Tuesday, July 31, 2012
A Proposal for Reform of the Law Review Note: The Reactive Model
Ok, it's not really a proposal -- just some thoughts that I had in connection with my previous post and the comments thereto. But here's what I have in mind.
Often enough, students tasked with composing a note will have a few general ideas about what interests them. "I want to write about capital punishment," or "I want to write about abortion," or "I want to write about religious liberty." And so as an advisor, I feel that my job is to increase the level of magnification. "What specifically do you want to write about?" "What will be the particular point that you want to make?" And in some ways most importantly, "Whom are you reacting against?" The trouble is that it can happen that students don't know the answers to these questions. Sometimes they haven't yet taken a course in the specific subject of their interest (or they've covered it quickly) so they aren't yet in a position to answer.
The job of the advisor would be to enable students to get to the position where they could answer these questions. For example, suppose someone says, "I want to write about religious liberty." After some questioning, it turns out that the student is (a) interested in the Establishment Clause; (b) interested in the issue of legislative prayer; and (c) takes a generally skeptical view of the practice. As an advisor, one is now in a position to recommend, say, five articles or books related to that specific issue. Not more than five at this stage -- exactly five, and five which represent a nice spectrum of opinion on the issue from established voices (e.g., Laycock, McConnell, Koppelman, etc.) and important new voices (e.g., Chris Lund's terrific piece).
One would send the student away with the following instructions: read these 5 pieces, look up some of the recent cases that Lund cites and read those, and find a point of reaction which can be developed into a short piece. Just one reaction on a narrow issue. Please don't try to outdo Lund or Laycock or whomever -- just pick a single point of disagreement. And now think about structuring an article around that point of disagreement. You don't need to advance a new theory of the Establishment Clause, or even of legislative prayer. The point of your piece will be to contest some specific idea within the limited confines of the debate as it is being engaged by scholars and courts.
After the jump, some thoughts about the advantages of this model, as opposed to the more traditional model of the law review note.
- The problem of having an idea of what to write about would be mitigated, and in such a way that the student would still be writing about something that very much interests him or her.
- The problem of narrowing the idea down to a manageable size would be mitigated. As I say in one of the comments to the previous post, I have found this to be one of the most difficult challenges for students. Providing greater structure to students in this process would be helpful.
- The selection of topic would occur through engagement with other scholars and writers, rather than through the process searching out a topic that nobody has written about (let alone hoping very much that nobody has ever written about it).
- The literature on a topic would be enriched in a useful and sensible way -- a student may not be capable of offering a grand theory of the Establishment Clause (and we have plenty of those anyway), but after a certain amount of reading, he or she will be more than capable of offering an intelligent discrete reactive analysis on a specific point.
- One would avoid a glut of student papers on the same circuit split issues. As James Grimmelman points out in the previous thread, students seem to be writing about the same things. One possible reason is that there just aren't that many interesting circuit splits in any given law review note topic selection cycle. But once freed from that bond, there are an infinite number of interesting issues to write about.
- Students would be introduced to the world of legal scholarship in a way which makes clear to them the value and usefulness of much that legal scholars do for the world of practice.
- Following from 6, eventually more and more skeptics will become aware of the richness and diversity of legal scholarship out there.
There are probably downsides to this approach. It requires more work on the part of the advisor up front. It presumes that the student is doing something more than describing the lay of the land (see Bruce Boyden's comment). And perhaps some law reviews do something like this already.
But I think the reactive model would be an improvement -- for the students' own writing experience most especially.
Posted by Marc DeGirolami on July 31, 2012 at 01:29 PM | Permalink
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The vast vast majority of student notes serve no purpose beyond the resume. Students in their second year of law school are rarely equipped to produce meaningful scholarship, particularly when edited by third- year students. The only time notes might be useful is when they survey cases and highlight a direction in the law without making any law reform proposals.
Posted by: Ms | Aug 1, 2012 11:13:48 AM
Thank you for this helpful and specific post. I'm planning to share it with colleagues, students, and law review editors.
A few brief thoughts intended as additions to -- rather than amendments of -- a reactive model.
(1) I wish more students wrote book reviews instead of notes. The project can be just as useful in terms of familiarizing a student with a relevant literature and with the mechanics of doing legal research, and students can make useful contributions to a pre-existing legal discourse. I think this sort of project would harmonize nicely with the advantages of the reactive model.
(2) I think there are useful and interesting student-note-sized empirical projects that students can do (both qualitative and quantitative). For example, a student might undertake a survey of each state's version of a particular statute; or might interview stakeholders in a particular issue (for a nice example of the latter, see Norm Spaulding's piece, The Prophet and the Bureaucrat: Positional Conflicts of Interest in Service Pro Bono Publico, 50 STANFORD L. REV. 1395 (1998)).
(3) I disagree with the idea that the vast majority of student notes are just resume filler. Even notes that aren't widely read provide students with an invaluable opportunity to improve their legal research skills. They also teach students to think normatively about legal issues, rather than only viewing themselves as legal technicians whose sole responsibility is to get the result the client wants. Moreover, many student notes are quite useful to both academics and practitioners, and some even get cited by courts. Often a recent student note is a good place to start researching a topic with which you aren't very familiar; it's certainly not guaranteed to be comprehensive, but it can provide a starting point for other research.
Posted by: Nancy Leong | Aug 1, 2012 12:48:01 PM
Thanks to Nancy and Ms for comments. Nancy's point about book reviews is exactly right and very smart, I think. It's often the case that a review can be part descriptive and part reactive, so it's a good place for an inexperienced person to start to work through what legal scholarship is all about.
Posted by: Marc DeGirolami | Aug 1, 2012 3:03:46 PM
I think the reference to "exactly 5" sources is a very good one.
Posted by: Thomas | Aug 1, 2012 9:39:48 PM
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