Wednesday, October 27, 2004

Law Reviews

Against the Law Reviews is the title of a recent piece by Richard Posner. The sub-title: "Welcome to a world where inexperienced editors make articles about the wrong topics worse."

It is a scathing article, much of it accurate. But I have a few quibbles. Take what Posner says about the rise of interdisciplinary 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. But—and this is true not only at the leading law schools—many 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, linguistics—even 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.* * *

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.
* * *
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 well—articles that criticize judicial decisions or, more constructively, discern new directions in law by careful analysis of decisions.
I agree that (1) articles purely about the law are more likely to be handled well by student editors, (2) that student editors are likely to make bad decisions both as to the publication and editing of interdisciplinary articles. But I don't think that the inadequacies of law reviews have anything whatsoever to do with "marginalizing the kind of [non-interdisciplinary] legal scholarship that student editors can handle well." Rather, I think that interdisciplinary scholarship has arisen because of the demands and interests of faculty, who themselves provide many indications to law review editors that interdisciplinary approaches are "hot." If faculty members didn't write or expect to read interdisciplinary articles, that would be the end of that.
[Doctrinal] 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.
Again, this is true -- and it has nothing to do with the characteristics of law reviews, but with the interests of faculty.
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 reviews—law 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.
Again, this is true, but it merely mirrors the fact that law professors themselves are more likely to write articles about "hot" topics than about boring topics. For some reason, people -- whether professors or students -- always seem to take more interest in subjects that are interesting.


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