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Monday, October 21, 2013

Courts and Law Reviews

To pile-on the posts by Jack and Matt: Regardless of whether courts (particularly SCOTUS) are citing to law review articles, they are listening to and relying on the arguments of legal scholars. While these arguments are coming to them in amicus briefs rather than articles, that is a matter of format rather than substance. And many an amicus brief begins as, or eventually becomes, a law review article.

Take this month as an example. In argument in Madigan v. Levin, the justices asked several questions about an amicus brief authored by Steve Vladeck and signed by a number of Fed Courts scholars, including me.  Steve made those same arguments in an article in Green Bag last winter. And in Atlantic Marine Construction Co. v. District Court, the Court expressly ordered the parties to discuss an amicus brief by Duke's Stephen Sachs and asked numerous questions about the brief during argument. Depending on how the Court decides Atlantic Marine, perhaps Stephen will turn those arguments into an article.

Posted by Howard Wasserman on October 21, 2013 at 10:41 PM in Howard Wasserman, Law and Politics | Permalink


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I think it is helpful in this debate, if that is what is going on, to distinguish between articles that are of low quality from articles that address topics of limited or narrow interest, which I'll call subject matter concerns.

As I hear the complaints from the bench and bar, it is a complaint about the subject matter of legal scholarship. That is to say, judges and lawyers tend to report that much of legal scholarship does not aid them in their adjudicatory or representational tasks.

As I hear other complaints, mostly from academia, the rap is that a high proportion of legal scholarship is of low quality.

These are separate beefs. A piece on the epistemological assumptions implicit in body of law X might be of superior quality, yet not responsive to the needs of the bench and bar. Or a piece may (or at least attempt) to navigate a path through ERISA preemption in a manner readily deployable by attorneys, but be of low quality. Etc. etc. etc.

I should think these very different complaints --- and their relationship to student-edited reviews --- deserve distinct responses.

Thus, if one's primary objection to law reviews is that the subject matter they address is irrelevant to the bench and bar, then I doubt that removing the student-edited aspect will ameliorate that concern. Indeed, it could make it worse.

If one is concerned primarily with the quality of pieces, perhaps changing the student-editor aspect would address that concern. Then again, I am not sure. Indeed, the complaint itself assumes that the professoriate is producing low quality scholarship, why would we now assume these low-quality producers will demand high-quality (or recognize it) from others.

But even if peer-review would raise quality in the aggregate, this would come at a cost. The complaints against peer review are many. Looking at the law context, a few seem most salient. Peer-review is very slow. If one feature of a law reviews, as compared to other academic literature, is that they address relatively timely topics, this cost could be high. Further, peer review tends to privilege the schools of thought of the reviewers, closing doors to scholars challenging that school. I think in law this concern would be especially troubling. Third, in an SSRN, pre-publication era coupled with the fact that everything finds a publication home somewhere, do we really need the credentialing devise of publication at "Law Review X" to signal quality, or can crowd sourcing etc. do that? (Perhaps, download courts etc.). I doubt this matters as much now. In short, I'd want to know what peer review really gives as an advantage and at what costs before I jump on a bandwagon. (Further, who is volunteering to review the scores upon scores of submissions to the top reviews?).

Finally, for my two cents, I think a bigger problem with law reviews is that they are all generalists as opposed to subject matter specific. A subject-matter-focused journal, even with student editors, could build institutional knowledge about a field, attract strong faculty mentors (where as reviewers or not) in the field, attract a more interested readership, engage in actual apples-to-apples comparisons of articles in similar fields, etc.

Posted by: Lou Mulligan | Oct 23, 2013 2:39:52 PM

Much of everything is incomprehensible drivel. Many briefs are incomprehensible drivel. If that was the point of Liptak's column, it's not much of a point.

Posted by: Bruce Boyden | Oct 23, 2013 12:33:03 PM

Your post sounds a little bit like responding to the law school scam crowd by pointing out that Yale and Harvard students all get good jobs.

The point isn't really that there is no useful scholarship to be found -- of course there is. The point is that much of legal scholarship is incomprehensible drivel, and that such scholarship is what determines prestige within the academy, hiring decisions, and so on. Although I admire professions who write amicus briefs that are noticed by the court, let's not pretend that writing an amicus brief or a well-crafted doctrinal article is actually the way to move up within the academy. Rather, one must come up with some really cool idea, preferably useless to legisators/administrators/judges and impossible to implement in the real world, but which endeavors to radically re-shape how the 15 people who read the article understand a particular topic.

Posted by: juniorprof | Oct 22, 2013 4:25:20 PM

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