student editing and law review article form

As I noted in my previous post, I've found myself thinking anew about law reviews since my posting as faculty advisor of my school's general review. I want to think aloud a little in this post about the effect of the law review as a co-curricular student organization on the formal characteristics of law review articles. To be clear, I believe the students' efforts to edit and check our work are remarkable and herculean, and faculty and student authors alike benefit from the labor that editors expend without direct compensation. But that labor has secondary effects on our scholarship that we should consider.

Faculty complain, often bitterly, about the submission and review process. But if, like me, you find the median law review article (and, really, all but the exceptional ones) to be excessively long, repetitive, and dull, then, like me, you should think long and hard about how the current law review model, and the delegation to students of both selecting and editing our work, entrenches those characteristics.

Show the typical law review article to someone from another field and they stare at it in wide wonder. Forty to seventy journal pages, heavily and densely footnoted, almost invariably normatively-focused, the article finds a “problem,” summarizes existing and insufficient efforts to address the problem, and then offers the excitingly new, uniquely effective “solution.” Literature reviews of case law and academic work are protracted and largely repeat the excessive case citation and literature review that appeared the last time someone wrote on the same topic.

This is "tenure-worthy" (and hiring-worthy) scholarship; an author who strays from it risks not being chosen and published by the right student-edited journal, which means not getting hired initially, not getting promoted and tenured, not getting a raise, not moving laterally, etc. It is what student editors expect and demand based on judgment that is shaped by their individual interests and still-incomplete education and also by their understanding of what a finished product should look like when they are done editing and cite-checking it.

Fred Rodell famously complained about legal scholarship long ago. He laid the blame for what he viewed as law reviews' turgidity -- more than eighty years ago! -- on the academy and the profession. This is still no doubt true to a great extent. But it's important to consider as well how authors conform to our conception of what student editors expect an important, offer-worthy article to look like, and how the form that the editors will in turn shape during the editing and cite-checking process affects their selection decisions. Authors want to present submissions that look like what editors will expect and in turn put into production -- the squarely shaped, neurotically-sourced beasts unique to law reviews. This, despite the influx of PhDs from other disciplines and at least a claim that we are doing more interdisciplinary scholarship. Alternative publication opportunities abound, from books to online journals and journals in other fields to blogs and the like. But at most schools, the law review article is what gets you hired and promoted and tenured.

To be sure, most academic writing is turgid. But other disciplines at least police themselves and have seen their scholarly forms evolve. Ours hasn't. (Skim Rodell if you haven't lately or at all and compare his 1936 description to a random issue of a current law review.) Ours doesn't need to have a necessary form because it is not a single academic discipline nor does it have a necessary methodology. We have, by turn, been positivistically formalist, qualitatively social scientific, humanistic, historical (in various different, contested ways), analytically philosophical, econometric, quantitatively empirical, etc., and all of those approaches live on to some degree. Yet the shape and structure of the coin of our scholarly realm are deeply entrenched.

To repeat my previous post's point: Each year, each law review board and membership are hatched anew. They are shaped by their review's internal practices and the triage required to handle the thousands of submissions that flood in from the first day of their tenure. Because we neither take responsibility for the student-run law reviews nor provide them institutional resources for their scholarly role, any faults that arise are our responsibility. To the extent the form of our scholarship seems constraining to write and dull to read, the students aren't to blame. They are merely enforcing a form that we have allowed to develop.