The Hart-Fuller Debate and Student-Edited Law Reviews:
Troubles with student-edited law reviews are a favorite topic in the blawgosphere; one common complaint is that student editors often butcher articles during the editorial process. Given that frequent complaint, I was amused to read a passage in the recent biography of H.L.A. Hart about Hart's classic exchange with Lon Fuller in the Harvard Law Review in 1958, an exchange often known simply as "the Hart-Fuller debate." The exchange consisted of two articles: Hart's initial essay, H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958), and Fuller's response, Lon L. Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart, 71 Harv. L. Rev. 630 (1958).

  It turns out that the exchange was held up for a bit when the eager editors of the Harvard Law Review so heavily edited Hart's piece that he considered pulling it. He ended up asking Fuller (who was a Harvard professor) to intervene on his behalf. The Law Review editors restored the piece back to Hart's original, and the exchange went on to become a classic.

  Here is Hart's letter to Fuller, asking Fuller for help with the editors:
  Meanwhile a spot of trouble! The L. Rev. boys had mutilated my article by making major excisions of what they think is irrelevant or fanciful. They have made a ghastly mess of it and of the references to Bentham and I have written to say thet must not publish it under my name with these cuts which often destroy the precise nuance. I took great care and much time over what they have coolly cut out.
  Could you induce them to be sensible? Such an interference with an author's draft is unthinkable here and I am astonished that so gross and insensitive thing should be possible at Harvard.
  I have told them that if they will undertake to restore the listed cuts I will get down to the unwelcome task of patching it up all over again. But meanwhile I will not return the proof.
  So sorry but it is important to me to get precisely what I said printed. * * * Yours ever, Herbert Hart
Fuller responded:
Dear Herbert,
  After receiving your letter I went over to the Review and found the President busily engaged in restoring your article to its original form. I am sorry for what they did, although I have to confess that this sort of thing comes close to being standard practice with articles written by American authors. Being near at hand I could save my baby from mayhem. Had I dreamed they would take such liberties with your text, I would have stood over them.
  So, authors, if you get back an article and the editors have overedited your piece, don't be upset: just think to yourself, "Hey, cool, I'm being treated just like H.L.A. Hart!" And editors, if an author gets upset with your edits and insists on having everything restored to the original, don't get depressed: just think to yourself, "Hey, this is just like the Hart-Fuller debate!"
Arvin (mail) (www):
This is one thing I don't understand about the complaints, which may stem from my lack of knowledge of other law reviews. I was a Senior Editor on UCLA's Law Review, which means I butchered the articles of at least 6 law professors, if not more. But here's the thing: knowing that it was at least POSSIBLE that said learned professors would know more than I about either the subject on which they were writing or even what constitutes good legal scholarship, said professors were allowed to undo ANY of my changes (even the obvious math errors that were sometimes present -- though thankfully they let those corrections stand). All changes were made by hand, with red pen, and authors could simply write "stet" above any of my changes, and my suggested change would go away. I might suggest it again on the second pass, and the author could again "stet" it on that pass too. So what's this about pulling articles for being edited too much? Do other law reviews not do this?
8.13.2006 10:06pm
Billy Budd:
From the lowly vantage point of a 2L staffer, it seems like concerns of student over-editing seem a little overblown. We mostly defer to an author's interpretation of law as long as we think that it isn't patently wrong. And most of our work does not center on changing the substance of an author's piece; 90% of what we do involves fixing Blue Book errors, suggesting pincites and explanatory parentheticals, fixing grammatical mistakes, etc. Perhaps Harvard's Law Review is or was different.
8.13.2006 11:22pm
The River Temoc (mail):
Rare is the author who doesn't lock horns with his or her editor when the latter tries to excise something. Whether the editor is a law student or professor is pretty much irrelevant to this process. The bigger question, of course, is the extent to which law students are qualified to determine whether articles are suitable for publication, particularly outside of very narrow areas such as constitutional law and criminal procedure.
8.14.2006 1:18am
Christopher M (mail):
Having worked on the Harvard Law Review (a few years ago), I'd be surprised if many authors still had this kind of experience. Large-scale changes (like removing entire sections) were mostly suggested early on, by either the primary editor assigned to the author's piece, or by the President, who read and commented on essentially all articles we accepted. In most cases those suggestions were made by letter to the author before we received the author's final version; certainly never by some kind of secretive editing process where we rewrote the article and then presented it to the author as a fait accompli. If the author disagreed, fine; we moved on. (There were rare cases where pieces were just too long, and we accepted them with the understanding that they needed to be shortened, but I'm putting those aside.) Everything from there on in was more or less line editing. I can understand why authors were annoyed by that -- either by stupid stuff like removing so-called split infinitives or just by the notion that little 2Ls thought their word choice was better than the authors -- but it's nothing like what's described here.
8.14.2006 1:44am
Federal Dog:
I have never understood this. The legal profession should take scholarship more seriously than to dump it on kids just out of college who have no idea how to professionally read and edit. Every other profession entrusts trained and experienced professionals with this important work. I have no idea why law would have such little regard for scholarship as to dump it on kids who are in the process of receiving the minimal training necessary to even sit the bar.

I'm with Posner on this: The reason legal scholarship is so damned poor and unused is because the profession itself does not value its own scholarship enough to install trained professionals as editors.
8.14.2006 8:39am
And who was the Editor in Chief of the Harvard Law Review that year? Peter Fishbein, currently of counsel at Kaye Scholer.

The articles editors were Arthur R. Miller, yes that Arthur R. Miller, and Arnold Enker, also now a law professor.

Staff members included one Ruth B. Ginsburg.
8.14.2006 9:25am
Whoops, my mistake. Fishbein was a note editor. Richard Goodwin, speechwriter and advistor to President Kennedy was the President who had to restore Hart's script, though it would be delicious if Miller or Ginsburg had been involved in the original cutting.
8.14.2006 9:32am
cfw (mail):
I agree that the profession needs journals that are peer reviewed - some sort of jury or referee system (along with law students and professors). Ideally, the reviewers should include a healty number of lawyers who actually practice law (including law clerks, folks in government, judges, folks who teach and also have clients). Just having students and "pure" teachers reviewing seems to lead to a good deal of pretty pointless, tedious and unduly lengthy writing. We probably could be doing much better, if the "reviewing audience" (those deciding what will get published in top journals) were broadened.
8.14.2006 12:59pm
Ira B. Matetsky (mail):
The 1950's must have been an interesting time to be a Harvard L. Rev. editor. Frederick Bernays Wiener, in BRIEFING AND ARGUING FEDERAL APPEALS, tells the story of an article submitted in 1955 by Justice Frankfurter. The Law Review eagerly accepted the article, and dutifully set about Bluebooking all the citations, such as by changing all the cites to "1 Cranch" to "5 U.S. (1 Cranch)", etc. Frankfurter despised that then new-convention, and threatened to pull the article if they didn't change all the citations back. The article was published with the cites as Frankfurter wanted them -- but supposedly there was a note from the editors to the readers in the front of the issue, apologizing that the non-uniformity in the citations wasn't their fault. (I've never seen a copy of that note, though, since the roman numeral page didn't wind up in the bound volume.)
8.14.2006 1:12pm
Irensaga (mail):
Look, I know that law professors don't want to hear this,

But the truth is, a lot of their submissions really are in desperate need of editing. I served as an articles editor myself and you wouldn't believe some of the junk that full tenured professors would try to foist on us as a real article.

I knew of many professors who would take 10 pages to say something that could have been thouroughly covered in 3 pages. It seems to me that some of the Professors are vastly overestimating their own writing abilities, and unjustly trivializing the abilities of the law review staffers. Of course the professor was outraged at the cuts. Of course he thought the cut material was wonderful. He wrote it for crying out loud!

Ask any professional editor. Authors never want to cut the dead weight off their babies. They always think that stuff that is in reality, pointless tripe, is stunning commentary.

That said, my own law review always followed Christopher M's policy of asking before altering. The failure of HLR to do the same in this case seems like a major gaff.

But cut the Wizard of Oz routine. Professors aren't gods, and tenure isn't infallibility. Sometimes the work of even tenured scholars stinks enough that even a 3L student can spot it. In fact, sometimes tenured faculty are the worst offenders because they know they have the reputation to win a slot even with a mediocre article.
8.14.2006 1:19pm
poster child (mail):

Look, I know that law professors don't want to hear this,

But the truth is, a lot of their submissions really are in desperate need of editing. I served as an articles editor myself and you wouldn't believe some of the junk that full tenured professors would try to foist on us as a real article.

This was my experience as well. Most of the first drafts I saw could've been written on cocktail napkins. The real dirty little secret of legal scholarship is that once you're sufficiently famous, most of your subsequent law review articles are actually co-written (or ghostwritten) by law review editors.
8.14.2006 2:15pm
Ubertrout (mail) (www):
Contrary to what many have written, this sort of practice is still quite common. I had my first piece published at a general law review (which shall remain nameless) essentially mutilated by the editors. Their editing of the first half of the paper (I.E. the background) was quite good, but then they just ripped out much of the second half, including much of the thought that made it worth publishing in the first place.

It's worth noting that these excisions were not all bad, and I did accept about a third of them. But the editors didn't seem to understand what the core of the paper was, and either way it seems fairly arrogant to accept a paper to publish and then remove all that is original about it.
8.14.2006 3:36pm
I have to agree with Poster Child. As a 3L I was faced with being the primary "editor" of an article for a symposium written by a pretty famous professor. It was adapted from a speech he had given and the manuscript was little more than his notes for the speech, with citations along the lines of "1969 article written by Jones et al. in Psychology - mentions cannibalism" and "Williams - D.C. Circuit case from late 80s written by DG". Many of the "points" raised by the article were similarly vague. Repeated phone calls were not returned. Eventually I figured I had to research and write the thing myself or else there would be nothing to publish.
8.14.2006 4:28pm
When I was a law review articles editor many years ago, I also encountered many extremely poor submissions by law faculty, including articles that were little more than outlines waiting to be "written up" by the student editors. It seems to me, however, that this is another argument against student-edited journals. I doubt authors would submit such papers to peer-reviewed, professionally-edited journals.
8.14.2006 8:31pm