Against the Law Reviews? Readers Respond to Posner
Wyatt Earp Takes the Stand By John Swansburg
Fireside Chat of the Century By Iain Currie
Against the Law Reviews By Richard A. Posner
Against the Law Reviews
Welcome to a world where inexperienced editors make articles about the wrong topics worse.
IN ACADEMIC LAW, AS IN MOST ACADEMIC FIELDS, the principal vehicle for the publication of scholarly work is the scholarly journal. But in other academic fields, except law, the most prestigious journals are edited by seasoned specialists, usually professors, who have had years of experience both as editors and as scholars in the field covered by the journal.
Not only that, but in deciding what to publish, the scholar-editors usually are strongly influenced by the advice they receive from other professors, to whom they refer the submitted articles for peer review. The reviewers write comments that explain their recommendations for whether to publish the article and that make criticisms and suggestions, which are forwarded to the author, usually anonymously. Even when the recommendation is favorable, comments made by the peer reviewers and the journal's editor will generally induce significant revisions by the author of the submitted article. Neither the editor nor his staffif the editor has a staffwill pay much attention to the author's style or check the author's citations. But because journal space is usually quite limited in relation to the number of publishable articles, particularly since the issues come out quarterly or less often, the editor will often insist on the author's shortening his or her article.
This process takes a long time and, if an article isn't accepted by the first journal where it's submitted, it can take even longer, since the vast majority of scholarly journals forbid authors to send an article to more than one journal at a time. But the reviewers' comments will often enable a significant improvement in the article.
The system of scholarly publication in law is starkly different. With a few exceptions, law reviews are edited by law students rather than by professors or other professionals. The law reviews are numerous, are published bimonthly or at more frequent intervals, are edited without peer review, and are seemingly unconstrained in length. Their staffs are large, but the members, being students, are inexperienced both in law and in editing. With such abundant manpower and no reliance on peer review, law reviews do not forbid simultaneous submission or insist on brevity, and the interval between initial submission and final publication is much shorter than in other scholarly fields. The size of law review staffs enables them not only to check the author's citations but also to make many substantive comments and to engage in line-by-line copyediting.
This systemso strange, even incomprehensible, to scholars in other fieldsfirst emerged in the latter part of the 19th century, when legal scholarship was primarily a professional rather than an academic product. Its primary aim was to serve judges and practicing lawyers, rather than other professors, by offering careful doctrinal analysis, noting, for example, divergent lines of authority and trying to reconcile them. Given this orientation, the reviews hewed to the conceptual framework of legal practice and adjudication, activities organized around legal doctrine to which the students had been introduced on their first day in law school and in which the best of them had become fairly expert by the end of their first year of study. They were competent editors of law professors' articles with an incentive to do a good job. They wished to demonstrate their abilities to each other and to the faculty, and the law school administration had an incentive to promote a quality publication that would reflect credit on the law school.
The system was not ideal. Because the student editors spent, at most, two years as law review staffers, all part-time, they did not become experienced editors. And since no self-respecting law school could afford not to have a law review, competitive pressure among law reviews were weak. There was no fear that a review that did not perform well would be driven from the market. So law review editors could indulge their whims, and thus, for example, publish the "tenure article" of a junior professornot because it was a good article but because he was a popular teacher or the editors felt sorry for him and didn't want to see him fired.
The system of student-edited law reviews, with all its built-in weaknesses, has persisted despite a change in the character of legal scholarship that has made those weaknesses both more conspicuous and more harmful to legal scholarship. Most articles by law professors today are still, as they were a century ago, rather narrowly, conventionally doctrinal. Typically, they criticize a key case or lines of cases as inconsistent with doctrine emerging from other cases. Good law students can evaluate and improve such articles today as always. Butand this is true not only at the leading law schoolsmany law faculty today have, for good or ill, broken the doctrinal mold.
Their work now draws very heavily on sources other than legal doctrine, whether it is economics, history, political or moral philosophy, psychology, statistics, epistemology, anthropology, linguisticseven literary theory. The use of insights from these fields in analyzing law has given rise in recent decades to a cornucopia of interdisciplinary fields of legal studies ("law and . . . " fields), ranging from law and economics (the largest and most influential) to feminist jurisprudence and critical race theory. Except for the rarefied set of Ph.D.s who go to law school for a J.D., the disciplines on which these fields draw are generally not ones about which a law review editor will be knowledgeable, except by accident. This might not matter much if the analytical core of such fields were legal, but it is not. "Law and economics," for example, is the application of economic theory to law, not the application of legal reasoning to economics. So the law review editor cannot get much mileage from what he or she has learned about legal reasoning.
Submissions in "law and . . . " fields magnify the bad effects of the inexperience of student editors and their failure to use peer review to separate the wheat from the chaff. Apart from acute problems of quality control, neither author nor reader is likely to benefit from the editing process. Because the students are not trained or experienced editors, the average quality of their suggested revisions is low. Many of the revisions they suggest (or impose) exacerbate the leaden, plethoric style that comes naturally to lawyers (including law professors). According to an article written by James Lindgren at Northwestern Law School in the Chicago Law Review, one law review editor "thought that many uses of the word 'the' in an article were errors. Following this bizarre rule of thumb, he took as many 'thes' out of manuscripts as he could, thus reducing many sentences to a kind of pidgin."
The author is also likely to suffer, because the student editors, having a great deal of time and manpower to devote to each article, often torment the author with stylistic revisions. (These are to be distinguished from correcting erroneous citations; that is a genuine though modest service to scholarship.) To student editors, the cost of an author's time is zero, and the author is usually subjected not to one, but to two or three rounds of editing. And the editors do not limit their suggestions to style. On the side of substance, their especial preoccupation is with trying to maximize the number of footnotes, citations, and cross-references in order to create the impression that everything in the article is proven fact. The student editors also insist on inserting parenthetical summaries of cited references, even when the reference is to an entire book (e.g., Plato The Republic (sketch of proto-communist society ruled by philosophers); Sophocles,
THE RESULT OF THE SYSTEM OF SCHOLARLY PUBLICATION IN LAW is that too many articles are too long, too dull, and too heavily annotated, and that many interdisciplinary articles are published that have no merit at all. Worse is the effect of these characteristics of law reviews in marginalizing the kind of legal scholarship that student editors can handle wellarticles that criticize judicial decisions or, more constructively, discern new directions in law by careful analysis of decisions. Such articles are of great value to the profession, including its judicial branch, but they are becoming rare, in part because of the fascination of the legal academy with constitutional law, which in fact plays only a small role in the decisions of the lower courts. Law reviews do extensively analyze and criticize the constitutional decisions of the Supreme Court, but the profession, including the judiciary, would benefit from a reorientation of academic attention to lower-court decisions. Not that the Supreme Court isn't the most important court in the United States. But the 80 or so decisions that it renders every year get disproportionate attention compared to the many thousands of decisions rendered by other appellate courts that are much less frequently written about, especially since justices of the Supreme Court are the judges who are least likely to be influenced by critical academic reflection on their work.
I have spoken thus far of the law reviews as publishers of scholarly articles submitted to them. But in addition, of course, they publish articles (usually and misleadingly called "notes" or "comments") written by the members of a law review's staff. The opportunity to publish provides valuable experience. This, plus the rising quality of law students, may explain the enormous increase in the number of law reviewslaw schools that used to have just one now often have two and sometimes three or four. My only criticism of the student-written portions of the law reviews is that the students have a propensity to write about "hot" subjects, like partial-birth abortion, gay marriage, and capital punishment, to the neglect of equally important commercial subjects that cry out for informed doctrinal analysis.
But the need for reform centers on law reviews' role in publishing professorial articles, and the biggest obstacle to reform is that the present system provides useful training for law students and signals the quality of particular students to prospective employers. The law review editors tend to be the elite of the student body; prospective employers know this and so the elite students tend to be sorted to the elite firms. This service function of law reviews is so important, and the rapid turnaround of submissions is so valued by law professors, that I do not anticipate fundamental reforms, desirable as they may be in the abstract. 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.