Legal academics have lots of complaints about the nature and quality of law review editing. At Concurring Opinions, Daniel Solove shares his two biggest pet peeves — unnecessary parentheticals and excessive footnoting — and suggests that "many law review editors have no idea just how widely professors view some of their editing practices as silly and bothersome."
If law review editors were to jettison the two pet peeves I mention above, it would eliminate the bulk of my gripes. My sense is that these two pet peeves are among the most loathed editing practices by law reviews. So all you law review editors out there — especially those at the journals who write the Bluebook — please put a swift end to the parenthetical and the needless citation. Law professors around the country will rejoice. And you'll be happier too, as it will make your lives easier as well. It's a win-win situation for everyone!
Like Solove, I've had both positive and negative editing experiences with student-edited law reviews. In the best cases, student editors provide useful feedback that improve an article's clarity and persuasiveness, and help ensure it is properly cited. In the worst cases, student editors forget that the author knows more about the subject than they do, introduce errors into the text, and apply Bluebooking rules in an absurdly rigid fashion. In my experience, some law review editors are so obsessed with following the "rules" that they abandon common sense. In most cases, I have had little problem explaining why I would not accept certain proposed edits or additions, but sometimes I get a surprising amount of resistance. My advice to editors (as a former Articles Editor myself) would be this: Apply the rules with common sense, and remember they are a means to an end, not an end in themselves.
UPDATE: As the comments indicate, some law review editors have pet peeves about academic authors. Based on my experience as an Articles Editor, and from advising our law review now and then on specific articles, some of these pet peeves are certainly justified. I also recommend these pointers from a current law review editor in the comments.
The editors have to delegate editing tasks to these people, because they made law review &are warm bodies available for the task. The editors can't allow the staffers to make judgment calls -- the rules thus require them to err on the side of overcaution. A footnote for every sentence!
Many professors have no idea just how widely law review editors view as annoying and bothersome professors' habit of submitting articles filled with unsubstantiated assertions about the state of the law.
But, apparently, not so frustrating for professors as to take up the option of doing the work themselves.
On my law review, the 2Ls would supply the citations and parentheticals, and the board members would review their work and only keep the ones they found necessary. Some of the board members had better judgment than others. I tended to err on the side of leaving the author's stuff as written, and saw our primary role as correcting mistakes, checking citations, and suggesting the occasional minor wording change for the sake of clarity.
What annoyed me was when the authors would sent in articles full of blank footnotes and use the law review as unpaid research assistants. Our articles office would usually not accept these things, but this sort of thing was often unavoidable in symposium pieces.
At least, that's the sense I got on law review.
But once, just once, I'd like to see a post from the law reviews' perspective. It's an open secret among law review editors that much of the writing from legal academics is of extremely poor quality. I am talking about both style (poorly written sentences, paragraphs and sections lacking any coherent structure and flow) and content (a particular problem being lack of novelty).
And lest anyone think I'm just talking about junior faculty, or faculty at less prestigious schools, think again. This year, I've edited pieces from academics of all shapes and sizes (from junior faculty at tier 3 schools, to some of the bigger names in legal academia) and have been disappointed accross the board. Yes, some of the writing has been good, but that's more the exception than the rule, I'd say.
This could easily become an extremely long post, so I'll cut to the chase and give my top three pieces of "advice" to any legal academic thinking about submitting an article to a law review:
1. Before you submit your piece, have a college educated colleague/friend who is not in your particular sub-specialty read it over, and ask if they can follow your argument. They don't have to understand every single nuance, but they should get the general idea of what you're trying to get accross. If they can't, it's probably because your writing is poor. In that case, go back to the drawing board, and spend some quality time with it. Wait until the next cycle to submit.
2. If your main point has been made by someone else (or by you in a previous article) please don't submit. I've been repeatedly astounded/disturbed by the number of articles submitted to law reviews that are completely unoriginal. This might be the most egregious as it pertains to scholars (often those at rather prestigious schools) who recycle their own ideas under the guise of "building upon their own previous scholarship." Once in a while, a scholar does build up his/her own previous scholarship, but often they're just repeating themselves, and in my opinion that's a waste of paper.
3. DO NOT PLAGIARIZE. Again, accross the board (junior and senior faculty, prestigous and not-so-prestigous schools) are guilty of this. Now, I'm willing to give many of the academics the benefit of the doubt by saying that their plagiarism arises out of laziness (forgetting to put quotes around sentences, forgetting to put ideas into your own words). But still, I'm not sure how relevant mens rea should be here. Most (if not all) law schools have strict plagiarism policies for their students (mine sure does). My advice for every academic would be to ask yourself "If one of my students submitted this piece to me for a class, would they have violated our school's plagiarism policy?" If the answer to that question is yes, then please do not submit your piece to a law review. It is not only bad form, but it is rank hypocrisy as it applies to your own students.
I'm sort of a prescriptivist myself, but I think we see more damage to the language from people who believe in imaginary rules than from those who don't know the real rules.
Professors, before your bitch about how bad the law review editing process is, try the following:
1) Actually complete your article. I wish I had a dollar for every footnote that read "cite," every "just one more page!" addition we received that radically altered the article that was accepted, and all the broad and vague assertions that needed to be corrected for being flat out incorrect.
2) Don't plagiarize. I can guarantee you that if one of YOUR students did what you do that you'd give him an "F" and might also have him expelled from the law school. Additionally, his professional career would be ruined, as that gets in the way of most state bars' moral character applications. Its a good thing that (1) we don't rat you out and (2) you don't need to be a member of the bar.
3) Stop pretending you're an intellectual. You're not. Just write about the law. I'm not interested in your "Law and _____" articles, particularly when your experience with ______ is limited to (1) a GE requirement you took as an undergraduate and (2) a quick summary of some article that you overheard at a faculty party.
I know you guys love to talk about how awful student editing is, and how you wish that you were more like your buddies in "real" academic disciplines who have peer-reviewed journals and whatnot.
You know what? I wish you were too: nearly all of you would be fired.
Top Ten Excuses Used by Authors This Year
10. My research assistant bailed on me.
9. My answering machine was stolen.
8. The secretaries for the older faculty work in Microsoft Word for Windows unless they are working for other professors, in which case they use WordPerfect, but sometimes they mix up the two.
7. My roof leaked, so I couldn't get the manuscript to you.
6. I was in the Ukraine last weekend.
5. I've been having chest pains.
4. I couldn't find my research assistant.
3. The Religious Freedom Restoration Act just mooted half my article.
2. I read the article you're concerned about, and I don't think the article preempts my piece.
1. I was tired and I didn't feel like going to the library.
Sure, there are cases where overzealous editors want footnotes for every obvious proposition or original thought. But for each of these, my experience tells me that there are scores of non-obvious -- and often false -- propositions unsupported by any authority. While it may be a pleasure for student editors to chase down authorities (I say this without sarcasm -- many editors genuinely enjoy doing the research), it is never a pleasure to encounter fierce and condescending resistance from the author. It is still less of a pleasure to discover, as is so often the case, that an article consists of recycled bits of the author's past work cobbled together with unsupported propositions. The most well-documented portions of articles sent to law reviews seem to be the ones recycled from articles already corrected by student editors.
If an author wishes to avoid the indignities of dealing with student editors, he should try to publish elsewhere. Characterizing the sort of lazy, unoriginal, and often incoherent writing that I (like every other law review editor) have seen from well-known academics as some sort of noble protest against a broken system is just disingenuous. Law reviews serve not only the academics who they publish, but also the students who staff them. Neither group is well served when authors submit garbage and then complain about the students trying to clean it up.
Legal writing aside (it is technical writing, after all) the state of writing is America is deplorable. I recently taught business law in an MBA program at a local university and was amazed at the inability of my students to express themselves on paper. Grammar, spelling, punctuation, usage - it all sucked. I'm glad that the SAT is now testing writing. I hope that schools can start teaching it.
You're only editing the piece b/c your articles committee selected it for publication. If the article is in such horrible shape, here's a tip - DON'T ACCEPT IT. Law reviews are not required to accept a certain number of submissions per year.
Once you accept an article for publication, I think there should be relatively little done to it. The prof's reputation is at much greater risk from a crappy article than the publishing law review's. If a presumably well-credentialed professor of the law thinks something is OK to publish, why should a student with 2 (or less) years of legal study under their belt stand in the way?
At the end of the day, I see this issue as systemic. Editing an article is like buying a used car from a non-dealer. There is no accontability, because both parties realize that the term of their relationship will end after the article is published.
I'd bet if there was a web site that allowed for authors and journals to report on their experiences that the process would be on the whole much smoother; or at the least, more congenial. What the industry needs is a way to report on the editing/submission process so that authors and journals have a better way of evaluating their prospects than just looking at rankings or a bibliography.
I couldn't agree more. Many of the criticisms above are well taken. It is not true, however, that all or even most articles are incomplete or read "cite" where a footnote should be. Nonetheless, because "editing" is the law review staff's raison d'etre, even a well written and properly cited article can get butchered by over-eager editors.
Like most of the people reading this post, I have seen this from both sides. Each person gets some portion of the article, in my experience around 3-5 pages, and tries to "correct" as many things as possible. The end result? Footnotes are added. Useless parenthicals are added. Changes are made to the text. These changes often reflect the substantive biases of the editor, rather than the author. They almost always make bad gammar worse. They frequently introduce typos or other erros that were not in the original text.
Authors should do a thorough job the first time. They shouldn't submit garbage that is half-finished and lacks supporting authority. Likewise, law reviews should not accept articles that are incomplete or riddled with errors. For the articles that they do accept, the editors should start from the presumption that a piece is not full of mistakes. If you find errors, great ... fix them. Don't mistake you duty to correct errors as a license to rewrite every sentence
I saw more bad behavior from BOTH sides during my law review experience than I have ever seen anywhere else, before or since. A plague on both your houses.
Writers: only cite to something you've actually read and can locate, both preferably from some source other than Westlaw or Lexis, as many journals require members to track down a physical copy or original image. This is especially important with international materials, court filings and newspaper articles. If you're really nice, [have your secretary or research assistant] burn scans or pdfs of these items onto a CD that you can send to the journal after they accept your article.
To the students: if the writer has engaged in the intellectual honesty of revealing that her source quotes something else, you don't need the something else, as the author is only asserting that the first source stands for the proposition. Remember: this is the author doing for you what I recommended above, i.e. not asking you to find the impossibly rare thing.
A related pet peeve: actually finding sources requires some expertise, so third- and fourth-years should do the source-pulling, especially when the article gets away from domestic cases and statutes and into other disciplines, other places and other kinds of materials. Second-year members have enough to do learning footnoting skills and writing their own notes without figuring out what the O.G. is.
None of this will help the power dynamic, but it may make the editors feel less like they are being used as unpaid ILL librarians and make the writers feel like the students aren't being excessively pedantic.
As an articles editor up until about a week ago, I saw it as my duty to seek out worthwhile contributions to legal research that fit our capabilities as an organization. Some pieces we accepted on a contingent basis, explaining up-front to the author that we wanted to rework a certain part or would have significant stylistic edits.
When a law review has good, capable editors, they can work with the subject-matter-expert author to improve a piece, in terms of style and logical coherence and force of argument. Some law reviews do this better than others. Yes, many law review editors are not as deferential w/r/t intellectual content as they ought to be. All the same, many authors are not as receptive to editors' comments as they ought to be.
Solove and Adler's comments are spot-on, but remember that citation-checking/standardization is one of the services that law review can do better than authors and is what gives journal-published articles a good part of their force. Yes, student editors frequently go overboard. But their attention to detail is a bit part of the value added by law reviews.
We were explcitly told that the background section of our Note must have every sentence footnoted and that footnotes should comprise 1/2 to 2/3 of the page. As if quality footnotes could be measured out like sugar. The fetish with footnotes was fascinating to behold. Explanatory parentheticals everywhere, facts of every case mentioned taking up supposedly valuable law review real estate. As Solove says: if you can't find the facts of a case from the cite, what hope is there that you'll be able to understand the legal arguments I'm making. I would often read law review articles as part of my own research and marvel at how well written and easy to read the good ones are. (Epstein's "Possession as the Root of Title" should be read by anyone who likes good legal writing, even if you could care less about property law. It's 22 pages and has 17 footnotes.) I also realized that most of those articles would be rejected nowdays; and if they were accepted they'd be edited to within an inch of their lives.
The obsession with footnotes and citation should not surprise anyone. Lacking any real ability to make substantive contributions, editors must make articles look scholarly by ramping up the small type at the bottom and insisting on strict formalism. As if adherence to rules somehow makes the writing better. I have an advanced degree in philosophy so I was interested in an article dealing with Plato, Hume and even St. Anselm came in for editing. The editor assigned the article didn't even know who Blackstone was, let alone Hume or Spinoza. So she just grinded out the footnote formalism. I could have been written in Sanskrit for all she cared. It can be utter crap and still look impressive if accompanied by long, complicated footnotes. My student Note was awful, but when I printed it out I thought to myself, "Man, it really looks like something with all those footnotes."
My biggest pet peeve, though, was the unsourced comments that were not law related and simply could not be found. Basically, you can find a legal source for just about anything, but once you start quoting things from science, economics, medicine, music, literature or whatever, it becomes much more difficult for law students to find it. Even that might not be so bad, but if you are writing about something totally obscure, you have a DUTY to either source it yourself or at least direct the editor as to where it can be found.
If you can't do either, then the editor is best to throw it out altogether, as it is likely either plagarism, or not true.
Abdul, my BusAss/Corps professor, C. Robert Morris, once told us that you can always tell a Cardozo opinion because all the sentences are written backwards -- "No answer is it to say . . ."
Several years later when The Empire Strikes Back came out, I was sure that Yoda was a reincarnation of Cardozo.
(1) no contractions
(2) no passive voice
(3) no split infinitives
mechanical applications of all of these rules impair clarity, which should be the most important goal of any academic writer.
You can be comma-crazed without being overly zealous. I do a lot of editing -- a lot -- and believe me, the comma is an underappreciated little mark.
I'm sure you've got plenty of legitimate grips with professors, but you are your own worst enemies. Both in terms of the unnecessary note requirements and apparently in your choice of articles.
>
>(1) no contractions
This is the 'rule' that absolutely kills me. It's a amazing who you can take a cogent sentence and make it unreadable by removing a couple of contractions.
As someone who has Taed philosophy and often finds other people confused at explanations I find clear as day let me say this. There is no such thing as the clear way to phrase an argument and sometimes no such thing as a clear way to phrase an argument. What one person finds clear as day can be totally opaque to another and vice versa.
This is most obvious in subjects that people understand in terms of vague opposing ideas rather than in a technical fashion. For instance many people understand the ethical question of vegetarianism as being a tension between people's enjoyment of meat and the suffering of the animal. Yet if I come along and argue for meat eating on the grounds that some life for a cow is better than none and only the beef industry will feed so many cows I have made a perfectly cogent argument but one which will likely fly over the heads of anyone who has conceptualized the subject in terms of that tension.
This becomes a problem most often in political/ideological areas where different people often conceptualize the same problem in different ways, e.g., is abortion about a woman's right to choose vs. government interference or convenience vs. murder. This is why these issues are often so difficult to discuss sanely. Law treads on many of these issues so inherits many of the same problems. An argument that is perfectly clear to someone who sees the issue one way is totally opaque to someone who sees it another.
I tend to think any time you think of something in terms of vague opposition it is an indication you are confused but that is neither here nor there. My point is just with all these people accusing each other of writing incomprehensible rubbish it seems likely that some of what is going on is that different people find different ways to put things clear.
I know that what I find clear many (most) people don't.
I assure you, footnoting once every important idea can be done. This often works out to one or two a paragraph, with the added bonus that if your paragraph has 4 non-direct-quote footnotes in it, it's almost certainly unreadably complex. Furthermore, the format really doesn't matter. If the footnote contains a title, another title, and an issue number, it's probably an article in a periodical. If it just contains a title and another title, it's a chapter from an anthology/multiauthor book of some kind. If it just has a title, it's a book. Spaces, fonts, etc are unimportant--the general rule is that you should call the publication what it calls itself.
Sure, sometimes you find yourself reading several pages to try and figure out what the source you're reading thought they were getting from the text they cited. But that helps you grasp their argument better, lets you cite the grandfather-citation yourself, and if their citation doesn't prove their point, it gives you something to disagree with them about, which makes your own paper longer and more scholarly-looking. Everybody wins!
In short, I mock you with my
monkey pantseasy citation system!Tenure decisions have been built on copy and citation editing of brilliant professions who dont' write nor edit so careful, and 33.75% of those same professors make very detailed, very important assertions with no citation to any authority. (Their blogs also lack hyperlinks.) Articles that cannot sufficiently educate a law school's best students about the articles' subject matter to the point at which those students would recognize (and avoid introducing) huge boners probably ought not be published in general circulation journals, or else they needed heavy editing before the got into the student editors' hands.
Student participation in a top-notch law review that can regularly command work from the most prestigious professors promotes judicial clerkships and desirable job offers. And yes, editing good articles (and the faculty interaction associated with that process) does contribute in several different and important ways to those students' skills and education.
Students edit each others' work most aggressively, however. Faculty authors who have earned the best national reputations tend to command lighter edits. Oftentimes they don't need heavy edits. Here's a detailed personal anecdote about editing I did as a student on a book review penned by the late and truly great Charles Alan Wright.
————————
\1/Supra at comment 39.
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\2//Id.
But: Do they know to quit when they're badly behind? I don't think so.
I think a lot of legal writers and editors expect footnotes to carry information that should be conveyed in the text.
Is this the result of gross irresponsibility by a multitude of student editors? If not, what is the explanation?
What's weird to me is that this had to have been a "gee, I've finally gotten out of school, now I can relax a bit" piece of authorial behavior -- I'd get taken down at least a full letter grade if a citation turned out to be flat-out wrong on my papers throughout undergrad (whether in History, Geography, Political Science, International Studies, or what have you.) From what I've heard, in law school and grad school it's much, much harder (at Ohio State, at least, my profs typically wanted a certain number of citations and works cited, and didn't ever give instructions to cite "ideas" as opposed to facts or direct quotes. They'd probably get seriously annoyed with the number of cites I've seen in law school papers.)