Business Law Prof Blog

Some Thoughts for Law Review Editors and Law Review Authors

As the discussion about law reviews and the value (or lack thereof) of student-edited reviews continues, I can't help but feel like some very thoughtful people are talking past each other. (See, e.g., here, here, and here.) As I mentioned last week, I see both sides of the story, and I often find myself agreeing in part with both camps. I am a former editor in chief (EIC) of the Tulane Law Review, and a law professor, and a law review advisor (the latter two at the University of North Dakota). I mention this because I feel like I have seen all sides of the law review process in a way that is (I think) different from many. 

As I noted before, I don't think that those who have expressed frustration with law reviews are mean spirited or inherently wrong. They have a point, but I can't quite get there. I simply think we can do better without scrapping everything. So, to add to the discussion (or further muddy the waters), here are some thoughts and examples from both sides of the experience:

(1) When I took over as EIC, I followed the format of prior editors, which involved a junior (usually 2L) member "sub and cite" edit, with oversight by a senior (3L) managing editor.  The article was then sent back to the author for the "initial edit."  (There were a few more internal steps, but this was roughly it.) The author would send the article back, and it would go through a more stringent review with the Senior Managing Editor, and then to me. One of our first articles came back from the author with a firm, but very thoughtful, and detailed response explaining why he believed many of our edits were wrong, and a request that I review the edits. 

During my review of the author's re-edits, I found that his original manuscript was right prior to our edits in most cases, and he was 100% correct in each place he took issue with our changes.  This was a great lesson for me.  I made his requested changes (and changed back some things he did not request), and apologized for adding to his workload, which we clearly did.  I also learned a valuable lesson. From that point forward, nothing went out of our office without my review. 

That may seem like a simple lesson, but it was not. I had a career before law school in public relations, and I had learned there that no PR plan, no press release, and no promotion prototype should go out without my review. And I still made the mistake because I stepped into a law review process and simply followed the system.  For me, there were many, many historical parts of the process I kept and found immensely valuable.  But nothing ever went out without me seeing it first after that. 

(2) I published an article for a symposium early after accepting my tenure-eligible position.  The symposium was great, and it was a wonderful experience.  The publishing, less so.  It took about a year for the article to get published, and when I asked for a redline of the article, I was told no.  Then I asked for a Word or Word Perfect version of the article, and despite some pleading, was again told no.  I wanted the article in print, so I said fine.  I then converted the PDF I was sent to a text, and ran a redline anyway.  It was hard, not easy to do, and probably missed some things.  In hindsight, I don't know why I accepted that, but I really wanted the article out. Awful. 

(3) I have since published with a number of different law reviews and journals, often related to symposiums.  Most of my experiences have been truly outstanding. The editors have been patient, detail oriented, and willing to work with me. Even when they have been wrong, they have been open to my rationale and explanation. And when I have been wrong, they have been courteous, intelligent, and thoughtful. 

Ultimately, I think student-edited law reviews can serve a great role in advancing scholarship, as long as we all better define and understand our roles.  Students could use help from experts in the field to know if the premise of an article is accurate and the foundation for an article is sound. And many editors are now getting that help. Students also ask good questions, and can help make sure a piece is accessible to more than just experts in an area. And, for the most part, they are smart and careful, and willing to look closely at details many people want to ignore. 

Plus, students learn more than just how to cite esoteric sources correctly and measure a margin.  They learn management, organization, and diplomacy.  These, too, are critical skills for lawyers, and there is no reason law reviews and journals shouldn't serve that role. For too many students, unfortunately, it is the only place they learn such skills in law school.  And they need to get those skills somewhere. 

As authors, we should be frustrated with student editors who don't treat articles and us with respect. (That applies to nonstudent editors, too, for that matter). We should expect deference to our positions and our style because it's our piece. But we should also respect the time and effort that goes into the process on the editing side. We should be respectful of students who care to spend countless hours with our work, and we should assume they are smart people trying to do the right thing, even if they aren't getting it quite right.  We just need to make sure they do get right.

At least for those of us who are professors, as most of us know, teaching doesn't end when the class period ends. We should offer help, input and constructive criticism when warranted. The authors who did that for me taught me invaluable lessons, and I am a better author, teacher, and scholar because of it.  

Energy Policy Lessons: Protect Me At All Costs (As Long As They're Your Costs)

Whether it's energy policy or financial policy, "people" want to be protected from bad things.  Things like blackouts, high gas prices, housing bubbles and failed credit markets.  But we also, apparently, want these things to occur cost free.  It's not clear to me whether "people" are the masses or our representatives in government, but it doesn't seem to matter. 

Take, for example, discussions about cybersecurity.  One report indicates that at least some in Congress believe our greatest national security threat is to the electric power grid.  In testimony before the House Energy and Commerce Subcommittee, ABC News quotes Rep. Trent Franks, R-Ariz. as saying the following about a national grid cyber attack:  

The sobering reality is this vulnerability, if left unaddressed, could have grave, societal-altering consequences. We face a menace that may represent the gravest short term threat to the peace and security of the human family in the world today.

Wow. That's a huge deal. And I agree it is a serious threat, even though I wouldn't go quite that far.  

To address these concerns, one of the legislative proposals is the GRID Act (H.R. 5206), proposed last year. That act:

Amends the Federal Power Act to authorize the Federal Energy Regulatory Commission (FERC), with or without notice, hearing, or report, to issue orders for emergency measures to protect the reliability of either the bulk-power system or the defense critical electric infrastructure whenever the President issues a written directive or determination identifying an imminent grid security threat. 

The Congressional Budget Office says the bill's "Statutory Pay-As-You-Go Impact" would be $0 over the next five years, and cost a little less than $7 million per year between 2015 and 2120. (See pdf here.) Pretty modest costs for the "gravest short term threat to the peace and security of the human family in the world today."

Similarly, Americans, and people around the world, support green energy, but are suspect of the cost. A June 2010, a Pew Research/National Journal Congressional Connection Poll found that 87% of those polled supported requiring "utilities to produce more energy from renewable sources." However, as a Financial Times/Harris poll found in October 2010 (press release pdf here), "When those who pay energy bills were asked how much more they would be willing to pay for renewable energy, most people in all countries said either no more or only 5% more." Interestingly, more people in the United States were willing to pay more than 5% for clean energy than those polled in Italy, Spain, France, Great Britain, and the United Kingdom. Australians also prefer green energy, according to The Economist, "So long as it doesn’t cost too much."

What does this tell us?  Well, a few things. First, we have great intentions on a lot of fronts, but those intentions are limited by our pocketbooks.  It's nice to want things, including safety, but we need to be willing to pay for them, too.  

Second, it appears Americans are more willing to pay more for some of these things in the energy context than many of our European counterparts, who are often held up as the great green societies. Of course, our European friends pay significantly more than we do for gasoline and diesel fuel.  But maybe that's the trade off. We're willing to pay more for electricity; they're willing to pay more for fuel. (Maybe those in Congress will pay attention to this dichotomy and focus efforts on places where they can actually effect change.)

Third, it sheds some lights on financial policies, too. We say we want to be protected from bad actors in the financial industry, but we don't seem to want to spend too much on that protection.  We'd rather (it appears) have some high-profile crackdowns on companies bribing foreign officials and those engaged in insider trading. 

Ultimately, it is possible that the political market is working and we're getting exactly what we want on both fronts. But that's not my sense, and the polls bear that out.  Then again, maybe polls just make us dumb.

--JPF