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November|December 2004

Against the Law Reviews? Readers Respond to Posner

This is perhaps one of the few times in my professional career when I am inclined to admit that I agree with Judge Posner. As I once put it in a faculty discussion of this issue, imagine if the New England Journal of Medicine were edited by second year Harvard Medical School students. My favorite "horror" story involves a battle with an anonymous student editor over the use of "Id." more than once in a paragraph. Student controlled journals suggest, in other words, that legal academics are not entirely serious about their written work, that legal scholarship is not really the basis of a science, and not really capable of objective testing. Thus, a reconsideration of the system seems warranted.

On the other hand, it does seem to me there are some singular advantages to the the system: since the plethora of reviews available insures 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. In a sense the system resembles open source software—anyone can contribute and the market place of ideas selects the best ideas. One would presume Judge Posner, of all people, would see the advantage of such an approach.

Finally, it is my understanding that in the world of "hard" sciences such as physics refereed journals are the last place that scholarship appears. Instead, papers are published online, available to anyone who cares to download them, and this leads to vigorous debate and criticism of research results in advance of "publication" in a printed journal. Interestingly, the efforts of the Social Science Research Network and the Berkeley Electronic Press working paper series point in this direction. These are largely open as well and quite author friendly. It seems in fact that we have a competition of "forms" of publication underway in legal academia and as with innovation in other "industries" it is likely that over time a new equilibrium may emerge.

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

Judge Posner rightly criticizes student law reviews for inserting too many citations and making unnecessary stylistic changes. There is no defense for the latter charge, and indeed the law reviews ought to make stylistic changes sparingly, only when absolutely necessary.

As for the former charge, the situation is a bit more complicated than Judge Posner makes it out to be. It is precisely because the law reviews are entirely student-run that they feel the need to provide support for every factual or legal assertion made by an author. Student editors spend an enormous amount of time gathering every source cited by the author, then checking each one to make sure it supports what the author is saying. They do this because they are students and often lack the experience necessary to make snap judgments about whether the author is correct. Most of the time, the "cite-check" confirms that the author is appropriately using a particular source. Occasionally, however, the wrong source is used, a citation is incorrect, support is not provided where it ought to be, or a factual or legal assertion is just plain wrong. I think most authors value this intense review because it guarantees that they will not publish a piece marred with errors. Indeed the fact that many authors use student research assistants when writing articles opens the door to such errors, and it is the student law review editors who provide the best defense against publishing them. Obviously some editors may get carried away with their function and become a nuisance. Ultimately student editors must exercise good judgment when deciding whether an assertion needs support and whether the support provided by the author is sufficient. All of us ought to avoid adding unnecessary or questionable support, or inserting strings of "See id." footnotes to articles simply for the purpose of having a footnote after every sentence. Hopefully Judge Posner's criticism will cause student editors to make these decisions more carefully.

When student law reviews do seek to be cited by a court it is invariably the Supreme Court, and given the competition such citation is unlikely. There may be a hundred or more articles published in anticipation of the Supreme Court's consideration of an issue, only a few of which the Court will cite. Certainly the student law reviews ought to take note of these distortions and strive to serve the whole legal profession, of which the legal academy and the Supreme Court are only parts, albeit rather important parts.

I hope student law review editors will consider Judge Posner's valuable criticisms and seek to better fulfill their duties to the legal profession. Ultimately that is the most effective way for us to remain independent and preserve our unique and important role.

Justin J. DeCamp
Editor-in-Chief, Vol. 33
Hofstra Law Review

Whatever the faults of law reviews, it is curious that Judge Posner disapproves of law students doing armchair philosophy, economics, and literary theory. All these fields have benefited from his own amateur contributions.

David Noll
Palo Alto, California

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