In Defense of Law Reviews

Adam Liptak has a piece in the New York Times recounting many claims that law review articles are on average very bad, and useless to the bench and bar:

Law reviews are such a target-rich environment for ridicule that it is barely sporting to make fun of them.

About 43 percent of law review articles have never been cited in another article or in a judicial decision.

Law reviews are not really meant to be read. They mostly exist as a way for law schools to evaluate law professors for promotion and tenure, based partly on what they have to say and partly on their success in placing articles in prestigious law reviews.

The 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.

The general debate on how to improve law reviews is an old one, and there is little prospect of change. Law reviews will continue to publish long, obscure and dated articles, and their readership and influence will continue to drop.

Of course there is some truth to these charges (and who am I to criticize “the many excellent law blogs”?). But it seems to me that they are mostly wrong and overblown. (Lengthy thoughts continue below the fold:)

First, the emphasis on judicial citations is misleading. Not all law review articles are trying to be cited, let alone be cited by courts. I can say from personal experience that there are a lot of articles that get read and used by law clerks and law firm associates but aren’t cited in the final opinion or brief.

Then there are articles that simply address other audiences. Some address legislatures — think of Vic Fleischer’s work on carried interest, which led Congress to introduce legislation that would have taxed fund managers at higher rates. And there are even articles that address, yes, academics or students or future generations.

It’s fashionable to make fun of that last category, I suppose because the image of academics sitting in ivory towers and writing only for themselves seems self-indulgent. But many academic disciplines are similar. How many people read philosophy journals to decide whether their reality is real? Articles that address academics come from the belief that ideas matter, even if they sometimes filter into the world only indirectly. Maybe that faith is wrong, but only time will tell.

Second, let us assume that many law review articles are indeed bad. In fact, I suspect this is true. But so what? Remember Sturgeon’s Law, that “90% of everything is crap”? That does not tell us much about the many that are good. (Indeed, it is ironic to have to make this point, since Liptak’s Sidebar column regularly highlights interesting legal issues that appear in contemporary scholarship.)

The judges who are critical of legal scholarship get quoted a lot, but not enough people quote this observation by (Judge!) Frank Easterbrook:

“A free mind is apt to err– most mutations in thought, as well as in genes, are neutral or harmful– but because intellectual growth flows from the best of today standing on the shoulders of the tallest of yesterday, the failure or most scholars and their ideas is unimportant. High risk probably is an essential ingredient of high gain.”

If law professors were only producing successes, I would say they were not trying hard enough.

Third, the complaints about the substance of legal scholarship are only partly related to complaints about the system of publishing legal scholarship. The law review system is one in which a lot of chaff gets published, arguments get aired, and then readers and experts sort the wheat from the chaff ex post. Indeed, this is the flipside of the fact that much scholarship is never cited. Couldn’t that be seen as a good sign — that the field is capable of sorting the stuff worth reading from the stuff that is not?

The model of legal scholarship is different from some other academic fields that rely more on pre-publication screening instead of post-publication screening. In these fields, the goal is that only stuff that is good (or thought to be good by the gatekeepers) gets out in the first place. The peer review model is better at generating a consensus in the field — or at least the appearance of one. The legal scholarship model is better at generating a wide range of arguments that subsequent readers can evaluate for themselves.

Finally, a few questions for the critics:

— For judges who complain that legal scholarship does not address useful topics, what topics would they like to see addressed?

— What is the optimal percentage of bad articles, and what is the optimal percentage of uncited articles? Should we aspire to a world in which nothing “bad” is published, and if so, how confident are we that the correct standards of “bad” will win out in such a world?

— How confident are we that the selection system is the real problem here? Liptak recounts that critics of the current system favor “blind screening, peer review and more training for the student editors.” But there are peer-reviewed law journals, and I doubt that they are cited more often by courts (if that is the goal). And even if one imagines that blind screening and more training are the problem, will that really result in better articles, or will it just mean that the better articles get better placements, and the worse articles get worse placements?

— And finally would those really be worth the costs? Peer review and training take faculty time. Are enough faculty willing to spend time doing that rather than writing, consulting, teaching (or leisure)? Blind screening is probably a good idea, but it also probably puts more pressure on journals to resist massively simultaneous submission, which authors may not enjoy giving up.

If we really think that most law review articles are bad, and we think that this is a problem (which I do not), maybe it would make more sense for people to stop writing bad articles. But somehow, I doubt there is sufficiently widespread agreement about which articles are bad. Maybe we should just keep ignoring the bad ones.