The Volokh Conspiracy

A great start top forcing better writing! I've long felt that high school English papers ought to be assigned with a maximum length rather than a minimum length--it's HARD to present a coherent argument in a short space. Maybe we can take the phrase "legal brief" out of the list of oxymorons.

This news comes a day late and a dollar short for this embattled cite-checker.

I'm of the impression that the entire law review industry is a self-perpetuating one, or nearly so. Law students don't care, and for the most part, neither do lawyers and judges. Professors and deans do. With tenure erasing differences in pay &position, publication becomes currency. All in all, I can't say that the majority, or even a significant proportion, of published articles are noteworthy or merit recognition. I think most articles are simply destined to become someone else's footnote in another upcoming "So What?" symposium. From my point of view, all I care about is my workload. Outside that, I don't think anyone will or should care about this aside from professors themselves.

I have an idea: why doesn't the Harvard Law Review state that it will accept only articles that are in the form of three haikus, each of which rigorously adheres to the 5-7-5 syllable structure? Also, the first letters of the lines of the haikus must spell out the name of a current member of the HLR board.

I just find it so bizarre that students are imposing word limits on professors. It just suggests that law is not a serious academic field.

To me, this seems to skirt the issue. Will arbitrarily selected (yet shorter) page limits make legal writing better? How do I know what information is necessary and unnecessary. Although I'm a graduating night student, I'd consider myself an advanced neophyte at writing (published, two in the works, co-author with a partner at a different law firm, helped in writing a handful with lawyers at my own firm). I'm very stingy with excessive prose, but still write long articles.

Most of the topics I've covered are complex (as opposed to philosophical), requiring me to get into statutes, the CFR, interpretive caselaw and any relevant legislative history or agency guidance. Some have required extensive histories of appellate practices or agency actions to prove my point. Others require gobs of case citation to show deviations or similarities in circuit court holdings (past and present). When we use law review articles in practice, it is often to gain a firm grasp of the basic groundwork before a foray into the details we're trying to learn about - so I can't pretend that every reader is already an expert. Footnotes tend to include the rebuttal of anticipated but tangential arguments against me; when I summarize the position of a judge, especially if it's one I'm criticizing, the footnote usually includes a substantial quote of the opinion (i.e., don't trust my characterization - see for yourself). These latter two practices have grown out of disappointment with sloppy and/or glib articles by law professors, so I'm not inclined to give them up.

So what should be deleted out of all this? I'm not being sarcastic. Considering the group that reads this site, I'm honestly interested in what common portions of law review articles should be reduced or excised completely.

While this policy will have the result of cutting down on the work editors have to do, I don't think it is necessarily self-serving, at least in its primary purpose. People, including professors and practitioners, complain that law review articles are too long (as evidenced by the HLR survey). However, no individual author thinks that HER article is too long. So while authors are eager to cut other authors' articles, they do not want to cut their own. Editors fight a very difficult battle when trying to get authors to cut pieces down. Most simply refuse. Creating an across-the-board policy like this gives the editors a little bit more leverage with individual authors, and everyone benefits.

I find the idea that this policy is self-serving rather laughable. Sort of like saying: we worked insane hours, for insane reasons, and so should you. If we're going to work long hours, at least we should do it for good reasons--not for the sake of some hazing ritual. At any rate, the fact is that law review editors are going to work just as hard as they did before. Either they will publish more and better articles, or they will devote their time to improvements in selection and editing. By nearly any disciplinary standard, however, the average law review article is too long. I screened nearly 1700 article submissions this year (out of nearly 2200 total submissions), and my hunch is that the average length was over 30,000 words (and probably over 35k). I doubt that even 2% of those articles really needed to be that long. Even articles that are highly doctrinal do not need to be that long. The industry standard, as it were, is a result of the lack of peer review, which would never tolerate articles of this length. (Most peer review journals cap articles at 10,000 words.) As more students enter the law from other disciplines, they will bring this awareness with them. Articles don't need to be behemoths to make their points thoroughly and accurately. Somehow, professional historians, political scientists, and economists all manage to live with articles of reasonable length. In exceptional circumstances, an article might really need to be rather long. But in many cases, authors would do well to write books. This year, I received articles that were over 75-80,000 words long; or "two-part" articles that were equally long. That is monograph length. And very few law professors would suggest otherwise.

Will big name law professors get to break the rules? I doubt it. My law review published a number of well-known scholars this year. In fact, they authored some of our shorter pieces. We also turned away 45-50,000+ word manuscripts by important scholars, a number of whom acknowledged that their articles would have been shorter had they realized we were taking shorter pieces. As the culture of legal publishing changes (perhaps in ways that Orin Kerr suggests above), editors will find that these changes make good sense across the board. But more importantly, well-known scholars have less incentive to write really long pieces. That's frequently why we have good "essays"--really just normal length articles--coming from establshed academics. By removing the perception that others need to write long articles to get published, the recent statement by top journals may help to widen the phenonemon.

Should law students get to set the word limits? Others have pointed to the benefit of solving a collective action problem here, and there is some truth in this. But if law professors really want to publish longer pieces (and the Harvard survey strongly suggests otherwise), nothing prevents self-publication (e.g., on-line via SSRN) or publication through specialized peer review journals. I doubt that faculty would run journals publishing articles of such length. Another point here: I think some of those advocating for long articles (and there aren't many--so I might be wrong about this) also aren't big fans of student edited journals. Since faculty wouldn't publish long articles if they were responsible for editing them, it's hard to take this combination of views seriously. And I don't think many people really hold them. Most probably want shorter articles and peer review, and, if not that, shorter articles in student-run journals. And at least we have a chance at the latter.

All I can say to the good people at Harvard Law Review is: bless you, bless you, bless you.