Monday, October 21, 2013

Liptak on Legal Scholarship

In today's New York Times, Adam Liptak has a short piece trashing law reviews.  The basic themes are pretty familiar: law review articles are too long and too esoteric (he refers to “the good old days, when it was not unusual for legal scholars to write about topics useful to lawyers and judges”); nobody reads them (in fact, “[l]aw reviews are not really meant to be read"); they’re badly written; and none of that is going to change.

It seems beyond dispute that there are issues with the law review system, and for a good and thorough discussion, readers might skip Liptak’s article and go straight to one of the recent pieces he cites.  But Liptak’s article is a mess.  Some of the claims are just silly.  Like pretty much all of my colleagues, I definitely do intend for my stuff to be read.  One can debate whether I’ve earned that readership, but saying—without any supporting fact or authority—that we don’t intend our articles to be read is the sort of mistake that even one of those “incompetent” law review editors would readily catch.

Only slightly less strange is Liptak’s assertion that “[t]he judge, lawyer or ordinary reader looking for accessible and timely accounts or critiques of legal developments is much better off turning to the many excellent law blogs.”  Clearly blogs are a better sources of quick analysis of breaking news, but that’s because they can be written in a very short time.  On that measure, they also outperform books, but that doesn’t mean books lack value.  And if one wants analysis of an issue that didn’t just arise yesterday, then a deeply researched article, with every footnote checked by an army of law review students, is probably a lot more reliable than a blog post—just as a carefully researched article about the law review system is a much better source of useful information than, say, a New York Times article.

Beyond those low-hanging fruit, I think there are a few more subtle problems with Liptak’s analysis.  And because these problems aren’t unique to Liptak, they merit a bit more discussion.

The judge fixation.  The first fallacy is the presumption that one can assess the value of law reviews by quoting a few judges.  Liptak, for example, places heavy emphasis on a few familiar quotes from Chief Justice Roberts and Judge Dennis Jacobs, both of whom argue that picking up a law review article and sitting down to read would not be a sensible use of their time.  But that doesn’t mean law reviews are irrelevant to judicial decision-making.  I don’t think the judge I clerked for spent much time reading law reviews.  But I did.  When I tackled unfamiliar legal areas—which, for a clerk fresh out of law school, can be a weekly occurrence—I found that law review articles were helpful places to start.  Often I was more interested in their summaries of relevant law and in the sources they cited than in their recommendations, but not always.  In any event, those articles were quite useful to me, and, therefore, to my judge, even if he didn’t realize it, and even if I never cited them in the draft orders I wrote.  I suspect the same is true for the judges Litpak quotes. 

Moreover, some articles may be useful even if they aren’t valuable to judges.  Articles designed to help local officials better understand their powers, to encourage agencies to regulate in different ways, to help inform legal teachers, or to guide new legislative initiatives all can be quite valuable.  Obviously some legal scholarship should be useful to judges.  In the legal world, they do still matter.  But there’s no reason why all of it should be.

The misplacement fixation.  Another key critique of law reviews is that their system for placing articles is a mess, which leads to a poor correspondence between journal prestige and article quality.  The evidence is fairly overwhelming that the placement system does have systemic biases, most of which operate to the disadvantage of less-established writers.  But I’d argue that this isn’t that big a problem, and certainly isn’t a basis for dismissing the entire system as deeply flawed.  Good articles still get printed.  Bad articles are still easy to ignore, even if they’re highly placed.  And in my experience, other professors do a good job recognizing quality work, at least within their own area of expertise.  Misplacement also has a significant silver lining for lower-ranked journals: every time top journals screw up, their mistake allows students at a lower-ranked journal the opportunity, if they’re smart enough to grab it, to work on a high-quality, valuable article.  If placement corresponded perfectly to quality (something that doesn’t happen even in the peer-reviewed world), being an articles editor on the Maine Law Review or an environmental specialty journal would be much less rewarding than it currently is.

The condescension.  A last theme here is that the students actually running law reviews are incompetent.  In my experience, again, that claim is badly overstated.  Judging the relative merits of articles from many different legal sub-fields is a hard thing for second-year law students to do.  And the comments I receive from other professors are often more constructive--at least on matters of content--than those I receive from students.  But every article I've ever written has been improved by student review.  Sometimes the students' lack of knowledge is actually the key to those improvements; their edits help me identify places where a non-expert reader would be confused.  Usually the improvement comes just from having smart, motivated people thinking hard about every page and every footnote of the article.  And if my experience is at all typical--and I suspect it is--that justifies a little more respect for a lot of hardworking, and competent, students.

-Dave Owen

 

 

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