John G. Browning’s recent essay on Inside Higher Ed fires many of the traditional bullets at student-edited law journals: They are overly theoretical, redundant, costly, and despite being edited by 20-somethings, are clumsily adapted to the digital age. I serve as editor-in-chief of Cardozo Law School’s Journal of Conflict Resolution, apparently one of these outmoded publications. Like most student editors, I’ve become accustomed to reading criticisms like these. Similar sentiments have been published in The New York Times,The Atlantic, and Legal Affairs. Browning is in good company.
Critics have their hearts in the right place. But their arguments are flawed in two ways: First, they dramatically overgeneralize the varied landscape of student-edited legal journals and the articles they publish. Second, critics view the primary mission of law journals as helping appellate judges and practicing lawyers. In fact, students are the primary beneficiaries of law reviews. Practicing lawyers and judges are important audiences too, but not as central as critics claim.
Nailing Down the Complaints
Criticism of law journals, like criticism of lawyers, is a time-honored American tradition. The common argument goes like this: Law journals publish bizarre theoretical pieces that are totally removed from real-world legal practice. As journals proliferate, they are becoming increasingly useless to practicing lawyers, and are failing in their primary mission of influencing judicial opinions. Browning makes his case, like many critics do, by citing some pompous-sounding topics of recently published pieces.
The vision of useless “theory” articles gained traction last year with a comment by U.S. Supreme Court Chief Justice John Roberts: “Pick up a copy of any law review that you see,” he said, “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.”
This system persists, say the critics, because law professors are either innately interested in these abstruse topics or merely write under the pressure of the publish-or-perish system. More cynically, law schools themselves have a secondary incentive for subsidizing law reviews (which often operate at significant financial losses). Schools aim to build their reputations in specialty fields. “Reputation” is often code for the infamous reputational index on U.S. News & World Report -- a ranking of schools’ programs by professors in a particular field. If a school hopes to build its rank in taxation, for example, it might consider creating a tax law journal. Such a journal would allow tax scholars to publish with the school, probably bring such scholars to campus to participate in conferences, and generally increase the reputation of the school among experts in the field.
In short, critics cast law journals as nothing more than vehicles for prestige for schools and tenure for professors.
A Response: All Theory and No Practice?
To start, critics like Browning severely overgeneralize the landscape of law reviews. All student-edited legal publications are lumped together into a monolithically useless heap. In the minds of critics, these journals all publish on obscure theories of legal philosophy and hermeneutics. This is simply not the reality.
Yes, some journals are “theory-heavy”—the Yale Law Journal, William & Mary’s Bill of Rights Journal, and Washington University’s Jurisprudence Review, to name a few. But average law reviews and most specialty journals (journals that focus on particular areas, like real estate or intellectual property) are keenly interested in publishing relevant scholarship. Don’t believe me? Visit a few law journal websites and scroll through their recent tables of contents. Sure, you’ll encounter the occasional oddball pretentious titles. But you’ll also find articles firmly grounded in reality — articles that, as Sherrilyn Ifill of the University of Maryland said, “offer muscular critiques of contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decision-making on how law develops in the courtroom.” Indeed, many law journal articles are written or co-written by practicing attorneys.
My own journal is a good example. We publish exclusively on arbitration, negotiation and mediation—all very practical processes for problem-solving, particularly in a world where the vast majority of cases settle out of court. To the extent that we publish “theory,” the articles discuss innovative designs for new adjudicative or dispute resolution systems.
Another rebuttal. Critics of law reviews complain that we’re failing at our key mission — being cited by appellate courts. Since when is judicial citation our raison d’être? Don’t get me wrong: I fantasize about Justice Kagan going to sleep with a copy of the Journal of Conflict Resolution on her nightstand before hearing a case arising under the Federal Arbitration Act. But contrary to the assertions of critics, I have never met a fellow law journal editor who selects articles for publication solely (or even predominantly) because of the likelihood that a judge somewhere may someday cite it. We choose articles that are thought-provoking and cutting-edge, but not merely because we desire judicial attention.
A corollary point is that law reviews do not necessarily need to be cited by courts in order to aid practicing attorneys. Attorneys facing specific legal situations often search journal databases for a starting point. Articles they discover serve as both invaluable synopses and comprehensive bibliographies of relevant precedents and statutes. That sort of impact is very difficult to measure unless the article itself is cited by a judge. (And since the great majority of cases settle before a judge ever sees them, how reliable a metric are judicial citations anyway?).
Critics underscore the role of law reviews in aiding practicing attorneys. This is surely one of their important functions. But the truth is, journals also exist for the benefit of their student editors. Students hone their legal research and writing skills by doing careful editing, citation formatting, and proposition-checking. They produce their own publishable pieces of original scholarship, usually commentaries on recent cases. Third-year students have the additional experience of managing a large team, controlling a significant budget, and interacting with leading scholars from around the world. Even if no appellate judge ever cites an article, the average student will still have grown tremendously by editing it.
Browning worries that student-edited journals are not useful for practicing attorneys. I disagree. But even adopting his assertion, attorneys still have access to innumerable attorney-edited journals published by bar associations across the country. Student law reviews are not their only resource, or even necessarily their best resource.
A Concession: An Archaic Publishing Process
Browning is absolutely right in one respect: the current model of journal publishing is entirely outdated. (I suspect this is true for non-legal academic journals too). Right now, law reviews submit content to one of the handful of specialized law review publishers. Those publishers print the content and mail our book-like volumes to subscribers. The publisher also sends that content to Westlaw and LexisNexis, the two major online legal research databases. Journals charge a small subscription fee and, sometimes, a content reuse fee if their articles are reprinted in textbooks. West and Lexis charge a great deal more. Most journals operate at a loss.
What is peculiar about this system is that many journals also publish their content as PDFs on their websites. PDFs, of course, are searchable by Google and easily findable through Google Scholar. For free. In the 21st century, I have absolutely no idea why any library or practitioner subscribes to the print edition of any law journal. (Though don’t repeat that to our valued subscribers). And I have absolutely no idea why any law school wastes money subsidizing the cost of printing and mailing them. (Though don’t repeat that to my generous dean).
The answer is probably about competition; no law school wants to be the first to go “online only.” If prestige is truly the obstacle — we are talking about lawyers here — the solution is an industrywide collusion. If deans from a collection of law schools discussed this, perhaps during an Association of American Law Schools (AALS) conference, they could reach a disarmament agreement. Depending on the number of journals a school operates, this shift could easily save five or six figures annually.
As the digital age moves along, law reviews should reject not only print publication, but also the very idea of distinct “volumes” and “issues.” What is an “issue” of a law journal but a collection of articles on a random assortment of current topics? Few issues have a single unifying theme that merits their being bound together in a book format. Law journals should move to a model of rolling deadlines more akin to digital journalism. Scholarship can be published whenever it is ready, and at a much lower cost.
If the goal of law journals is to influence appellate judges in their day-to-day decision-making, perhaps they are failing. But most journals don’t (or shouldn’t) adopt that as their sole metric for success. A better metric is what the students on the journal are gaining from the experience. Journals expose law students to truly complicated, confusing, complex writing. Some of that writing is terrible and pompous, some vivacious and sharp. Some is hackneyed, some is intellectually subversive and trailblazing. Thus, academic legal writing mirrors the mélange of actual writing — i.e., briefs, memos and judicial opinions — that attorneys will encounter throughout their careers.
Journals teach student editors to sharpen complex legal arguments, clarify language, format intricate citations, and work long hours to hone a final product. More sentimentally, the journal process reminds students that no legal doctrine is static. Law is subject to thinking and rethinking, argument and re-argument. Authority can not only be cited but questioned — by smart lawyers, through their writing.
There is so much to fix in modern legal education. Are student-edited law journals really so bad?
Brian Farkas is a third-year student at Cardozo School of Law and editor-in-chief of the Cardozo Journal of Conflict Resolution.
At a conference for the U.S. Court of Appeals for the Fourth Circuit in the summer of 2011, U.S. Supreme Court Chief Justice John G. Roberts, Jr. took a few potshots at legal academe. "Pick up a copy of any law review that you see," he said, "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." Roberts’ comments ignited a firestorm of righteous indignation among law professors, a number of whom were quick to point out the benefits of legal scholarship and the fact that the Supreme Court (including the Chief Justice himself) has cited law review articles in roughly one-third of its decisions over the last 61 years.
But Chief Justice Roberts has a valid point, and he’s far from alone in making it. In a 2008 speech, Supreme Court Justice Stephen Breyer observed that "There is evidence that law review articles have left terra firma to soar into outer space." Meanwhile, U.S. Seventh Circuit Court of Appeals Justice and intellectual heavyweight Richard Posner has sharply criticized law reviews for "the many silly titles, the many opaque passages, the antic proposals, the rude polemics, [and] the myriad pretentious citations."
The fact of the matter is that there is much that is wrong with law reviews, starting with their relevance. Ask a law professor for some of the chief reasons for writing law review articles (other than to abide by the "publish or perish" mentality of most law schools and universities), and he or she will likely point to the opportunity to be cited by a judge or an appellate court and, therefore, to become part of the law’s interpretation of a given issue. Yet, according to one study, 43 percent of the law review articles in the LexisNexis database had never been cited anywhere -- not in appellate opinions, not by trial courts, not even in other law review articles.
Why, then, do we even have law reviews? Because everyone loves a benchmark. In good job markets and bad, law students seek the credential of working on a law review in order to burnish their resumes. Law professors seek to publish their latest academic opus on the way to becoming tenured members of the faculty. And law schools point to the scholarly output of their faculty members as part of touting the institutions to prospective students, new hires, and donors, while ranking services such as U.S. News & World Report measure it as well. In some respects, this has resulted in a kind of intellectual arms race in which top law schools (and those aspiring to be) have neatly expanded their journal offerings to encompass a dizzying variety of subjects.
Consider this: according to the Current Index to Legal Periodicals, in 1960 there were 118 law reviews in the United States. Today, there are over 600. Georgetown alone has 11 journals, while my alma mater, the University of Texas School of Law, has nine. Over 10,000 articles are published each year by these academic journals, and the overwhelming majority of these articles will be rarely if ever cited. Only a fraction will influence judicial decision-making or advance the legal profession. Most will simply pad the resumes of the professors authoring them. This is hardly a new trend. Fifty years ago, legal educator Harold Havighurst astutely observed that "Whereas most periodicals are published primarily in order that they may be read, the law reviews are published primarily in order that they may be written."
Part of the reason why law reviews aren’t influencing judges, lawmakers, or practitioners as much as they should be can be discerned in terms of pure circulation numbers. For a generation, law reviews have struggled with dismal circulation. The Harvard Law Review, arguably the most prestigious and widely circulated law review, had a circulation of 10,895 in 1963–1964. By the 2010–2011 academic year, that figure had plummeted to 1,896.
Another reason for the failure of the law review mission lies in the same thing that has been sounding the death knell of the print medium for several years now: the Internet and the digital revolution. Discussion of cutting-edge controversies, significant court decisions, and debates over legal issues now take place in the blogosphere, which offers the immediacy, the broad audience, and the prospects for community reaction that no student-edited law review delivering an article months after its submission can hope to offer. For those who doubt that online outlets can possibly offer the same level of scholarly discourse, check out the discussion of the Supreme Court’s ruling on the Affordable Care Act (before pre- and post-decision) on sites like SCOTUSblog, Professor Eugene Volokh’s Volokh Conspiracy, or Professor Jack Balkin’s Balkinization. Legal blogs like the Volokh Conspiracy are not only providing commentary that is timely, but the nature of the medium forces commenters to be concise rather than rambling and pedantic. Not surprisingly, more and more legal blogs are being cited in lawyers’ briefs and judicial opinions.
Yet another reason why law reviews are in dire need of improvement is the content itself. Bryan A. Garner, arguably the preeminent authority on legal writing (and himself a distinguished research professor at Southern Methodist University Dedman School of Law), noted in a July 2011 New York Times op-ed that "Most legal scholarship is poorly written and is mired in nonpractical abstraction that few can understand and fewer still can benefit from." One look at some of the more esoteric titles — "Historic Injustice and the Non-Identity Problem: The Limitations of the Subsequent-Wrong Solution and Towards a New Solution," for example — confirms the validity of Professor Garner’s observation. One law review recently published a law professor’s opining about what rapper Jay-Z’s song “99 Problems” can tell us about Fourth Amendment doctrine on search and seizures.
Don’t get me wrong — I appreciate a clever, thought-provoking title as much as the next person. Titles are important; they need to capture the reader’s interest (not to mention the editor’s in the first place). For example, the area of organ donation law probably gained more interest with catchy titles like "She’s Got Bette Davis[‘s] Eyes: Assessing the Nonconsensual Removal of Cadaver Organs Under the Takings and Due Process Clauses" (90 COLUMBIA LAW REVIEW 528) or “You’ve Got to be Kidneying Me! The Fatal Problem of Severing Rights and Remedies From the Body of Organ Donation Law" (Brooklyn Law Review). And I have to admit, I chuckled at "The Internal Revenue Code as Sodomy Statute" (Santa Clara Law Review). However, too many articles have heralded the "death" of this doctrine or that, showcased an intra-academy dispute ("A Reply to Professor Smith," "What Is Wrong With Professor Jones’ Neo-Aristotelian Approach to Legal Relativism," and the like), or fallen into the category of what David Segal’s scathing November 2011 New York Times indictment of legal education called "highbrow edu-tainment."
Finally, another problem with law review articles is the price tag that accompanies legal scholarship. At a 2011 conference on innovation in legal education, Hofstra University School of Law professor Richard Neumann shared the results of a study he conducted concluding that the average cost of a law review article written by a tenured professor at a top-tier law school approaches $100,000. Neumann’s analysis factors in the salary and benefits for a tenured professor at a high-paying school, the fact that such a professor would typically devote 30 percent to 50 percent of his or her time to scholarship, and that such a professor typically publishes one article per year. Even articles written by non-tenured professors at less prestigious law schools, Neumann calculated, come with a price tag of between $25,000 and $42,000. In light of the research estimating that 43 percent of law review articles are never actually cited, Neumann concludes that such expensive research doesn’t necessarily make law students (who, after all, are funding faculty salaries with their tuition dollars) any better off. "At least a third of these things have no value," he says. “Who’s paying for that? Students who will graduate with six figures of debt.” Faculty time, according to Neumann, would be better spent in the classroom.
So how can we improve law reviews? For starters, let’s have fewer of them. One reason for the proliferation of law reviews showcasing seemingly every different perspective and interest group (except, perhaps, legal issues affecting left-handed Inuits) is our societal obsession with inclusion. The Yale Law Journal even has the position of diversity editor. What does a diversity editor do? Does she make sure that the editing process doesn’t rely solely on red pens, to the exclusion of other, equally worthy colors? Does a diversity editor establish quotas for work by contributors or varied ethnic, religious, national, and sexual orientation backgrounds? Or does she make sure that published submissions conform to a certain diversity agenda?
Making law review was once a distinction reserved for the select few. But in today’s “everybody gets a trophy” mentality, having more journals means more law students get editing experience and that coveted (albeit now somewhat diluted) line on the resume. Reducing the number of law reviews will make the path to getting published a more competitive and meaningful one; with fewer slots to fill, the authors vying for those slots will have to generate higher-quality work.
Second, let’s move the journals online or at least make sure that every law review has an online version in addition to its print incarnation. That will increase and broaden the audience. It will also improve the chances that judges and practitioners, who are already strapped for time, will be able to and actually use the articles. The online environment promises far more immediacy and interactivity; readers reward writing that is clear, concise, and above all useful and relevant to them by coming back.
Finally, let’s try to bring a more practical dimension to the scholarly work of law reviews. Writing in The National Jurist on "The Inferiority Complex of Law Schools," Professor William D. Henderson of the Indiana University Maurer School of Law stated that "a large proportion of judges and lawyers readily admit that the writing of law professors — the enormous output of student-edited law journals — has little or no relevance to their daily work." This, Henderson believes, is the product of an inferiority complex on the part of law schools, which struggle with the perception of being as much trade schools as part of the ivory tower.
Professor Henderson argues that there is nothing wrong with the goal of making better lawyers who will help solve society’s most serious problems, a goal requiring that law professors remain "connected to the world of practicing lawyers," and better able to "fashion frameworks and broker relationships." He advocates for this even though the "re-allocation of time and priorities may come at the expense of the arcane scholarship that we now produce in order to maintain perceived parity with other parts of the university."
I don’t propose to go as far as Walter Olson, whose thought-provoking article for The Atlantic said it all in its title: “Abolish the Law Reviews!” But the current system of legal scholarship is badly in need of repair, if it is going to remain true to its original mission. Law professors, law students, practicing attorneys, and judges alike should demand a less bloated, more relevant, and more accessible way of doing things. As Chief Justice Roberts chided later on in his comments at the Fourth Circuit conference, "[B]ut I do think that if the academy is interested in having an influence on the practice of law and the development of law, that they would be wise to sort of stop and think, is this area of research going to be of help to anyone other than other academics."
John G. Browning is a full-time litigator and a part-time law professor in Dallas.
Law school accreditation standards require every law school to use the LSAT or a comparable test in assessing every applicant for admission. This standard is unusual. There is, for example, no comparable requirement of an admissions test in the medical school accreditation standards.
A committee of the American Bar Association’s Section of Legal Education is reviewing the accreditation standards and proposing revisions. The committee has been unable to decide whether the requirement of an admission test should be retained. This inability to decide reflects a deep division among participants in legal education.
Some argue that the standard (which as a practical matter calls for the LSAT) ensures use of a test with demonstrable predictive value and ensures uniformity of assessment. But the standard has been criticized on many grounds. Some are technical and relate to drafting. Others concern its impact, especially as impeding student body diversity and encouraging costly competition on prestige. These criticisms are sound and important, and have convinced many that the requirement should be eliminated. Yet, there is an even more fundamental problem which has not been addressed: the standard is oblivious to the current critique of law schools — that they ill serve students as consumers of educational services.
The critique — sounded in newspapers, blogs, lawsuits, and elsewhere — is complicated and wide-ranging, but in essence comes down to this. There are two broad functions of higher education. One is to provide students with a path to intellectual and personal growth, preparing them to participate in society as informed and inquiring citizens and leaders. This is the liberal arts function. The second is to provide students with a path to a job or career. This is the vocational function. For a very long time law schools, although professional schools, have oriented their work toward the liberal arts function. The current critique begins with the charge that law schools have neglected the vocational function. In doing so, the critique continues, schools fail to deliver value to students as consumers — specifically, as consumers of educational services that should lead directly to a job or career.
In this light, consider the current accreditation standard. It requires a test of an applicant’s "capability of satisfactorily completing the school’s educational program." The standard focuses on student success in law school, rather than success after graduation. It is thus concerned only with the law school as an academic enterprise and implicitly holds schools accountable only for student achievement up to graduation. In this respect it treats a law school much like an undergraduate college. It is not surprising that the ACT and SAT may work as well as the LSAT in assessing capability for academic success in law school.
But a law school is not simply a post-graduate version of an undergraduate college, and cannot be concerned only with student intellectual growth. A law school exists to serve as a path to a job or career, and no law school can remain in business if it is not reasonably successful in helping move its graduates into satisfying jobs and careers. There is certainly no objection to law schools using the LSAT (or the ACT or SAT) as part of an admissions methodology, to the extent it helps evaluate capability for academic success. But to require such a test as an accreditation standard, and indeed to require only a test relating to academic success, promotes an outlook that ignores accountability for outcomes beyond completion of the three-year program. It promotes the very outlook and practices that have exposed law schools to withering criticism in the past few years.
Eliminating the requirement of the LSAT or similar test would be a strong signal to law schools. It would give law schools express freedom and implicit encouragement to consider in the admissions process the full meaning of student success, not only in the classroom but in careers beyond. Contrary to the fears of some, eliminating the standard would not signal an end to concern with academic ability or academic performance. Rather, it would signal that law schools and the law school accreditation system understand the full range of purposes and values underlying modern legal education.
Change is difficult. But law schools well understand that new outlooks and new modes of operation are essential if schools are to have continued influence and success. Eliminating a requirement that reinforces a too-narrow view of legal education would be a small, but powerful, step, in this necessary process of institutional adaptation and change.
Jay Conison is dean of the Valparaiso University Law School.