Fixing Law Reviews
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.
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