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:
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.Fuller responded:
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
Dear Herbert,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!"
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.
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.
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.
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.
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.
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.