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March|April 2005

LAW REVIEW UNDER REVIEW

In critiquing the law review system as we know it, Judge Richard Posner provides a good challenge to law review editors to do better ("Against the Law Reviews," November|December). However, blame for the true failings of the law review system should be laid at the feet of law professors, not law students. Law school professors and administrators are co-conspirators in perpetuating the system that Posner attacks. Students are incapable of improving the system. They work on their journals part-time while taking full class loads, looking for jobs, and often participating in other student organizations. Students lead their journals for just one year—barely enough time to figure things out, much less reform them. So why don't the law school administrators and professors use their power to fix things? As Posner knows (he founded the peer-edited Journal of Legal Studies), editing is often tedious work that takes long hours. The truth is, it's a lot more interesting for academics to teach, write, present papers, serve as expert witnesses, dabble in litigation and, if you're a real star, serve as an appellate court judge. Law professors gave birth to the law review system. They could reform it. But most are content to let it live because without it, their workload would increase and become a lot more trivial.

C. Scott Andrews
Senior Articles Editor
California Law Review
Berkeley, Calif.



As a former law review editor, I agree with much of Judge Posner's critique of law reviews—especially his point that editors' preoccupation with trendy legal issues often comes at the expense of paying attention to some important legal topics that are rarely written about. I admit that I often failed when confronted with vast manuscripts on thrilling topics such as "Judicial Review and Appeals as Alternative Remedies."

Looking back I realize that as student editors, my colleagues and I were ill-equipped to assess the merit and utility of the submissions we received. Sure, we had able faculty supervisors, but we were not graded on our work, and the whole exercise lacked the urgency that assessment might have created.

Law faculties' "taking back" the law reviews, as Posner suggests, might improve things. But it would also deprive students of a useful experience. I suggest that editing and managing the law review be made a part of the curriculum, assessed like any other course. That way, students would have more incentive to give it their best shot.

Ben Potter
Melbourne, Australia


This is one of the few times in my professional career when I am inclined to admit that I agree with Judge Posner. Imagine if the New England Journal of Medicine were edited by second-year Harvard Medical School students. The fact that legal journals are student-run suggests that legal academics are not entirely serious about their written work, and that legal scholarship is not really the basis of a science. A reconsideration of the system seems warranted.

As flawed as the system is, there is at least one advantage worth preserving. Because of the plethora of reviews in publication, authors can be assured that almost anything reasonably well-written by an academic—whether tenured or not, whether at a major or lesser law school—is likely to get published somewhere.

And since most law reviews are all part of one large searchable database, it is fairly easy for the cream to rise to the top over time. Anyone can contribute and the marketplace of ideas selects the best ideas. One would presume that Posner, of all people, would see the advantage of such an approach.

Stephen F. Diamond
Assistant Professor of Law Santa Clara University
Santa Clara, Calif.



I disagree with Judge Posner's conclusion that the saving grace of serving on a law review is the training it provides. Law reviews may teach meticulousness—no doubt a good skill for us lawyerlings to pick up—but the real sin of law reviews is that they get in the way of education. Rather than fretting over citations and parentheticals, law students would be better served if they used that time working closely with professors, doing externships for practical experience, or spending time on their own writing and research. What other profession takes its purportedly top students and, rather than challenging them to develop advanced skills, squirrels them away in the library to turn them into glorified copy editors, fact checkers, and typists?

Maura Dundon
Law student, Columbia Law School
New York, N.Y.



LAUDING LESSIG

As someone involved in the Free Software Movement for over a decade, I've become one of Professor Lawrence Lessig's followers, as described in your recent piece about him ("Marxist-Lessigism," November|December). Lessig's most influential idea came from his 2000 book Code and Other Laws of Cyberspace, where he said that software creates the rules—the form of law—that govern computers. Many of us in the software industry who agree with this idea have fought for accountability in this new form of law. But by linking Lessig and his followers with Marxist intentions, your article incorrectly suggests that we are presenting something that is in opposition to capitalism, democracy, and freedom.

Lessig supporters want to see innovation and creativity flourish in a free-market capitalist economy. Our opponents—those who push for greater control over intellectual property—seek to protect incumbent centralized control at all costs. Our system represents the balance required of a democratic free market embracing the future. While the system Lessig fights against represents autocratic control that protects the past, it is clear to me which of these two camps is the real anticapitalist regime.

Russell McOrmond
Ottawa, Ont., Canada


In his recent article "Marxist-Lessigism," Dan Hunter made a fundamental mistake in his analysis of Professor Lawrence Lessig's ideas and of copyright issues. The public domain is not a side effect of copyright law, rather it is the reason for its existence. Copyright is a limited monopoly granted by the law to further the arts and sciences. The founding fathers created a system that would benefit creators as well as society by granting creators a limited time to profit from their works. The founders realized that the benefit to society would be realized when a creative work lost its copy protection.

Hunter pointed out Disney's fights to extend its copyright protections. Disney has benefited tremendously from public domain works—relying on authors like Rudyard Kipling and Robert Louis Stevenson. Snow White was in the public domain only a year when the famous movie was made by Disney. Now that Disney has reaped the benefits of the public domain, it wants to change the rules. It fears a non-copyright protected Snow White would create a financial loss of so-called intellectual property assets. But the Constitution does not turn copyrighted works into property. Despite the rhetoric from trade groups for the movies and music recordings, copyright violation is wrong but not the same as stealing property.

Tim Dion
San Jose, Calif.


MAP QUEST

In her article on election law, Professor Heather Gerken discussed the frustrating ways in which politics can have an impact on election law ("Lost in the Political Thicket," November|December). Chief among these frustrations is gerrymandering. Maps of gerrymandered districts look wrong for the same reason that they are wrong: They violate the principle of localization that is so important in district elections by arbitrarily separating neighbors in the same towns while joining voters living far apart and often in different communities. The partisan preferences that win out make districts look strange on maps because of the odd shapes that result—salamander- and dragon-shaped districts, for instance. Gerken suggests that lawmakers might create nonpartisan commissions to regulate the electoral process and end gerrymandering. But I offer a suggestion that cures the underlying evil by attacking the symptom.

How about this rule: The sums of the lengths of district boundaries must be kept to a minimum. With certain mathematical considerations, such a rule, put into law, could best be applied by a computer program. So why bother with commissions?

Lothar Weiss
Presiding Judge at the Court of Appeals for Berlin
Berlin, Germany



Letters to the editor should include your name, address, and telephone number and can be sent to letters@legalaffairs.org or Legal Affairs, 254 Elm Street, New Haven, CT 06511. We are unable to publish all letters and may edit letters for length and clarity.

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