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Wednesday, April 12, 2017

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.

Posted by Mark Fenster on April 12, 2017 at 11:10 AM | Permalink


I think it's quite possible that some professors secretly think that the long, repetitive, dull nature of law review articles is a feature, not a bug.

It's rather difficult to criticize the ideas of an article which one cannot even stand to finish reading. It's very similar to the type of impenetrable arble-garble written by the post-modernist academics. Drown a paper in incomprehensible jargon and no one can dare say you were wrong since they can't even figure out what you were saying. Bore them enough and the effect is the same.

Posted by: Derek Tokaz | Apr 13, 2017 11:58:04 AM

One of the greatest public relations moves in history was when Studio 54 turned Cher away at the door. Law reviews could start rejecting the usual automatic-acceptances and maybe word will get around. That would both make others follow the word count limit, and also make the rejecting journal seem more desirable to publish in.

Posted by: D.C. | Apr 13, 2017 10:04:25 AM

Orin, you are quite right. The attempt to lessen word counts have been a failure on the party of Harvard, Yale, etc. (though it seems that I read somewhere that Yale does tend to only initially accept articles under 35,000, but the articles balloon during the publication process).

That's why, unfortunately, change ultimately rests with faculty agreeing to limit their word counts, which will bolster the students. However, I think if enough 26-100 ranked law reviews implement the non-negotiable word counts and *stick to them* they can force change. Professors will be forced to decide, try to get into T-25 cold turkey or go for the other reviews.

Reducing law review articles to 15-20,000 words also has the added benefit of allowing more articles to be published per volume.

Posted by: YesterdayIKilledAMammoth | Apr 13, 2017 5:17:53 AM

I think this answers my question: According to Stephen Bainbridge's research, Harvard and Yale pretty much only publish articles over their recommended word limits.

Posted by: Orin Kerr | Apr 12, 2017 10:45:35 PM

Re the length of articles, has anyone checked on whether the effort among top law reviews to shorten publications, back around 2005, was any degree of a success over time?

See, e.g., this from 2005: " The Harvard Law Review will give preference to articles under 25,000 words in length — the equivalent of 50 law review pages — including text and footnotes. The Review will not publish articles exceeding 35,000 words — the equivalent of 70-75 law review pages — except in extraordinary circumstances."

Posted by: Orin Kerr | Apr 12, 2017 10:41:18 PM

Another possible way is to get enough law reviews adopting the hard word counts. You may not convince T-14 or even T-25 to change the system. Students and faculty alike profit too much. However, if you get law reviews below the T-25 to uniformly adopt a hard word count and completely blinding reviews it will have the same effects for three reasons.

1. Prestigious law reviews will no longer be able to use lower-ranked law reviews as screeners because the different law reviews will be screening different article types. The 20,000+ word articles that the T-25 want will be automatic rejects at other law reviews.

2. Professors will begin writing the shorter articles, because the T-25 are already difficult to get into. If more than 20,000 words is an automatic reject at other law reviews, the possibility for expediting is gone along with most of their chances of landing T-25 placement.

3. The T-25 may hold for awhile, but their journals will become increasingly incestuous (if that's possible) with the same names and ideas appearing over and over in the journals more than they already do. In order to open up to a wider range of writers, the T-25 will adopt the hard word counts.

So, if we can get prestigious law reviews on board, that will work. But there is considerable strength in numbers. So, if we can get journals ranked 26-100 to implement these hard word counts (with the explicit and expressed desire from faculty that this is the direction we want to move) the more prestigious journals will follow.

Though, like others have said, faculty need to communicate this desire to law reviews. They need to have law reviews implement non-negotiable word counts and total blinding of papers. And faculty need to take the initiative to pledge to observe the word counts and blinding.

It will lead to a better process and better scholarly pursuits.

Posted by: YesterdayIKilledAMammoth | Apr 12, 2017 8:43:35 PM

Nana asks what the first step to actual implementation is. One easy answer is: have a sufficiently prestigious journal implement the hard word count. The Chapman Law Review (just to take an example) does not have that kind of cachet; the Harvard Law Review does. The question is then, how do we get the Harvard folks to do this? From our end, as professors, the answer is: communicate the desired shift to the folks who the HLR editors look to as credible sources of influence -- in other words, the faculty at Harvard Law School. Professors can reach out to other professors, who can then express the preferred shifts in community norms, incrementally, of course, to the editors at the corresponding journal. (Of course, the HLR is independent of HLS, unlike many other law review-law school relationships, but the idea here is one of "soft" influence, or power, anyway.)

Posted by: Former Editor | Apr 12, 2017 7:58:02 PM

Amen to both of YIKAM's suggestions. But how do we get this to happen? I feel like all we do is admire the problem. What is the first step to actual implementation?

Posted by: Nana | Apr 12, 2017 5:51:53 PM

Academics are a far cry from being either leaders or self-motivated. In addition, students can't be expected to implement the necessary changes because, first, they don't know the state of legal scholarship or its several debates and they're just trying to punch their tickets to coveted law gigs. It is a Catch-22.

Reform will have to be implemented in steps. The first step is implement a hard, non-negotiable word count (in reality, 20,000 words is more than enough, with the actual emphasis on 15,000 or less). The students should understand that they reject any article even one word over 20,000. The second simultaneous review is complete blinding of articles. Students, again, should understand that they reject any article that has an identifier (i.e. make sure to delete the properties on your paper).

Eventually, the goal should be to transition to a year-long, faculty-run process with students helping. To do that, though, law review articles have to be drastically reduced and legal scholasticism has to stop being a business where scholars basically trade on their names and affiliations.

Two simple, common-sense suggestions that can easily be implemented and will have a noticeably positive impact on the process.

Posted by: YesterdayIKilledAMammoth | Apr 12, 2017 2:36:39 PM

This is a terrific post! Please permit me to add a few similar thoughts.

Consider what we like to call "legal theory." Unlike other disciplines (even in the liberal arts), legal scholarship about theory rarely seems to perceive any need to generate testable hypotheses and then gather pertinent data before a theory is embraced. Instead, legal theorists seem content to write what I like to call "This I Believe" papers. Or, the convention in legal scholarship that a proposition can be taken as adequately supported merely because the author has cited some other paper that has uttered the same thing. Or, the frequency with which authors are permitted to recycle the same thoughts in multiple articles. Or, that people doing what is alleged to be "interdisciplinary" scholarship can avoid peer review in the cognate discipline by publishing in a law review. I suspect that a great deal of the political theory that pops up in law review articles would have difficulty getting past peer review if subnitted to a publication edited by political scientists.

Here at Chapman (where I am the faculty advisor to the Law Review), we have moved a good deal of responsibility to the faculty in order to avoid the pitfalls described in this post. Here, the faculty is now primarily responsible for selecting articles (and student notes) for publication, and we have trained students to edit with a light hand and eye for readability. That said, we are bucking powerful trends. Many authors seem to prefer traveling down the familiar, if turgid, road to publication.

I am frequently struck by how often I hear legal scholars bemoan the state of legal scholarship, but are unwilling to do anything about it. For most, the problem seems to be regarded as something that we should talk but not do anything about, rather like the weather. We have only ourselves to blame for the current state of legal scholarship.

Larry Rosenthal

Posted by: Larry Rosenthal | Apr 12, 2017 1:06:37 PM

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