Law Review: Are law students undermining the quality and influence of legal scholarship?
One of the secondary sources I’ve used the most in my law school career has definitely been law reviews and law journals. All of my searches were done online usually with Westlaw or Lexis; however, some I found through a simple “google” search. Now that journals are beginning to create websites with access to some of their more recent publications, free online access to these journals will become more readily available, though it might take awhile for all journals to catch on.
I’ve mainly used journals when writing research papers for a class or a Note. With the vast number of journals publishing multiple issues a year, there are usually many articles written on a given subject that I happen to be researching. The journal articles help me to identify the key primary sources and other useful secondary sources in that area. They come in less handy, however, when I’m doing internships and clinics, which begs the question of the practical use of journals outside of academia. Do practitioners and judges even read this stuff?
A little over six years ago, in his article, Against the Law Reviews, Judge Posner expressed his concerns about the system of scholarly publication in law. Unlike other professions, legal scholarly writing is published in journals edited and published by law students usually with little, if any, experience as editors and a limited knowledge of legal subjects. In contrast, scholarly journals for other academic fields are “edited by seasoned specialists, usually professors, who have had years of experience both as editors and as scholars in the field covered by the journal.” These articles often go through a “peer review” process, where other professors critique the article and give their opinion on whether it should be published.
While some of Judge Posner’s problems with student editors seem petty, such as his complaint that they want to add too many footnotes and make unnecessary stylistic change, many of his criticisms seem valid.
One such criticism is the trend for journals to focus on another area of expertise outside the law, which he calls “law and . . .” fields (e.g. “Law and Economic”). Most likely the editors have even less knowledge on these extra-legal areas, making the absence of peer review even worse. Then, compounded by the fact that the students are not trained or experienced editors, whatever suggestions they do make are unlikely to benefit the author or reader. According to Posner, “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.”
Posner suggests that law reviews should return their focus to publishing topics that “student editors can handle well,” such as criticisms of judicial decisions and carefully analyzing judicial decisions to discern new directions in the law. Additionally, more attention should be given to lower court decisions, since according to him, the Supreme Court Justices are less likely to be swayed by scholarly criticism of their opinions.
In all honestly, I still doubt that many lower court judges would pay much attention to criticisms of their decisions by law professors and students. However, I do think more analysis on the change in jurisprudence of a given area of law would be very practical for practicing lawyers. The benefit of quickly researching the general trend of how judges are ruling on the area of law you specialized in seems very useful.
With regard to minimizing the damage done by inexperienced student editors, he suggests handing the editor’s position over to law professors, while continuing to allow the students to work and write for the journals under faculty supervision. Judge Posner doesn’t deny the valuable benefit to law students who work on a journal (something that I strongly doubted during my experience as an associate on a journal, then later realized the benefit during my 2L internship). Although it might not be as helpful in securing jobs for some of us as it once was, the sourcing, cite-checking, Bluebooking, and everything else we loved to hate about journal did come in handy, I must admit. Posner suggests these benefits actually are the largest hindrance to reform of the current system.
I feel that students will still be able to get the benefits of learning these skills, while the involvement of a more hands-on faculty supervisor conducting peer review will likely increase the quality and scholarship of the law journals. So what’s the problem?