at least compared to an earlier generation. The Justices are less likely to cite articles because of the content their authors provide, not because of student editors.

…In my view, law reviews are easy to criticize because they are a strange hybrid. They purport to serve two audiences at once — both legal academics and the bench and bar. Their hybrid status satisfies no one. If you think law reviews should be written for judges and practicing lawyers, then they are terrible because they generally are not relevant to the practice of law or the kinds of issues that judges regularly encounter. On the other hand, if you think law reviews should be written for academics, then law reviews are terrible because law student editors are not subject matter experts and can’t adequately spot top academic work. Both of these critiques are entirely fair within their assumptions. If you pick your audience, you have your critique. But they are also in tension with each other. For example, those who criticize law reviews for their lack of real-world impact may want to think twice about the role of students in the process. As between student editors and faculty editors, student editors are probably more interested in real-world impact and accessible writing than are elite academics. As a whole, the knowledge that student editors will be selecting articles probably pressures legal academics to write scholarship that is more easily understood by lawyers and that has more real-world relevance and impact than they would if the journals were all edited by professors.

Meanwhile, Ann Althouse and Scott Greenberg have posts that ask why law reviews are the way that they are.

Here’s Greenberg, looking at what he sees as the real purposes behind law reviews:

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.

And here’s Althouse:

The on-line game is so much more energetic and invigorating than the tedious slog to write the unreadable stuff that can be placed — placed, like an unread book is placed on a shelf — somewhere prestigious.

Ever stop in the middle of trying to read a law review article and say to yourself: What am I reading? What this is is a line on somebody else’s resume. It wasn’t meant to be read. It was meant to be a title with a citation that would be a line on someone else’s resume.

And how many law review articles will you write before you rankle at perversely worrying 100 pages into a conventional style and form to be edited by students who will strain to eradicate whatever shred of personality made it through to your final draft? At what point will your earnest effort decline into the cynical production of verbiage to be condensed into a single line on your resume?

Liptak cites a new survey of “2,000 law professors, lawyers, judges and student editors,” which found that “Law professors were more critical than any other group.” Guess who the lawprofs blamed? Students. I’ve been through this before. … Don’t blame the students, professor. They’re your students.

In the interests of full disclosure, I suppose I should mention that I was on law review back in the day. That said, I have never read a law review issue cover-to-cover, as on might a novel or a magazine. But I have over the years come across various law review articles in the course of researching a topic, and if nothing else, law review articles are good for pointing the reader to cases and other sources — much like encyclopedia articles or the best reference books, or like review articles in the physical sciences. When researching a legal topic, finding a law review article that is even slightly on topic is like striking oil.

Law review articles are not meant to be read. They are meant to be consulted.

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